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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II DETERMINATION OF INJURY CHAPTER III INDUSTRY INJURY INVESTIGATION CHAPTER IV SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. In order to regulate the industry injury investigations under safeguard measures, the present Provisions are formulated in accordance with the Regulation on the Safeguard Measures of the People's Republic of China (hereinafter referred to the Regulation on the Safeguard Measures). Article 2. The present Provisions shall be applicable to the activities related to the industry injury investigations under safeguard measures in accordance with the Regulation on the Safeguard Measures. Article 3. The Ministry of Commerce of the People's Republic of China (hereinafter referred to MOFCOM) shall be responsible for the industry injury investigations under safeguard measures. The industry injury investigations involving agricultural products shall be conducted by the MOFCOM jointly with the Ministry of Agriculture. CHAPTER II DETERMINATION OF INJURY Article 4. The term "industry injury" refers to a serious injury or a threat of serious injury caused by the increase of imported products to the domestic industry that produces like or directly competitive products. A serious injury refers to overall and serious impairment to the domestic industry. A serious injury threat refers to a serious injury that is clearly imminent unless measures are taken against it. Article 5. When determining a serious injury or a threat of serious injury caused to the domestic industry by increased imports, the following elements shall be taken into account: (1) The increase of import products, including the absolute and relative increase rate and increase amount of imports; (2) The share of the domestic market taken by the increased imports; (3) The impact of the increased imports on the domestic industry, including the impact on the domestic industry in respect of output, sales, market share, productivity, equipment utilization rate, profits and losses, employment, etc.; and (4) Other elements that cause injury to the domestic industry. The determination of a threat of serious injury shall be based on the facts, by way of examining the productive capacity, storage, export capacity, the possibility of the continuous increase of exports to China of the export country and other elements, rather than merely on complaint, conjecture or remote possibility. Article 6. When the MOFCOM determines the impact of the increase of import products on the domestic industry, it shall, on the basis of the ascertained evidence, objectively and comprehensively evaluate various quantifiable indicators that affect the status of the domestic industry rather than simply on the ground of several indicators. Article 7. The term "like products" refers to the same products as the imported products under investigation; if not the same, the products whose nature is most similar to that of the imported products under investigation. The term "directly competitive products" refers to the domestic products not identical to the imported products under investigation, but similar to them in use, and are substantially substitutable and thus directly compete with the imported products under investigation. Article 8. In the determination of like products and directly competitive products, one shall take factors into account, such as the physical characteristics of the products, chemical features, manufacturing equipment and techniques, purposes of use, substitutability, appraisal of consumers and producers, conduit of distribution, price, etc. Article 9. When conducting industry injury investigation, the MOFCOM shall give users or consumers of imported products a chance to present their views and proofs. Article 10. As a general rule, the period subject to industry injury investigation shall be 3 ¨C 5 years before the investigation commences. CHAPTER III INDUSTRY INJURY INVESTIGATION Article 11. Where any interested party intends to participate in the investigation of an industry injury under safeguard measures, it shall file an application to the MOFCOM within 20 days from the day when an announcement on the industry injury investigation for taking safeguard measures is made, and shall go through relevant registration formalities. At the same time, it may state its views and arguments about the industry injury under investigation and offer corresponding proofs. Article 12. The interested parties shall include the following: (1) foreign producers, export business operators, and domestic import business operators of the products under investigation, or guilds or other organizations of the producers, export business operators and import business operators of the products under investigation; (2) the government of the country (region) of origin and the export country (region) of the products under investigation and the representatives thereof; (3) producers and business operators of domestic like products, or guilds or other organizations of the producers and business operators of the products; and (4) others. Article 13. Where an interested party participates in the investigation, he shall present his identification certificate. If the interested party is an enterprise or any other organization, it shall present its business license and other registration certificates, and the identification certificate of the