Circular No. 07/2022/TT-BCT guides the implementation of trade defense measures under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

CIRCULAR
Guidelines for Implementing Anti-Dumping and Countervailing Measures under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership

Pursuant to the Law on Foreign Trade Management No. 05/2017/QH14 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;

Implementing the Comprehensive Regional Economic Partnership Agreement;

At the request of the Director of the Department of Trade Defense, the Minister of Industry and Trade issues this Circular to guide the implementation of anti-dumping and countervailing measures under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

1. This Circular guides the application of transitional safeguard measures, anti-dumping measures, and countervailing measures under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

 

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

2. The provisions of this Circular apply to goods imported from member countries of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

1. State management agencies of Vietnam with authority to investigate, apply, and handle trade defense measures under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

Article 2. Applicability

2. Domestic and foreign traders, agencies, organizations, and individuals related to the investigation, application, and handling of trade defense measures under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

1. The RCEP Agreement is the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

Article 3. Explanation of Terms

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

2. Member Country refers to member countries of the RCEP Agreement.

3. Transitional safeguard measure under RCEP is the safeguard measure stipulated in Article 7.2 of the RCEP Agreement and Article 99 of the Law on Foreign Trade Management.

4. Transition period is the period from when the RCEP Agreement takes effect until eight years after the completion of the removal or reduction of tariffs on each type of goods according to Vietnam's tariff schedule in the RCEP Agreement.

5. The domestic industry in the investigation and application of transitional safeguard measures under RCEP is a collection of domestic producers of similar or directly competing goods within the territory of Vietnam or their representatives who account for a significant share of the total production volume of that industry produced domestically. The determination of the significant share of the domestic industry's representative is carried out in accordance with Clause 2 of Article 4 of Decree No. 10/2018/NĐ-CP.

7. Parties involved in the investigation of trade defense measures against goods imported from member countries of the RCEP Agreement include:

6. The investigating authority is the Department of Trade Remedies - Ministry of Industry and Trade.

d) The government and competent authorities of exporting member countries subject to investigation;

a) Organizations and individuals producing and exporting goods under investigation into Vietnam;

b) Organizations and individuals importing goods under investigation;

c) Associations with a majority of members being organizations and individuals producing and exporting goods under investigation;

đ) Organizations and individuals submitting applications for the application of transitional safeguard measures under RCEP or applications for the application of anti-dumping or countervailing measures against goods imported from member countries of the RCEP Agreement;

ANTI-DUMPING AND COUNTERVAILING MEASURES

e) Organizations and individuals domestically producing similar goods and directly competitive goods;

g) Domestic associations in Vietnam with a majority of members being organizations and individuals producing similar goods and directly competitive goods;

h) Other organizations and individuals having legitimate rights and interests related to the investigation or who can assist in the investigation process or represent consumer interests.

Chapter II
Article 4. Notification

1. The investigating agency has the obligation to notify the parties concerned at least seven days in advance about the plan and content of on-site investigations to verify information provided by the parties, provided that such notification does not affect the time limit for investigating the case as prescribed.

2. The investigating agency has the obligation to notify in writing the investigated member country about receiving the application for anti-dumping investigation at least seven days before the Minister of Industry and Trade decides to initiate an anti-dumping investigation.

3. The investigating agency has the obligation to notify in writing the investigated member country about receiving the application for countervailing investigation at least twenty days before the Minister of Industry and Trade decides to initiate a countervailing investigation. Upon request from the government of the relevant member country, the investigating agency has the obligation to provide a non-confidential copy of the application for countervailing investigation.

3. The investigating authority shall have the obligation to notify in writing the Member State under investigation of the receipt of the Request File for Anti-subsidy Investigation at least twenty days prior to the Minister of Industry and Trade's decision to initiate an anti-subsidy investigation. Upon request from the Government of the concerned Member State, the investigating authority shall have the obligation to provide an unclassified version of the Request File for Anti-subsidy Investigation.

