Circular No. 06/2018/TT-BCT detailing certain contents regarding anti-dumping and countervailing measures

CIRCULAR

Regulations on certain contents regarding anti-dumping, anti-subsidy, and safeguard measures

BASED ON THE FOREIGN TRADE MANAGEMENT LAW dated June 12, 2017;

Pursuant to Decree No. 10/2018/NĐ-CP dated January 15, 2018, of the Government detailing some articles of the Law on Foreign Trade Management regarding trade remedy measures;

Pursuant to Decree No. 98/2017/NĐ-CP dated August 18, 2017, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Industry and Trade;

At the proposal of the Director of the Department of Trade Defense;

THE MINISTER OF INDUSTRY AND TRADE ISSUES THE CIRCULAR specifying details on certain contents regarding anti-dumping, countervailing duty, and safeguard measures.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

THIS CIRCULAR SPECIFIES DETAILS REGARDING INTERESTED PARTIES IN AN INVESTIGATION; ACTIVITIES OF PROVIDING, COLLECTING INFORMATION AND DOCUMENTS AND SECURING SUCH INFORMATION AND DOCUMENTS; LANGUAGES AND WRITTEN FORMATS DURING THE INVESTIGATION; IMPORT MANAGEMENT OF GOODS SUBJECT TO INVESTIGATION AND APPLICATION OF ANTI-DUMPING, COUNTERVAILING DUTY, AND SAFEGUARD MEASURES; CASES OF EXEMPTION FROM APPLYING ANTI-DUMPING, COUNTERVAILING DUTY, AND SAFEGUARD MEASURES.

Article 2. Applicability

1. STATE ADMINISTRATIVE AUTHORITIES WITH AUTHORITY TO INVESTIGATE, APPLY, AND ENFORCE ANTI-DUMPING, COUNTERVAILING DUTY, AND SAFEGUARD MEASURES.

2. Vietnamese traders, foreign traders, domestic and foreign organizations and individuals related to investigations, application, and handling of anti-dumping, anti-subsidy, and safeguard measures.

Article 3. Explanation of Terms

In this Circular, the following terms are understood as follows:

1. SPECIAL PRODUCTS ARE PRODUCTS WITH SIMILAR PHYSICAL AND CHEMICAL CHARACTERISTICS AS COMPARABLE GOODS OR DIRECT COMPETITORS PRODUCED DOMESTICALLY BUT HAVE SOME DIFFERENT FEATURES, OUTWARD APPEARANCE, OR PRODUCT QUALITY THAN COMPARABLE GOODS OR DIRECT COMPETITORS PRODUCED DOMESTICALLY.

2. Public information document means a document that has been processed to remove confidential information requested by the investigating authority and ensures that the recipient understands the essence of the information without disclosing confidential information.

ARTICLE 4. LANGUAGES AND WRITTEN FORMATS DURING THE INVESTIGATION AND APPLICATION OF ANTI-DUMPING, COUNTERVAILING DUTY, AND SAFEGUARD MEASURES

1. THE LANGUAGE AND WRITTEN FORMAT USED DURING THE INVESTIGATION AND APPLICATION OF ANTI-DUMPING, COUNTERVAILING DUTY, AND SAFEGUARD MEASURES IS VIETNAMESE. INTERESTED PARTIES HAVE THE RIGHT TO USE THEIR OWN LANGUAGE AND WRITTEN FORMAT, IN WHICH CASE A TRANSLATOR MUST BE PROVIDED.

2. INFORMATION AND DOCUMENTS NOT IN VIETNAMESE SUBMITTED BY INTERESTED PARTIES MUST BE TRANSLATED INTO VIETNAMESE. INTERESTED PARTIES MUST ENSURE THE TRUTHFULNESS, ACCURACY, AND BE RESPONSIBLE UNDER THE LAW FOR THE CONTENT OF THE TRANSLATION.

