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	REPLY OF THE OFFICE OF LEGISLATIVE AFFAIRS OF THE STATE COUNCIL TO THE "LETTER OF THE CUSTOMS TARIFF COMMISSION UNDER THE STATE COUNCIL FOR THE CLARIFICATION OF THE RELEVANT ISSUES CONCERNING ADMINISTRATIVE RECONSIDERATION ON ANTI-DUMPING"

	(Letter No.18 [2003] of the Office of Legislative Affairs of the State Council Implemented as of the Date of Promulgation, March 4, 2003)


SUBJECT : FOREIGN TRADE; ANTI-DUMPING
ISSUING DEPARTMENT : THE STATE COUNCIL OF THE PEOPLE'S REPUBLIC OF CHINA
ISSUE DATE : 03/04/2003
IMPLEMENT DATE : 03/04/2003
LENGTH : 1,033 words
TEXT :

The "Letter of the Tariff Policy Committee under the State Council for the Clarification of the Relevant Issues concerning Administrative Reconsideration on Anti-dumping" (No.6 [2003] of the Tariff Policy Committee) has been received. We hereby give the following letter of reply upon deliberation:

I. In the formulation of the Anti-dumping Regulation of the People's Republic of China, we were considering to change the organ responsible for determining the collection of anti-dumping duty into the Ministry of Finance, but because of the different opinions of the relevant parties concerning it, the Regulation has finally followed the system that the power to determine the collection of anti-dumping duty shall be exercised by the Tariff Policy Committee under the State Council prescribed in the Anti-dumping and Countervailing Regulations of the People's Republic of China.

II. According to the provisions of the Anti-dumping Regulation of the People's Republic of China, the Tariff Policy Committee under the State Council shall, according to the suggestions of the Ministry of Foreign Trade and Economic Cooperation, make decisions on whether to collect anti-dumping duties or not, and the decisions on tracing back the collection, tax refund and collection of tax on new export operators, and make corresponding decisions according to the suggestions put forward by the Ministry of Foreign Trade and Economic Cooperation on cases reexamined concerning the keeping, amending or canceling of anti-dumping duties. Therefore, the relevant decisions on collection of anti-dumping duties are the concrete administrative acts made by the Tariff Policy Committee under the State Council according to its legal authority.

III. Article 53 of the Anti-dumping Regulation of the People's Republic of China prescribed where anyone has any objections to the decisions made in accordance with Chapter IV of the said Regulation on whether to collect anti-dumping duties or not and the decisions on tracing back the collection, tax refund or collection of tax on new export operators, or has any objections to the reconsideration decisions made according to Chapter V of the said Regulation, he/it may apply for administrative reconsideration according to law. According to the provisions of Article 14 of the Administrative Reconsideration Law of the People's Republic of China, where any party has any objections to the relevant decisions made by the Tariff Policy Committee under the State Council according to its legal authority on collection of anti-dumping duty, the Tariff Policy Committee under the State Council shall accept and hear the case according to law.

Attachment:
1. Letter of the Tariff Policy Committee under the State Council for the Clarification of the Relevant Issues concerning Administrative Reconsideration on Anti-dumping

Attachment 1:

LETTER OF THE TARIFF POLICY COMMITTEE UNDER THE STATE COUNCIL FOR THE CLARIFICATION OF THE RELEVANT ISSUES CONCERNING ADMINISTRATIVE RECONSIDERATION ON ANTI-DUMPING

(No.6 [2003] of the Tariff Policy Committee under the State Council February 19, 2003)

The Decision of the Tariff Policy Committee under the State Council on Adjusting the Rate of Anti-dumping Duty on Polyester Film of the South Korean Toray Saehan Inc. (No. 13 [2002] of the Tariff Policy Committee under the State Council) came into force on January 4, 2003. As we know, the Toray Saehan Inc. has objections to this decision, and may apply for administrative reconsideration to the Tariff Policy Committee under the State Council (hereinafter referred to the TPC) in the near future according to the provisions of Article 14 of the Administrative Reconsideration Law, that is "Where anyone has any objections to the concrete administrative act of the departments of the State Council, he/it may apply for administrative reconsideration to the said departments of the State Council that conduct the concrete administrative act."

We think, according to the Notice of the Office of the State Council on the Main Functions and Name Lists of Members of the Tariff Policy Committee under the State Council (No. 143 [1998] of the Office of the State Council), the TPC is not a permanent organ of the State Council, and it has no relevant organs that can accept the application for administrative reconsideration, therefore, it seems that the TPC shall not accept the applications for such reconsideration. According to the relevant provisions of the Anti-dumping Regulation and our practices, the power to make public announcement to foreigners in the anti-dumping work shall be exercised by the Ministry of Foreign Trade and Economic Cooperation (MOFTEC) uniformly. The TPC can only make decisions on the basis of the suggestions of the MOFTEC and the State Economic and Trade Commission, and the decisions shall not be made directly to the parties, but shall be sent to the MOFTEC and the Customs General Administration, and shall be implemented after being announced to the foreigners by the MOFTEC. The documents that have legal force to the parties finally are the public announcement of the MOFTEC, but not the decisions of the TPC. Thereby, we think that the application for reconsideration shall be accepted and handled by the MOFTEC. But the attorney at law of the Toray Saehan Inc. in China, the T & D Law Firm expressed that the administrative reconsideration organs of the MOFTEC held that the decision on collection of anti-dumping duty was made by the TPC, and according to the provisions of the Administrative Reconsideration Law, the application for reconsideration of the anti-dumping cases shall be accepted and handled by the department of the State Council, the TPC, who made the said concrete administrative act.

The anti-dumping, countervailing and safeguard measures are the three major means of remedies for protection of domestic industries permitted by the WTO rules, ever since our county's entry into the WTO, there are increasingly more and more anti-dumping investigations initiated by our country, and the reconsideration cases will increase accordingly, in order to protect the legal litigation rights of the parties, and accurately perform the relevant commitments of our country for entering into the WTO, we think it is necessary to clarify the organs accepting such kinds of reconsideration.

According to the provisions of the Administrative Reconsideration Law, the time limit for the Toray Saehan Inc. to file an administrative reconsideration shall expire on March 4, 2003. In order to handle the relevant matters concerned, we expect you to give a reply as soon as possible.