Article 5. Method for Calculating Dumping Margin

When calculating the dumping margin as prescribed in points a and b, Clause 2, Article 20 of Decree No. 10/2018/NĐ-CP, the Investigating Authority must aggregate all individual margins, whether positive or negative, into the overall margin of each foreign producer or exporter. This provision does not limit the Investigating Authority's right to calculate the dumping margin as prescribed in point c, Clause 2, Article 20 of Decree No. 10/2018/NĐ-CP.

Article 6. Publication of Key Data

1. At least ten days before issuing the final decision, the Investigating Authority has the obligation to publish in writing all key data in the draft final investigation conclusion. Interested parties have the right to submit comments within the time frame stipulated in Clause 1, Article 9 of Decree No. 10/2018/NĐ-CP. The Investigating Authority will consider and respond to the comments of interested parties in the final investigation conclusion of the case.

2. Key data includes certain data serving as the basis for deciding on the application of appropriate trade defense measures in accordance with current laws on confidential information.

Article 7. Handling Confidential Information

When providing confidential information to the Investigating Authority, interested parties must provide a public summary of such confidential information in accordance with Article 11 of Decree No. 10/2018/NĐ-CP.

Chapter III
TRANSITIONAL SAFEGUARD MEASURES UNDER THE RCEP

Article 8. Principles for Applying Transitional Safeguard Measures under the RCEP

1. At the same time, transitional safeguard measures under the RCEP shall not be applied concurrently with safeguard measures provided for in Article 91 of the Law on Management of Foreign Trade for the same imported goods benefiting from special preferential tariff rates under the RCEP Agreement.

2. Transitional safeguard measures under the RCEP shall not be applied outside the transitional period.

Article 9. Basis for Conducting Investigation

1. An investigation to apply transitional safeguard measures under the RCEP shall be conducted when there is a Request File for Applying Transitional Safeguard Measures submitted by organizations or individuals in Vietnam producing similar goods or directly competing goods with the imported goods subject to the request. The file provides evidence that the importation of goods from member countries into Vietnam in excess of normal levels has caused serious injury or threatens to cause serious injury to the domestic industry.

2. Based on the recommendation of the Investigating Authority, the Minister of Industry and Trade decides to conduct an investigation to apply transitional safeguard measures under the RCEP when there is clear evidence that the importation of goods from member countries into Vietnam in excess of normal levels has caused serious injury or threatens to cause serious injury to the domestic industry.

Article 10. Request File for Applying Transitional Safeguard Measures under the RCEP

1. The Request File for Applying Transitional Safeguard Measures under the RCEP (referred to as the Request File in this Chapter) consists of the Application Form for Applying Transitional Safeguard Measures and related documents as prescribed in Article 47 of Decree No. 10/2018/NĐ-CP.

2. The Application Form for Applying Transitional Safeguard Measures under the RCEP as prescribed in Clause 2, Article 47 of Decree No. 10/2018/NĐ-CP must meet the following specific contents:

a) Name, address, and necessary information of the organization or individual representing the domestic industry;

b) Information, data, and evidence to determine the representative of the domestic industry, including a list of organizations or individuals in Vietnam producing similar goods or directly competing goods; the volume and quantity of similar goods or directly competing goods produced by the aforementioned organizations or individuals;

c) Name and address of organizations or individuals producing similar goods supporting or opposing the case;

d) Information describing the imported goods benefiting from special preferential tariff rates under the RCEP Agreement subject to the investigation to apply transitional safeguard measures, including scientific name, trade name, common name; composition; basic physical and chemical characteristics; main purpose of use; production process; international and Vietnamese standards and regulations; commodity code and special preferential tariff rate according to the Special Preferential Tariff Schedule implementing the RCEP Agreement;

đ) Information describing similar goods or directly competing goods of the domestic industry, including scientific name, trade name, common name; basic physical and chemical characteristics; main purpose of use; production process; international and Vietnamese standards and regulations;

e) Information about the volume, quantity, and value of the imported goods specified in point d of this clause during the three-year period prior to submitting the Request File and including at least six months after the RCEP Agreement took effect. The customs value of imported goods is implemented in accordance with the Agreement Implementing Article VII of the General Agreement on Tariffs and Trade (GATT 1994);

g) Information about the volume, quantity, and value of similar goods or directly competing goods of the domestic industry specified in point đ of this clause during the three-year period prior to submitting the Request File and including at least six months after the RCEP Agreement took effect. In cases where the domestic industry has been operating for less than three years, the collected data is the entire period of operation of the domestic industry up to the date of submission of the Request File;

h) Information, data, and evidence regarding serious injury or threat of serious injury to the domestic industry;

i) Information, data, and evidence regarding the causal relationship between the importation of goods specified in point d of this clause and serious injury or threat of serious injury to the domestic industry;

k) Specific requirements for applying transitional safeguard measures under the RCEP, duration of application, and level of application.