ARTICLE 5. REGISTRATION OF INTERESTED PARTIES IN AN INVESTIGATION AND APPLICATION OF ANTI-DUMPING, COUNTERVAILING DUTY, AND SAFEGUARD MEASURES

1. AFTER THE MINISTER OF INDUSTRY AND TRADE ISSUES THE DECISION TO CONDUCT AN INVESTIGATION OR REVIEW OF AN ANTI-DUMPING, COUNTERVAILING DUTY, OR SAFEGUARD MEASURE CASE, ORGANIZATIONS AND INDIVIDUALS AS PROVIDED FOR IN CLAUSE 1, ARTICLE 74 OF THE FOREIGN TRADE MANAGEMENT LAW HAVE THE RIGHT TO REGISTER TO PARTICIPATE IN THE INVESTIGATION AND APPLICATION OF ANTI-DUMPING, COUNTERVAILING DUTY, AND SAFEGUARD MEASURES AS INTERESTED PARTIES.

2. THE INVESTIGATING AUTHORITY SHALL DETERMINE THE DEADLINE FOR REGISTRATION OF INTERESTED PARTIES IN EACH INVESTIGATION AND APPLICATION OF ANTI-DUMPING, COUNTERVAILING DUTY, AND SAFEGUARD MEASURES CASE, BUT NOT LESS THAN 20 WORKING DAYS FROM THE EFFECTIVE DATE OF THE DECISION TO CONDUCT AN INVESTIGATION OR REVIEW OF AN ANTI-DUMPING, COUNTERVAILING DUTY, OR SAFEGUARD MEASURE CASE.

3. ORGANIZATIONS AND INDIVIDUALS SHALL REGISTER USING THE INTERESTED PARTY REGISTRATION FORM ANNEXED TO THIS CIRCULAR AT ANNEX 01 AND SEND IT TO THE INVESTIGATING AUTHORITY WITHIN THE REGISTRATION DEADLINE STATED IN THE DECISION TO CONDUCT AN INVESTIGATION OR REVIEW OF AN ANTI-DUMPING, COUNTERVAILING DUTY, OR SAFEGUARD MEASURE CASE.

4. AFTER RECEIVING THE INTERESTED PARTY REGISTRATION FORM, THE INVESTIGATING AUTHORITY SHALL CONFIRM ACCEPTANCE OR REJECTION OF THE ORGANIZATION OR INDIVIDUAL AS AN INTERESTED PARTY IN THE CASE WITHIN 07 WORKING DAYS. IF THE INVESTIGATING AUTHORITY REJECTS THE ORGANIZATION OR INDIVIDUAL AS AN INTERESTED PARTY, IT SHALL PROVIDE THE REASON.

5. IF AN ORGANIZATION OR INDIVIDUAL DOES NOT REGISTER TO PARTICIPATE AS AN INTERESTED PARTY WITHIN THE PERIOD STATED IN CLAUSE 2 OF THIS ARTICLE, THE INVESTIGATING AUTHORITY MAY REJECT SUCH ORGANIZATIONS AND INDIVIDUALS AS INTERESTED PARTIES IN THE CASE, EXCEPT FOR THE ORGANIZATIONS AND INDIVIDUALS AS PROVIDED FOR IN POINT A AND POINT D, CLAUSE 1, ARTICLE 74 OF THE FOREIGN TRADE MANAGEMENT LAW AND THE GOVERNMENT, THE AUTHORIZED AUTHORITY OF THE EXPORTING COUNTRY IN THE ANTI-SUBSIDY CASE AS PROVIDED FOR IN POINT D, CLAUSE 1, ARTICLE 74 OF THE FOREIGN TRADE MANAGEMENT LAW.

