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Provisions for Industry Injury Investigations and Decisions of Antidumping Cases
State Economic and Trade Commission of the PRC
December 13, 2002
Chapter 1 General Provisions
Article 1 The Provisions are promulgated in order to regulate the investigation and determination of industry injury of
anti-dumping pursuant to the Regulations on Anti-dumping of the People's Republic of China (hereinafter Anti-dumping Regulations).
Article 2 The Provisions shall apply to any activity in relation to applications for initiating anti-dumping investigations, investigations and determinations of industry injuries pursuant to the Anti-dumping Regulations.
Article 3 The State Economic and Trade Commission (hereinafter as SETC) shall be responsible for the investigation and determination of antidumping industry injuries. SETC and the Ministry of Agriculture shall conduct the investigations of industry injuries concerning agriculture jointly.
Article 4 The Bureau for Industry Injury Investigation under the SETC shall be responsible for the implementation of the Provisions.
Chapter 2 The Determination of Causal Relationship
Article 5 Injury shall mean material injury or threat of material injury to an existing domestic industry or material
retardation of the establishment of such an industry. Material injury shall mean the injury that has been caused to
domestic industry that is not neglectable.
The threat to material injury shall mean that material injury has not occurred yet but there is evidence showing that if no measure is taken, material injury to domestic industry is inevitable.
Material retardation shall mean that there is no material injury or threat of such, but the establishment of such an
industry is substantially retarded.
Article 6 A determination of material injury to the domestic industry shall take into consideration the following factors:
6.1 whether there has been a significant increase in the volume of the dumped imports, either in absolute terms or
relative to production or consumption of domestic similar products；
6.2 whether there has been a significant price undercutting by the dumped imports as compared with the price of domestic similar products, or whether the price of domestic similar products has been depressed to a significant degree;
6.3 the overall impact of dumped imports on all relevant
economic factors and indices of domestic industry, including
the actual and potential decline in sales, profit, output,
market share, productivity, return on investment, or
utilization of capacity; factors affecting domestic prices;
the magnitude of the margin of dumping; actual and potential
negative impact on cash flow, inventories, employment, wages,
growth, ability to raise capital or investments.
6.4 the export capacity, production capacity and inventories
of the exporting country (region) or country (region) of
origin of the dumped imports;
6.5 Other factors
Article 7 A determination of a threat of material injury to
domestic industry shall take into consideration the following
factors:
7.1 a significant increase of dumped imports or the likelihood
of substantially increased imports;
7.2 the depressing or suppressing effect of dumped imports on
the prices of domestic similar products, or the likelihood of
such depressing and suppressing；
7.3 the actual and potential capacities of production and
exportation of exporters or related exporters in the exporting
country (region) or country (region) of origin of dumped
imports;
7.4 inventories of dumped imports in the exporting country
(region) or country (region) of origin; the trend of
inventories' fluctuation of exporters or related exporters;
7.5 impact of dumped imports on the domestic industry or the
likelihood of such impact;
7.6 the impact of the dumped imports on the market of a third
country (region);
7.7 Other factors
A determination of a threat of material injury shall be based
on facts and not merely on allegation, conjecture or remote
possibility.
Article 8 A determination of the retardation of the
establishment of the domestic industry shall take into
consideration of the following factors:
8.1 the establishment and preparation for establishment of
domestic industry;
8.2 the growth of domestic demand and its implications;
8.3 the impact of dumped imports on domestic market;
8.4 the subsequent production capacity and trend of
development in domestic market of dumped imports;
8.5 Other factors.
Article 9 A determination of a causal relationship between the
dumped imports and the injury to the domestic industry shall
be based on an examination of all relevant factors and indices
comprehensively and objectively by the SETC. Factors other
than the dumped imports, which at the same time are causing
injuries to the domestic industry must not be attributed to
the dumped imports. The factors in this respect include, inter
alia, contraction in demand or change in the patterns of
consumption, trade restrictive practices of and competition
between foreign and domestic producers, the import performance
of dumped imports in other countries (regions), technology
development, export performance and productivity of domestic
industry, force majeure.