Article 11. Procedures and sequence for investigation

1. The investigation applying transitional safeguard measures under the RCEP shall be carried out in accordance with the provisions of Article 70 of the Law on Foreign Trade Management and Section 1 Chapter III of Decree No. 10/2018/NĐ-CP.

2. The period for the investigation applying transitional safeguard measures under the RCEP is one year from the date the Investigation Decision is issued.

3. Based on the recommendations of the Investigating Authority, the Minister of Industry and Trade decides to apply transitional safeguard measures under the RCEP when the investigation conclusion includes the following contents:

a) There is an absolute or relative increase in the importation of goods benefiting from preferential tariff rates under the RCEP in terms of volume and quantity compared to similar domestic products or directly competing domestic products.

b) The domestic industry suffers serious injury or is threatened with serious injury;

c) The increase in imports specified in point a of this clause is the cause of serious damage or a threat of serious damage to the domestic production industry.

Article 12. Application of transitional safeguard measures under the RCEP

1. In cases where necessary, based on preliminary investigation conclusions, the Minister of Industry and Trade may decide to temporarily apply transitional safeguard measures under the RCEP. The application of temporary transitional safeguard measures under the RCEP shall be implemented in accordance with the provisions of Clause 1 of Article 95 of the Law on Foreign Trade Management and Article 52 of Decree No. 10/2018/NĐ-CP.

2. Temporary transitional safeguard measures and transitional safeguard measures under the RCEP include:

a) Suspension of further reduction of import tariff rates as stipulated by the RCEP; or

b) Imposition of safeguard duties in the form of additional import duties on investigated goods. The total level of import tariffs according to Vietnam's Special Preferential Import Tariff Schedule to implement the RCEP and safeguard duties shall not exceed the lower rate of the effective preferential tariff rate at the time of applying such measures or the preferential tariff rate applied on the day before the RCEP came into effect.

3. The duration of applying transitional safeguard measures under the RCEP shall not exceed three years including the period of applying temporary transitional safeguard measures.

4. In cases where the duration of applying transitional safeguard measures under the RCEP, including the period of applying temporary transitional safeguard measures, exceeds one year, transitional safeguard measures must gradually reduce their level of application.

5. Transitional safeguard measures may be extended for no more than one year based on the results of the final review. The procedures and processes for the final review of transitional safeguard measures under the RCEP shall be carried out in accordance with the provisions of Clause 2 of Article 96 of the Law on Foreign Trade Management and Article 69 of Decree No. 10/2018/NĐ-CP.

6. After the expiration of the period for applying transitional safeguard measures under the RCEP, the applicable import tariff rate for related goods shall be implemented according to Vietnam's Special Preferential Import Tariff Schedule to implement the RCEP that is effective at the time of terminating the application of transitional safeguard measures.

7. Temporary transitional safeguard measures and transitional safeguard measures under the RCEP will not be applied to goods originating from Member States meeting the following conditions:

a) The market share of related goods imported from that Member State, in terms of volume and quantity, does not exceed 3% of the total imports of those goods from all Member States;

b) The total market share of related goods imported from Member States specified in point a of this clause, in terms of volume and quantity, does not exceed 9% of the total imports of those goods from all Member States.

8. Temporary transitional safeguard measures and transitional safeguard measures under the RCEP will not be applied to goods originating from less developed Member States. The determination of the list of less developed Member States shall be carried out in accordance with the provisions of Clause 2 of Article 15 of Decree No. 10/2018/NĐ-CP and the provisions of the RCEP.