6. ORGANIZATIONS AND INDIVIDUALS WHO ARE APPROVED AS INTERESTED PARTIES SHALL HAVE RIGHTS AND OBLIGATIONS AS PROVIDED FOR IN ARTICLES 9 AND 10 OF THE GOVERNMENT DECREE NO. 10/2018/NĐ-CP DATED JANUARY 15, 2018, SPECIFYING DETAIL ON CERTAIN PROVISIONS OF THE FOREIGN TRADE MANAGEMENT LAW ON ANTI-DUMPING, COUNTERVAILING DUTY, AND SAFEGUARD MEASURES.

Article 6. Import Declaration Form

The Import Declaration Form in the Import Declaration File shall be implemented according to the model issued together with this Circular at Appendix 02.

Chapter II

PROVISIONS ON INFORMATION SUPPLY, DOCUMENTS AND INFORMATION SECURITY IN THE INVESTIGATION AND IMPLEMENTATION CASEMEASURES FOR TRADE DEFENSE

Article 7. Types of information to be disclosed in the investigation and implementation of anti-dumping measures

The public information form of the following types of information and documents shall be disclosed in the investigation and implementation of anti-dumping measures:

1. Investigation request file and accompanying appendices provided by the requesting party;

2. Documents provided by interested parties for registration to participate in the case;

3. Responses to questions and supplementary responses provided by interested parties during the investigation process;

4. Other documents provided by interested parties to the Investigating Authority during the investigation and implementation of anti-dumping measures including: documents for organizing consultation meetings; opinions on the Investigation Request File, application of anti-dumping measures provided by interested parties;

5. Minutes of meetings or summaries of public consultations related to the investigation case;

6. Notifications from the Investigating Authority and the Ministry of Industry and Trade, including notifications regarding receipt of the Investigation Request File, application of anti-dumping measures, preliminary conclusions, final conclusions, notifications regarding registration of interested parties and sending questionnaires, on-site investigations, public consultations, scope limitations of sample investigations;

7. Documents on the contents of anti-dumping investigations serving as the basis for the final conclusion of the Investigating Authority;

8. Other information considered for public disclosure by the Investigating Authority during the investigation process.

Article 8. Requests for information confidentiality in the investigation and implementation of anti-dumping measures

1. The investigating authority shall consider and approve requests for confidentiality of information provided by the parties involved in trade remedy investigations, including:

a) Business secrets related to the nature of a product or production process;

b) Information about the production and business activities of enterprises including production costs; sales costs; sales terms but not publicly provided sales terms; specific transaction prices, anticipated transactions, or other offers; information about specific customers, distributors, suppliers; financial information of the enterprise;

c) Information about the accurate margin of dumping for each specific transaction in the anti-dumping investigation case;

d) Information about the benefit that the Respondent requests to enjoy for each subsidy program under investigation or review in the anti-subsidy investigation case, except for information describing the operation of the program, quantities recorded in documents or officially published; subsidy rate calculated per transaction sale for each Respondent requested in a program;

đ) Other information if the investigating authority determines that disclosing such information to the public could significantly affect or harm the competitive advantage of the information provider.

2. In cases where the confidentiality request is not approved, within seven working days from the date of receiving the confidentiality request, the Investigating Authority shall notify the requesting party of the reasons for non-approval.

Chapter III

EXEMPTION FROM APPLICATION OF TRADE DEFENSE MEASURES

Section 1

SCOPE, OBJECTS, CRITERIA AND REVIEW PERIOD

EXEMPTION FROM APPLICATION OF TRADE DEFENSE MEASURES

Article 9. Scope and Duration of Exemption from Anti-dumping Measures

1. The Minister of Industry and Trade shall consider exempting certain imported goods from temporary anti-dumping measures or formal anti-dumping measures in cases where such goods have characteristics different from similar domestic products or directly competing domestic products that cannot be replaced by those domestic products.

a) Imported goods have distinct characteristics from similar domestic products or directly competing domestic products produced by the domestic industry that cannot be replaced.

b) Imported goods are special products of similar domestic products or directly competing domestic products produced by the domestic industry.

c) Similar domestic products or directly competing domestic products produced by the domestic industry are not sold on the domestic market under normal conditions.

d) The quantity of similar domestic products or directly competing domestic products produced by the domestic industry is insufficient to meet domestic demand.