Article 10 Similar products in these Provisions shall mean a
product which is identical to the dumped imports; or in
absence of such an identical product, a product which has
characteristics that most closely resemble those of the dumped
imports.
Article 11 A determination of a similar product may take into
consideration the following factors: physical and chemical
attributes, use, manufacturing equipment and process,
evaluation of consumers and producers, substitutability, sales
channels and price.
Article 12 The impact of dumped imports shall be assessed in
relation to the domestic production of a similar product when
separate identification of that production is possible. When
such separate identification is not possible, the impact of
the dumped imports shall be assessed by examination of the
production of the narrowest group or range of products,
including the similar product.
Article 13 SETC may exclude the investigated products or part
of the products that have not caused injury to domestic
industry. Anti-dumping measures shall not apply to the
excluded products.
Article 14 Domestic industry shall refer to the domestic
producers as a whole of the similar product/s, or those of the
producers whose collective output of the products constitutes
a major proportion of the total domestic production of those
similar products; however, producers who are related to
exporters or importers or who are themselves importers of
similar products shall be excluded from the domestic industry.
"Being related" as referred to in the previous Article 14
shall mean a situation where one of the parties directly or
indirectly controls the other; or both of them are directly or
indirectly controlled by a third person; or together they
directly or indirectly control a third person.
Article 15 A determination of regional industry shall be based
on the following factors:
15.1 the producers sell all or most of their production of the
similar product within that regional market;
15.2 The demand in the market is not at all or is not to a
substantial degree supplied by producers of the similar
products located elsewhere in the territory;
15.3 Other factors
Article 16 Where imports of a product from more than one
country (region) are subject to anti-dumping investigation,
SETC may cumulatively assess the impact of such dumped imports
if it is determined that:
16.1 the dumping margin of the dumped imports from each
country is not less than 2% and the volume of the imports from
each country is not negligible;
16.2 a cumulative assessment of the impact of the imported
products is appropriate in the light of the conditions of
competition between the imported products and the conditions
of competition between the imported products and the similar
domestic product.
"Negligible" as referred to in the previous paragraphs shall
mean that the volume of the dumped imports from one country
(region) accounts for less than 3% of imports of the similar
product in the importing country, unless countries (regions)
individually account for less than 3% of the imports of the
similar product collectively account for more than 7% of the
import of the similar product in the importing country.
Article 17 The following factors may be taken into account in
cumulatively assessing the impact of dumped imports:
17.1 the sustainability and likelihood of injury to the
domestic industry caused by dumped imports from various
countries (regions);
17.2 the substitutability between dumped imports and a similar
domestic product from various countries (regions), including
specific requirements of customers, quality and other relevant
factors;
17.3 the sales prices, seller's quotations and actual prices
of transactions of dumped imports and the domestic similar
products within a regional market;
17.4 whether the dumped imports from various countries
(regions) and the domestic similar products share the same or
similar sales channels and whether they appear in the market
simultaneously;
17.5 other conditions of competition between dumped imports
and the conditions of competition between dumped imports and
the domestic similar products;
17.6 other factors.
Article 18 The SETC shall take into account public interest in
the investigation and determination of industry injury and may
investigate the effects of anti-dumping measures on public
interest.
The SETC shall provide full opportunities for users and
consumers of the dumped imports to present statements and
evidence.
Article 19 The investigation period of injury to domestic
industry in anti-dumping cases shall be three years prior to
the initiation of the investigation.
Chapter 3 Investigation of Injury to the Domestic Industry
Article 20 The SETC shall commence the review of the
application for initiating an anti-dumping investigation and
its evidence attached after receiving from the Ministry of
Foreign Trade and Economic Cooperation (hereinafter as MOFTEC)
such application and evidence and a MOFTEC consultation
request. The review shall determine whether an anti-dumping
investigation shall be initiated within 30 days thereafter; if
necessary, the review period may be extended by another 15
days.
