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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 antidumping investigation of industry injury, the present Provisions are formulated in accordance with the Antidumping Regulation of the People's Republic of China (hereinafter referred to Antidumping Regulation). Article 2. The present Provisions shall be applicable to the activities related to the antidumping investigation of industry injury in accordance with the Antidumping Regulation. Article 3. The Ministry of Commerce of the People's Republic of China (hereinafter referred to MOFCOM) shall be responsible for the antidumping investigations of industry injury. The antidumping investigations of industry injury 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 material injury or a threat of material injury to the established domestic industry, or material retardation of the establishment of a domestic industry caused by dumped imports. The term "material injury" mentioned in the present Provisions means the non-negligible injury caused by dumped imports to an established domestic industry. The term "threat of material injury" means that no material injury has been caused to the domestic industry, but evidence shows that a material injury to the domestic industry is clearly foreseeable and imminent unless measures are taken against it. The term "material retardation" means that the dumped imports hasn't caused material injury or hasn't formed a threat of material injury to the domestic industry, but has seriously retarded the establishment of domestic industry. Article 5. In the determination of the injury caused to the domestic industry by dumped imports, the following matters shall be examined: (1) The volume of the dumped imports and the consequential impact of dumped imports on the price of domestic like products; and (2) The consequential impact of dumped imports on domestic industry. Article 6. The examination of dumped imports shall include whether there has been a significant increase in dumped imports either in absolute terms or in relation to production or consumption of the domestic like product. The examination of the consequential impact of dumped imports on the price of domestic like products shall include whether there has been a significant price cut by the dumped imports or the dumped imports have caused a significant depression in the price of the domestic like product or prevented price increase of the domestic like product that would have occurred. Article 7. The examination of the impact of the dumped imports on the domestic industry shall include an evaluation of all relevant economic factors and indicators which have a bearing on the situation of the industry. These include actual and potential decline in sales, profits, output, market share, productivity, return on investment, or equipment utilization; the factors that have a bearing on domestic prices; the seriousness of the dumped imports; the actual or potential adverse effects on the inventories, employment, wages, growth, ability to raise capital or to make investment etc. Article 8. The determination of a material injury shall be based on the clearly foreseeable and imminent situation, in which if no measure is taken, material injury will occur. The determination of a threat of material injury shall be based on facts, rather than simply on complaint, conjecture or remote possibility. Moreover, when determining a threat of material injury, examination shall be made but not limited to the following factors: (1) Significant increase rate that shows a likely material increase of dumped imports; (2) The exporters capable of effecting an adequately free or forthcoming material increase, which shows a likely material increase of dumped exports entering the market of the importing members. When adopting this indicator, one should consider the factor whether there exist other export markets that may take in any additional exports; (3) Whether the imported product are being imported in prices of significant depression or suppression of prices of domestic like product, and it is likely to cause an increase of the demands of imports; and (4) The inventories of the product under investigation. Article 9. When determining a material retardation of the establishment of a domestic industry, examination shall, apart from the factors listed in Article 8, be made but not limited to the following factors: (1) The establishment and preparatory establishment of the domestic industry; (2) The increase of domestic demands and the consequential effects; (3) The impact of the dumped imports on the domestic market; and (4) The follow-up productive capacity of the dumped imported product and the development trends in the domestic market. Article 10. Like product is defined as a product that is identical to, or in the absence of such a product, one that has characteristics closest to those of the imported dumped product in question. Article 11. In the determination of like products, one may 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, and price, etc. Article 12. The impact of the dumped imports on domestic industry shall be evaluated on the basis of the separate definition of the production of the domestic like product. If, on the basis of the techniques of production and the producers' sales and profits, one cannot distinguish the production of domestic like product from the production of other products, the impact of dumped imports shall be determined by reference to the production of the narrowest product group or scope which include the domestic like product insofar as the product group or scope can provide sufficient information. Article 13. When determining a domestic industry, one should take account of all the producers of the domestic like product in China, or the producers whose total output forms the principal part of the total output of the domestic like product; however, if a domestic producer is associated with an export business operator or import business operator, or he himself is an import business operator of the dumped imports, he may be excluded from the domestic industry. The term "is associated with" mentioned in the preceding paragraph means that one party directly or indirectly controls or influences another party, or both parties are controlled or influenced by a third party, or both parties jointly control or influence a third party directly or indirectly. Article 14. When determining a regional industry, the following factors shall be taken into account: (1) The producers sell all or nearly all of the like product manufactured by them in this regional market; (2) The demands of the regional market aren't satisfied or aren't largely satisfied by the like-product producers in other domestic areas; and (3) Other factors. Article 15. An accumulative