2. The duration of exemption from anti-dumping measures shall be determined as follows:

a) For applications for exemption from anti-dumping measures received by the Investigating Authority pursuant to Clause 1, Article 13 of this Circular, the exemption period runs from the date the decision on the application of temporary anti-dumping measures or formal anti-dumping measures or the decision on the review of anti-dumping measures becomes effective until December 31 of the year in which the exemption decision is issued.

b) For applications for exemption from anti-dumping measures received by the Investigating Authority pursuant to Clause 2, Article 13 of this Circular, the exemption period is one year, running from January 1 to December 31 of the following year.

c) For additional applications for exemption received by the Investigating Authority pursuant to Clause 4, Article 13 of this Circular, the exemption period runs from the date the complete and valid application for exemption is received until December 31 of the year in which the exemption decision is issued.

Article 10. Subjects Requesting Exemption from Anti-dumping Measures

Subjects requesting exemption from anti-dumping measures include:

1. Organizations and individuals importing goods subject to investigation and application of anti-dumping measures;

2. Organizations and individuals using goods subject to investigation and application of anti-dumping measures for production;

3. Other organizations and individuals determined by the Minister of Industry and Trade.

Article 11. Criteria for Considering and Form of Exemption from Anti-dumping Measures

1. The Minister of Industry and Trade shall consider and decide on exemptions for goods falling within the categories eligible for exemption from anti-dumping measures as stipulated in Clause 1, Article 9 of this Circular based on the investigation report submitted by the Investigating Authority.

2. In each specific case, the Investigating Authority shall examine goods proposed for exemption from anti-dumping measures based on one or more of the following criteria:

a) The trade name, physical characteristics, and chemical characteristics of the goods proposed for exemption to distinguish them from goods subject to anti-dumping measures.

b) Technical standards of the goods proposed for exemption.

c) Quality of the goods proposed for exemption.

d) Purpose of use of the goods proposed for exemption.

đ) Production capacity of similar or directly competing domestic goods with the goods proposed for exemption by the domestic industry.

e) Replacement capability of similar or directly competing domestic goods produced by the domestic industry with the goods proposed for exemption.

g) Other criteria as decided by the Minister of Industry and Trade.

3. Organizations and individuals are granted exemption from anti-dumping measures based on the volume or quantity of imported goods.

Section 2

APPLICATION FOR EXEMPTION, INSPECTION AND RECOVERY OF EXEMPTION

MEASURES FOR TRADE DEFENSE

Article 12. Application File for Exemption from Anti-Dumping Measures

1. The initial application file for exemption from anti-dumping measures (hereinafter referred to as the exemption application file) shall include the following documents and materials:

a) An application form for exemption from anti-dumping measures according to the model issued together with this Circular at Appendix 03;

b) A copy of the business registration certificate or investment certificate of the enterprise;

c) Information describing the imported goods for which exemption is requested, including: scientific name, trade name, common name; basic physical and chemical characteristics; main purpose of use; production process; international and Vietnamese standards; commodity code according to the list of Vietnamese export and import goods and the applicable import tariff rate at each period;

d) Information on the quantity, volume, and value of imported goods for which exemption is requested (usually for the last three years and the current year);

đ) Production process of products using the imported goods proposed for exemption as input material (if any);

e) Demand for consumption or use of imported goods proposed for exemption (usually for the last three years and the current year);

g) Consumption quota or usage quota of raw materials being imported goods proposed for exemption;

h) Documents, materials, or samples proving the difference between the goods proposed for exemption and the imported goods subject to anti-dumping measures;