Should the SETC determine the application and its evidence as
incomplete, the applicant shall provide further documents to
make the same complete within the prescribed period as
requested by the SETC.
Article 21 The application for Anti-dumping Investigation
shall include the following evidentiary materials:
21.1 The materials required to be included in the application
according to the Anti-dumping Regulations;
21.2 the type of injury, i.e. material injury, threat of
material injury or retardation of establishment of the
domestic industry;
21.3 If two or more countries (regions) are involved, the
reasons and justifications of cumulative assessment shall be
provided;
21.4 other factors contributing to the injury to domestic
industry and other evidentiary materials.
Article 22 The investigation may be initiated when the
application is considered to have been made "by or on behalf
of the domestic industry" if it is supported by those domestic
producers whose collective output constitutes more than 50 per
cent of the total production of the similar product produced
by that portion of the domestic industry expressing either
support for or opposition to the application. However, no
investigation shall be initiated when domestic producers
expressly supporting the application account for less than 25
per cent of total production of the similar product produced
by the domestic industry.
Article 23 All interested parties that apply for the defense
of the anti-dumping investigation shall submit such
application to and register for that purpose with the SETC
within 20 days after the date of the public notification of
initiation of investigation; and shall provide information
about their production capacity, output, inventories,
production expansion plan; export volume and value of the
products exported to China; volumes and values of the products
imported by their importers.
Article 24 Interested parties may include:
24.1 foreign producers, exporters, importers of the product in
question; or the trade societies or other organizations of the
producers, exporters and importers;
25.2 the governments and the representatives of the countries
(regions) of origin or exporting countries (regions) of the
product in question;
25.3 producers or dealers of the domestic similar product, or
their trade societies and other organizations.
25.4 other parties.
Article 25 The interested parties shall provide relevant
identity documents. In cases where the interested parties are
enterprises or other organizations, business licenses or other
registration certificates of such enterprises or organizations
as well as the identity information of legal representatives
thereof shall be provided.
In cases, where interested parties designate their
representatives for the purpose of the investigation, identity
information of such representatives and an affidavit of
authority shall be furnished. In cases where lawyers are
designed as the representatives, only Chinese law firms and
Chinese licensed lawyers can be designed, whose business
license and practice license shall be submitted together with
the affidavit of authority for that purpose.
Article 26 The objects of the investigation of injury to
domestic industry shall include domestic producers, domestic
importers, domestic buyers and end users, foreign producers
and dealers of the product in question.
Article 27 The SETC may engage experts in the industry,
accounting and finance, trade and commerce, law etc. to
provide expert opinions if necessary. Such experts shall keep
relevant information confidential.
Articles 28 The SETC may use questionnaires, sampling,
hearing, technical appraisal, on-the-spot investigation and
other methods in the investigation of industry injury.
Article 29 The questionnaires distributed by the SETC to
interested parties may include questionnaires for domestic
producers, domestic importers, foreign producers and
exporters, and other types of questionnaires.
Article 30 Interested parties shall return the questionnaires
in the manner and within the time limit as prescribed by SETC.
Any request for extension of the time limit shall be made
seven days prior to the end of the time limit and be
presented, on request, in writing to the SETC. Such request
shall be subject to the approval by SETC.
Article 31 The SETC may carry out on-the-spot investigation of
interested parties. Prior to the on-the-spot investigation,
interested parties shall be informed of the main intention and
content of such investigation.
Article 32 Subject to the approvals by the concerned
countries' (regions') authorities, if requested by the
interested parties or necessitated by the practical needs of
the investigation, the SETC may assign personnel to such
countries (regions) to investigate the production capacity,
expansion of capital or production, inventories, origin,
entrepot trade, relationships between firms etc.
Article 33 The SETC may require the interested parties to
provide or supplement written materials; the interested
parties may voluntarily submit written materials to SETC.
Article 34 As requested by interested parties and determined
to be necessary by the SETC, an industry injury hearing may be
carried out pursuant to the Provisions for Carrying out the
Hearing of Industry Injury.