assessment of the impact of dumped imports on the domestic industry may be conducted if the dumped imports come from two or more countries (regions) and simultaneously meet the following requirements: (1) The dumping margin is 2% or more and the volume of dumped imports isn't negligible; and (2) According to the competition conditions among the dumped imports and those between the dumped imports and the domestic like product, it is reasonable to conduct an accumulative assessment. The term "negligible" mentioned in the preceding paragraph means that the volume of the dumped imports from a country (region) is considered negligible if it accounts for less than 3% of the total volume of the imported like product, but excluding the circumstance that countries which individually account for less than 3% collectively account for 7% or more of the total volume of imports of like product. Article 16. When making an accumulative assessment, the following factors may be taken into account: (1) The continuity and possibility of the impact of dumped imports from different countries (regions) on the domestic industry; (2) The substitutability between the dumped imports from different countries and the domestic like product, including the demands of special clients, product quality and other relevant factors; (3) The sales prices, sellers' quotations and actual transactions prices of the dumped imports from different countries (regions) and the domestic like product in the markets of a same area; (4) Whether there exist identical or similar conduits of distribution for a dumped product imported from different countries (regions) and the domestic like product, and whether they appear in the market at the same time; (5) Other competition conditions that exist among the dumped imports and between the dumped import product and the domestic like product; and (6) Other factors. Article 17. When conducting antidumping investigation of industry injury, the MOFCOM shall give users or consumers of the dumped imports a chance to present their views and proofs. Article 18. As a general rule, the period subject to antidumping investigation of industry injury shall be 3 ¨C 5 years before the investigation commences. CHAPTER III INDUSTRY INJURY INVESTIGATION Article 19. Where any interested party applies for answering the antidumping investigation of industry injury, it shall file an application to the MOFCOM within 20 days from the day when an announcement on the initiation of antidumping investigation of industry injury is made, and shall go through relevant registration formalities. At the same time, the applicant shall offer the information concerning its productive capacity, output, inventories, construction and expansion plans, the volume and amount of the product exported to China, the volume and amount of the product imported by the import business operators. Article 20. The interested parties may be: (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 21. Where an interested party is involved 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 be involved 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, a power of attorney, the business license of the law firm and the law-practice certification of the lawyer shall be presented. Article 22. The object of the MOFCOM's antidumping investigation of industry injury include domestic producers, domestic import business operators, domestic purchasers, domestic end consumers, foreign export business operators and foreign producers, etc. Article 23. Whenever the MOFCOM considers necessary, it may hire experts in the fields of the relevant industry, accounting, economics, trade, and law to provide consultation services. The pertinent experts shall keep the secrets involved to themselves. Article 24. The MOFCOM shall adopt questionnaires, sampling, hearing, technical authentication, on-the-spot examination and other forms to conduct an industry injury investigation. Article 25. 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 26. 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 27. 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 28. 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 the country (region) to conduct investigations on the productive capacity, investments in expanding production, inventories, place of origin or entrepot, the connection among the enterprises and other information related to the product. Article 29. The MOFCOM may demand the interested parties to submit or supplement written materials according to the relevant requirements, and the interested may offer to submit written materials to the MOFCOM. Article 30. At the request an interested party, or whenever the MOFCOM considers it necessary, a hearing of industry injury may be held. Article 31. Where an interested party involved 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 the confidential text and an open text of the materials. The non-confidential summary and open text shall contain reasonable substantial content of the confidential information. In the absence of substantial content, the MOFCOM may order the interested party to make up relevant content and evidential materials. Article 32. Where any interested party involved in the industry injury investigation fails to provide a non-confidential summary or an 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 secrecy purposes. Article 33. During the process of industry injury investigation, any interested party involved shall faithfully state the information and offer relevant materials. Where any interested party fails to do so, or fails to provide necessary information within a reasonable time limit, or seriously 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 34. When an interested party involved 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 the corresponding electronic text (computer floppy disks or CDs) in triplicate. Article 35. The industry injury investigation of the MOFCOM shall take the prevailing Chinese language 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 materials in any non-prevailing language, a Chinese translation and the original text shall be submitted, and the Chinese translation shall prevail. Any materials in any non-prevailing language without attaching a Chinese translation shall not be considered valid and lawful evidential material. Article 36. The power to interpret the present Provisions shall remain with the Ministry of Commerce. Article 37. The present Provisions shall be implemented 30 days after the date of promulgation. On the same day when the present Provisions are implemented, the Provisions on the Antidumping Investigation of Industry Injury and Determination (Order No. 45 (2002) of the former State Economic and Trade Commission shall be abolished. |
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