2. In cases where organizations or individuals submit additional exemption application files to the Investigating Authority as stipulated in Clause 4, Article 13 of this Circular, the additional exemption application file shall include the following documents and materials:

a) An application form for exemption (additional) from anti-dumping measures according to the model issued at Appendix 03 accompanying this Circular;

b) Information on the quantity, volume, and value of imported goods for which additional exemption is requested;

c) Information, documents, and evidence regarding the suitability of the additional exemption request with the legal provisions on exemption from anti-dumping measures;

d) Other relevant documents suitable for the content of the request for amendment or supplementation;

3. Based on the initial or additional exemption application file submitted by organizations or individuals, the Investigating Authority shall be responsible for reviewing the file and reporting to the Minister of Industry and Trade for consideration of issuing the first-time or additional exemption decision from anti-dumping measures;

Article 13. Notification of Receipt of Exemption Application File

1. After the Minister of Industry and Trade issues a decision on the temporary or final application of anti-dumping measures or a decision on the review results of anti-dumping measures, the Investigating Authority has the obligation to notify the receipt of the exemption application file;

2. For self-defense measure cases, every October, the Investigating Authority notifies the receipt of the exemption application file. In case of changes to the self-defense measures, the Investigating Authority promptly informs organizations and individuals requesting exemption so that they can plan their business accordingly;

3. Within thirty days from the date the Investigating Authority notifies the receipt of the exemption application file, the entities requesting exemption must submit the exemption application file as prescribed in Article 12 of this Circular to the Investigating Authority, except in cases stipulated in Clause 4 of this Article;

4. In cases where organizations or individuals granted exemption wish to supplement exempted goods in the exemption decision on anti-dumping measures within the exemption period, those entities requesting additional exemption may submit additional exemption application files to the Investigating Authority;

5. Within fifteen working days from the date of receiving the notification requesting supplementation from the Investigating Authority, the entities requesting exemption have the responsibility to provide complete and accurate information on the supplemented contents as required.

Article 14. Content of the Decision on Exemption from the Application of Anti-Dumping Measures

1. Name of the organization or individual exempted from the application of trade remedy measures;

2. Description of the imported goods exempted from the application of trade remedy measures;

3. Quantity of the imported goods exempted from the application of trade remedy measures;

4. Duration of the exemption, conditions, and obligations of the organization or individual exempted from the application of trade remedy measures.

Article 15. Refund of Anti-Dumping Duties

1. In cases where imported goods are exempted from the application of anti-dumping measures, organizations and individuals shall be refunded the anti-dumping duties they have paid for import consignments declared within the exemption period specified in the exemption decision.

2. The procedures for refunding anti-dumping duties as stipulated in Clause 1 of this Article shall be implemented in accordance with current laws.

Article 16. Periodic Reports

Every six months during the exemption period, organizations and individuals who are exempted from the application of anti-dumping measures must submit periodic reports on the importation of exempted goods and compliance with the conditions and obligations of the exemption to the Investigating Authority using the form attached as Appendix 4 to this Circular.

Article 17. KAudit after exemption

1. Post-exemption verification shall be conducted according to risk management methods prescribed by law to select inspection targets, scope, and content of the exemption files.

2. Post-exemption verification aims to assess the compliance of organizations and individuals with the conditions and legal provisions regarding the exemption from the application of anti-dumping measures in the exemption files.

3. Contents of post-exemption audit include:

a) Verifying the legal status of organizations and individuals exempted;

b) Verifying the accuracy of goods exempted according to the exemption files submitted to the Investigating Authority;

c) Verifying the completeness, legality, and validity of customs declarations, accounting books, financial reports, documents, data related to imported goods exempted;

d) Verify the compliance of the conditions and obligations of the entities requesting exemption as stated in the exemption decision.

Article 18. Implementation of Post-Exemption Verification

1. Based on the Investigating Authority's proposal, the Minister of Industry and Trade decides on the verification and establishes the verification team. The head of the verification team must be a civil servant of the Investigating Authority. The verification team conducts verification within the scope, time, and content specified in the decision establishing the verification team.