Article 35 After receiving the MOFTEC consultation letter and
attached evidence concerning a price undertaking, SETC shall
review and determine whether such a price undertaking is
sufficient to eliminate the injury to domestic industry within
30 days; if necessary, such period may be extended by 15 days.
Should the SETC determine that the relevant evidence is
incomplete, exporters that take out price undertakings or
accept suggestions of price undertakings shall provide
supplementary information or evidence as requested by the SETC
within the prescribed time limit.
Article 36 In cases where exporters fail to take out price
undertakings or refuse to accept price undertaking
suggestions, the investigation and determination of injurious
effects on domestic industry shall not in any way be hindered;
should the exporters continue to dump the imports, the SETC
shall be entitled to determine that the injury to domestic
industry is more likely to occur.
Article 37 Should the SETC find the price undertakings
acceptable, the investigation into the injurious effects on
domestic industry shall be suspended or terminated.
Article 38 The suspended or terminated investigation may be
resumed if requested by exporters or determined as necessary
by the SETC.
Article 39 In cases where exporters have violated the price
undertakings, the SETC may resume the investigation and
determine the injury to the domestic industry on the basis of
the best available information.
Article 40 The interested parties to an investigation
providing materials or evidence on a confidential basis shall
furnish a non-confidential summary of such materials or
evidence, or furnish a confidential text and a public text
separately.
The non-confidential summary or the public text shall express
the substance of the information or evidence submitted in
confidence in a reasonable manner; otherwise, the SETC may
require additional materials or evidence.
Article 41 If the SETC finds that a request for
confidentiality is not warranted and if the interested
partyproviding the information is either unwilling to make the
information public or to authorize its disclosure in a
summarized form, the SETC may disregard such information; if
the SETC determines that the request for confidentiality is
not warranted, SETC may require the intered parties providing
such information to withdraw such arequest.
Article 42 During the investigation and determination of the
injury to the domestic industry, the interested parties shall
provide information and materials truthfully. In cases in
which any interested party refuses access to, or otherwise
does not provide necessary information within a reasonable
period, or significantly impedes the investigation, the SETC
may make determinations on the basis of the known facts and
the best available information.
Article 43 After the initiation of the investigation and prior
to the final determination, any interested party shall be
provided access to the public information relevant to the
investigation at SETC. Within a reasonable period after the
final determination, the interested parties may see the public
information at SETC too.
Article 44 The interested parties shall provide identity
documents and go through the prescribed procedures prior to
seeing the public information.
Article 45 The interested parties may copy the public
information, but must not remove the originals of such
information from the SETC.
The SETC shall provide necessarily facilities for the
interested parties to see the information.
Chapter 4 Determination of Injury to Domestic Industry
Article 46 SETC shall make a preliminary determination of the
existence of the injury and the causal relationship between
the dumping of the imports in question and such injury on the
basis of the results of preliminary investigations.
Article 47 If it is preliminarily determined that the dumping
has had injurious effects on the domestic industry and such
injurious effects are causally related to the dumping, the
SETC shall carry out further investigation into the injury and
the magnitude thereof prior to the final determination of the
injury and the causal relationship between the injury and the
dumping.
Article 48 The investigation of injury to the domestic
industry shall be terminated in cases where:
48.1 the applicants withdraw their applications for
anti-dumping investigation;
48.2 there is no sufficient evidence to prove the causal
relationship between the dumping and the injury;
48.3 the actual or potential volume of the importation of the
product in question is negligible;
48.4 The SETC decides it is inappropriate to continue the
investigation on the basis of public interest considerations.
If 48.2 and 48.3 are applicable to the importation of the
products in question from one or several countries (regions),
the SETC shall terminate the investigation of the products in
question exported from such countries (regions).
Article 49 After the anti-dumping duty takes effect, the SETC
shall review all the relevant evidence and provide its
opinions with regard to whether to carry out a mid-term review
after receiving the MOFTEC consultation letter and attached
evidence for such purpose. Such review by the SETC shall be
completed within 30 days and may be extended by another 15
days if necessary.