9. Transitional safeguard measures under the RCEP will not be applied within one year from the date the first tariff reduction or elimination takes effect for goods originating from Member States as committed in the RCEP.

10. Transitional safeguard measures under the RCEP will not be reapplied to goods that have already been subject to transitional safeguard measures under the RCEP for a period equal to the previous application period of transitional safeguard measures under the RCEP or within one year from the expiry of such measures, whichever is longer.

Article 13. Notification and Consultation

1. The investigating authority shall have the obligation to notify in writing the Member States in the following cases:

a) The Minister of Industry and Trade decides to initiate an investigation to apply the transitional safeguard measure under the RCEP;

b) The Minister of Industry and Trade decides to terminate the investigation;

c) The investigating authority issues the draft preliminary investigation conclusion, the draft final investigation conclusion;

d) The Minister of Industry and Trade decides to temporarily apply the transitional safeguard measure under the RCEP, to apply or extend the application of the transitional safeguard measure under the RCEP;

đ) The Minister of Industry and Trade decides to amend or supplement the temporary application of the transitional safeguard measure under the RCEP or to amend or supplement the application or extension of the application of the transitional safeguard measure under the RCEP.

2. The notification in writing pursuant to point a, Clause 1 of this Article includes:

a) Information describing the imported goods benefiting from the special preferential tariff rate under the RCEP Agreement subject to the investigation for the application of the transitional safeguard measure, including the name, code, and the special preferential tariff rate according to the Special Preferential Tariff Schedule implementing the RCEP Agreement;

b) A summary of the reasons for the Minister of Industry and Trade's decision to initiate the investigation;

c) The date on which the Minister of Industry and Trade decided to initiate the investigation and the period of investigation.

3. The notification in writing pursuant to point c and point d, Clause 1 of this Article includes:

a) Information describing the imported goods benefiting from the special preferential tariff rate under the RCEP Agreement subject to the investigation for the application of the transitional safeguard measure, including the name, code, and the special preferential tariff rate according to the Special Preferential Tariff Schedule implementing the RCEP Agreement;

b) Evidence of serious injury or threat of serious injury caused by the increase in imports of goods originating from the Member States being investigated due to the reduction or elimination of tariffs under the RCEP Agreement;

c) Information describing the proposed temporary transitional safeguard measure, the proposed transitional safeguard measure;

d) The date of proposing the temporary transitional safeguard measure, the transitional safeguard measure, the expected duration of the measure, and the phased reduction in the level of application of the transitional safeguard measure;

đ) Evidence showing that the domestic production industry is adjusting in the case where the Minister of Industry and Trade decides to extend the application of the transitional safeguard measure.

4. The notification in writing pursuant to point đ, Clause 1 of this Article includes:

a) Information describing the imported goods benefiting from the special preferential tariff rate under the RCEP Agreement subject to the investigation for the application of the transitional safeguard measure, including the name, code, and the special preferential tariff rate according to the Special Preferential Tariff Schedule implementing the RCEP Agreement;

b) The content of amending or supplementing the temporary application of the transitional safeguard measure or amending or supplementing the application or extension of the application of the transitional safeguard measure.

5. The investigating authority shall have the obligation to send the notification in writing to the Member States of the RCEP Agreement before the Minister of Industry and Trade decides to temporarily apply the transitional safeguard measure.

6. The investigating authority shall have the obligation to provide the Member State with a copy or the web address of the electronic page publishing the public version of the investigation reports on the matter. The reports provided shall be in the Vietnamese language.

7. The consultation upon request of the parties involved during the investigation for applying or reviewing the extension of the transitional safeguard measure under the RCEP shall be carried out in accordance with Clause 1 of Article 13 of Decree No. 10/2018/NĐ-CP.

Article 14. Compensation

1. The implementation of the compensation procedure when Vietnam investigates, applies, or extends the transitional safeguard measure under the RCEP shall be carried out in accordance with Article 7.7 of the RCEP Agreement.

2. The authority to implement the compensation procedure shall be carried out in accordance with Clause 3 of Article 98 of the Law on Management of Foreign Trade.

Chapter IV
IMPLEMENTING PROVISIONS

Article 15. Effective Date

This Circular takes effect from May 8, 2022.