2. The Investigating Authority shall notify the verification decision and plan to organizations and individuals exempted from the application of anti-dumping measures in writing at least five working days before conducting the verification.

3. During the implementation of post-exemption verification, the Investigating Authority has the right to verify through requesting relevant organizations and individuals or those capable of clarifying issues of concern, inconsistencies, or signs of legal violations. Verification activities include:

a) The subjects of verification are state management agencies, organizations, and individuals related to the matter.

b) Forms of verification include sending written requests and requiring written responses; or dispatching personnel to work directly with the verification subject based on an introduction letter from the requesting party.

c) The results of verification are recorded in a working record; this record serves as a basis for considering the case.

4. Organizations and individuals subject to verification have the responsibility to appoint authorized representatives and relevant staff to provide documents, vouchers, and materials as required and to directly discuss the verification contents with the verification team.

Article 19. Inspection Results after exemption

1. Based on the verification results, the verification team shall immediately prepare a verification report after completing the verification at the verification site and report the verification results to the verification authority and inform the organization or individual subject to verification.

2. Depending on the degree of violation identified in the verification results, the verification team shall recommend the verification authority to handle the situation, revoke the exemption decision, or transfer the file on the violation behavior of the organization or individual to the competent authority as prescribed by law.

3. In cases where a verification conclusion is issued as stipulated in Clause 2 of this Article, the head of the verification team shall send a draft verification conclusion to the organization or individual subject to verification. Within five working days from the date of receipt of the draft verification conclusion, the organization or individual subject to verification shall submit comments (with explanatory documents and supporting evidence) if they disagree with the content of the draft verification conclusion.

4. If the deadline specified in Clause 3 of this Article has expired and the inspected organization or individual does not submit their comments, it shall be deemed that they agree with the content of the draft inspection conclusion.

5. After the comment solicitation period, the inspection team shall have the responsibility to:

a) Review the explanation provided by the organization or individual subject to verification or meet with the authorized representative of the organization or individual subject to verification if there are unresolved issues or need further clarification.

b) For cases requiring specialized technical expertise or where the verification team lacks sufficient grounds to issue a conclusion, the issuance of the verification conclusion shall be carried out after obtaining opinions from specialized agencies or units.

Article 20. Revocation of Exemption Decisions

1. The Minister of Industry and Trade shall revoke exemption decisions that have been issued in the following cases:

a) Imported goods exempted are used for purposes other than those intended;

b) Fraud in requesting exemptions for anti-dumping or anti-subsidy measures;

c) Failure to comply with provisions, conditions, and obligations set forth in the exemption decision;

d) The conditions for exemption no longer exist.

2. Organizations and individuals whose exemption decisions are revoked must pay taxes in accordance with the law.

          Chapter IV

IMPLEMENTING PROVISIONS

Article 21. Responsibilities of the Investigating Authority

1. Prior to issuing a decision to apply anti-dumping or anti-subsidy measures, the Investigating Authority shall notify and seek comments on the draft investigation conclusion from the Requesting Party and the Responding Party.

2. The Investigating Authority shall be responsible for:

a) Sending exemption decisions to organizations and individuals who submitted exemption applications;

b) Sending decisions to revoke exemption decisions to organizations and individuals who were granted exemptions;

c) Send the exemption decision and the decision to revoke the exemption decision to the Ministry of Finance and the General Department of Customs in writing;

d) Publishing exemption decisions and decisions to revoke exemption decisions on the Ministry of Industry and Trade's electronic portal and the Investigating Authority's website.

Article 22. Effectiveness

1. This Circular takes effect from June 15, 2018.

2. During the implementation of this Circular, if there are any difficulties, organizations and individuals should promptly reflect them to the Investigating Authority and the Ministry of Industry and Trade for consideration and resolution.