The period of anti-dumping duties and price undertakings shall
not exceed 5 years. Six months prior to the end of such
period, SETC shall furnish a public notification regarding the
pending maturity of anti-dumping duties and price
undertakings. Domestic industry or the representatives thereof
shall submit their applications for sunset review within 20
days after the date of release of such notification.
Within 30 days after the above 20 days period for sunset
review applications, SETC shall review all relevant evidence
of sun-set review applications and carry out sunset review
regarding whether the termination of anti-dumping duties or
price undertakings will cause the injury to continue or
reoccur; if necessary, an extension of 15 days may be made.
If no sunset application has been submitted by the domestic
industry and their representatives and it is found necessary
by the SETC, the SETC may, by its own decision, carry out the
sunset review regarding whether the termination of
anti-dumping duties or price undertakings will cause the
injury to continue or reoccur.
If the SETC finds the relevant information or evidence
incomplete, the SETC may require the interested parties to
furnish supplementary evidence within a prescribed period.
Article 50 The SETC shall make an official verdict with
respect to the findings of midterm and sunset reviews.
Article 51 On the basis of the findings of the reviews, the
SETC shall review all relevant evidence provided and decide
whether to maintain, revise or call off the undertakings
within 30 days after receiving the MOFTEC consultation letter
and attached evidence for such purpose; an extension of 15
days may be made if necessary.
If SETC finds the relevant information or evidence incomplete,
the SETC may require the interested parties to furnish
supplementary evidence within a prescribed period.
Article 52 The procedures of the reviews carried out by the
SETC are according to the relevant provisions concerning
antidumping investigations.
Chapter 5 Circumvention and Anti-circumvention
Article 53 The following activities constitute circumventions
of anti-dumping measures:
53.1 exportation of the products in question to China after being assembled or processed in a third country (region);
53.2 exportation of the products in question to China after such products are changed or processed in form in order to qualify as another tariff item that is free from anti-dumping duty;
53.3 exportation of parts and components of the product in question to be assembled in China;
53.4 exportation into China of the subsequent products of the products in question.
53.4 other activities
Article 54 The SETC may carry out anti-circumvention investigations in respect of the above circumvention
activities.
Article 55 A determination of circumventions shall take into account the following factors:
55.1 whether circumventions as described in Article 53 occurred before and after the initiation of anti-dumping
investigations;
55.2 the value of the parts and components of the products in question exported from the dumping countries (regions) or third countries' (regions) accounts for a significant portion of the value of such products.
55.3 the value of raw materials of the products in question exported from the dumping countries (regions) or third
countries (regions) accounts for a significant portion of the value of all the raw materials of such products;
55.4 the added value after the processing or assembling the products levied of anti-dumping duties accounts for an
insignificant portion of the values of the processed or assembled products;
55.5 the circumventions significantly reduce the effects of anti-dumping duties;
55.6 the matters of fact in respect of the dumping and injury of the products levied of anti-dumping duties;
55.7 other factors.
Article 56 If the circumventions of anti-dumping measures cause injury to domestic industry, SETC may take appropriate measures to prevent such circumventions.
Chapter 6 Supplementary Provisions
Article 57 The interested parties shall furnish original
documents and evidence in quintuplicate in Chinese together
with electronic versions (floppy disks or CD-ROMs) of such
documents and evidence in triplicate.
Article 58 The official languages of industry injury investigations and determinations of the SETC shall be generally used languages as prescribed by the language use authorities of the PRC. All the documents, materials and
information provided by the interested parties shall be in such generally used languages. The materials written in other languages shall be accompanied by translated versions in the generally used language as described above. The translated versions shall prevail over the versions in their original languages. Written materials furnished in languages other than the generally used languages and not accompanied by translated versions shall not be accepted as valid and legitimate evidence.
Article 59 The SETC reserves the right of explanation in respect of the Provisions.
Article 60 The provisions shall take effect from January 1, 2003 |
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