legal representative. Where an interested party entrusts a proxy to participate in the investigation, it shall present identification certificate of the proxy and a power of attorney. Where an interested party entrusts a lawyer as his proxy, the lawyer shall come from a law firm in China and shall practice law in China, and a power of attorney, the business license of the law firm and the law-practice certification of the lawyer shall be presented. Article 14. The object of the MOFCOM's industry injury investigation for taking safeguard measures include domestic producers, domestic import business operators, domestic purchasers, domestic end consumers, foreign export business operators, foreign producers, etc. Article 15. Whenever the MOFCOM considers necessary, it may hire experts in the fields of the relevant industry, accounting, economic and trade and law to provide consultation services. The pertinent experts shall keep the secrets to themselves. Article 16. The MOFCOM shall adopt questionnaires, sampling, hearing, technical authentication, on-the-spot examination and other forms to conduct an industry injury investigation. Article 17. The questionnaires issued by the MOFCOM to the interested parties include domestic producer questionnaires, domestic importer questionnaires, domestic consumer questionnaires, foreign producer and foreign exporter questionnaires, and other types of questionnaires. Article 18. An interested party shall submit answers to the questionnaires according to the method and time limit specified in the questionnaires. If it needs to extend the time limit, it shall, 7 days prior to the time limit for the submission of answers, file a written application to the MOFCOM and make an explanation. Whether to extend the time limit or not, it shall be decided by the MOFCOM. Article 19. The MOFCOM may conduct on-the-spot examination to the interested parties. Prior to the on-the-spot examination, it shall notify the relevant interested parties of the principal purposes and content of the examination. Article 20. At the request of the interested parties or in need of the investigation, the MOFCOM may, upon the approval of the relevant country (region), dispatch persons to this country (region) to conduct investigations on the productive capacity, investments in expanding production, storage, place of origin or entrepot, the affiliation among the enterprises and other information related to the product. Article 21. The MOFCOM may demand the interested parties to submit or supplement written materials according to the relevant requirements, and the interested may voluntarily submit written materials to the MOFCOM. Article 22. At the request of the interested parties, or whenever the MOFCOM considers necessary, a hearing of industry injury may be held. Article 23. Where an interested party who participates in the industry injury investigation considers it necessary to keep the materials and the relevant evidence secret, it shall, when submitting the materials to the MOFCOM, attach a non-confidential summary of the materials, or submit confidential texts and open texts of the materials. Article 24. Where any interested party who participates in the industry injury investigation fails to provide non-confidential summary or open texts of the materials submitted by it, or fails to do so without good reasons, the MOFCOM may refuse to take the materials into account. If the MOFCOM considers it unnecessary to keep the materials submitted by an interested party secret, it may demand the interested party to withdraw its application for keeping secrets. Article 25. During the process of industry injury investigation, any interested party subject to the industry injury investigation shall faithfully state the information and offer relevant materials. Where any interested party who fails to do so, or fails to provide necessary information within a reasonable time limit, or serious interferes with the investigation by any other means, the MOFCOM may make a ruling on the basis of the facts it has already obtained and the best information available. CHAPTER IV SUPPLEMENTARY PROVISIONS Article 26. When an interested party, who participates in the industry injury investigation, submits any document or evidential material to the MOFCOM, it shall submit the original Chinese text in quintuplicate accompanied by relevant electronic text (computer floppy disks or CDs) in triplicate. Article 27. The industry injury investigation of the MOFCOM shall take the standard Chinese prescribed by the administrative department of languages of the state as the formal language. Any document, materials or information offered by an interested party shall be written in standard Chinese. As for any non-Chinese materials, a Chinese translation and the original text shall be submitted, and the Chinese translation shall prevail. Any non-Chinese materials without attaching a Chinese translation shall not be considered valid and lawful evidential material. Article 28. The power to interpret the present Provisions shall remain with the MOFCOM. Article 29. The present Provisions shall be implemented 30 days after promulgation. And on the same day when the presented Provisions are implemented, the Provisions on Safeguards Investigation and Ruling of Industry Injury (Order No. 47 (2002) of the former State Economic and Trade Commission shall be abolished. |
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