Decree No. 150/2003/NĐ-CP detailing the implementation of the Ordinance on Self-Defense Measures in the Importation of Foreign Goods into Vietnam

DECREE

Detailed implementation regulations for the Ordinance on Anti-dumping in the Importation of Foreign Goods into Vietnam

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;
Based on Ordinance No. 42/2002/PL-UBTVQH10 dated May 25, 2002, on Anti-dumping in the Importation of Foreign Goods into Vietnam;
At the proposal of the Minister of Trade,

DECREE

PART I

GENERAL PROVISIONS

Article 1. Scope of application

This Decree provides detailed implementation regulations for the Ordinance on Anti-dumping in the Importation of Foreign Goods into Vietnam; it specifies anti-dumping measures; procedures for investigation and application of these measures in cases where imported goods exceed normal levels, causing serious damage to domestic production industries.

Article 2. Anti-dumping Measures

Anti-dumping measures in the importation of foreign goods into Vietnam include:

1. Increasing the import tariff above the current import tariff level;

2. Applying import quotas;

3. Applying tariff quotas;

4. Applying absolute duties;

5. Granting import licenses to control imports;

6. Imposing additional duties on imported goods;

7. Other measures.

Article 3. Determination of Domestic Production Industry

The domestic production industry is the entire group of manufacturers of similar goods or directly competing goods within the territory of Vietnam or their legitimate representatives holding at least 50% of the total production volume of such goods produced domestically.

Article 4. Explanation of Concepts

In this Decree, the following concepts are understood as follows:

1. "Excessive Importation of Goods"is the importation of goods in quantities, amounts, or value that increase absolutely or relatively compared to the quantities, amounts, or value of similar or directly competing goods produced domestically."

2. "Serious Damage to the Domestic Production Industry"is a situation where the production industry experiences a significant decline in production volume, domestic consumption, production profit, production growth rate; increased inventory levels; negative impacts on employment, wages, investment, and other indicators of the domestic production industry producing such goods."

3. "Threat of Causing Serious Damage to the Domestic Production Industry"is a clear and provable certainty about the serious damage caused to the domestic production industry."

4. "Similar Goods"are identical or similar goods in function, utility, quality indices, technical features, and other basic attributes."

5. "Directly Competing Goods"are goods capable of being accepted by buyers as substitutes for goods subject to anti-dumping measures due to price advantage and intended use."

Chapter II

INVESTIGATION TO APPLY ANTI-DUMPING MEASURES

Article 5. Investigation Procedures

1. The Ministry of Trade is responsible for conducting investigations before deciding to apply or not apply anti-dumping measures.

2. An investigation shall be conducted when:

a) There is a request for the application of anti-dumping measures from organizations or individuals representing the domestic production industry in accordance with Article 10 of the Ordinance on Anti-dumping in the Importation of Foreign Goods into Vietnam.

b) There is evidence proving the necessity to apply anti-dumping measures.

3. Based on the request for the application of anti-dumping measures or reviewed evidence, the Ministry of Trade decides to initiate an investigation or not initiate an investigation according to the principles stipulated in Article 12 of the Ordinance on Anti-dumping in the Importation of Foreign Goods into Vietnam.

4. During the investigation, relevant state agencies, organizations, and individuals have the responsibility to cooperate and provide necessary information upon request from the Ministry of Trade.

5. After completing the investigation (within the time limit specified in Article 18 of the Ordinance on Anti-dumping in the Importation of Foreign Goods into Vietnam), the Ministry of Trade publicly announces the investigation results.

6. Based on the investigation results, after consulting with all parties involved; seeking opinions if necessary from related ministries and sectors regarding the form of anti-dumping measures (if applied) and the consequences of applying such measures, the Ministry of Trade issues a decision to apply or not apply anti-dumping measures. This decision must be publicly announced.

Article 6. Content of the Request for Application of Anti-dumping Measures

The request for the application of anti-dumping measures, prescribed by the Ministry of Trade, includes the following main contents:

1. Detailed description of the imported goods based on technical characteristics and usage features, along with the commodity code and applicable import tariff rate corresponding to the current Vietnamese Import-Export Commodity List.

2. Detailed description of similar or directly competing goods based on technical characteristics and usage features;

3. Names and addresses of individuals, enterprises, or organizations representing enterprises named in the request and representatives of similar or directly competing goods manufacturers;

4. Percentage of imported goods quantity relative to the production volume of similar or directly competing goods domestically of the individuals, organizations, or enterprises named in the request;

5. Information on the quantity, amount, and value of imported goods under investigation for the current year and each of the three consecutive years prior to the request for the application of anti-dumping measures;

6. Description of the increase in imports, either absolutely or relatively compared to domestic production;

7. Information related to serious damage or threat of serious damage to the domestic production industry for the current year and each of the three consecutive years prior to the request for the application of anti-dumping measures, including:

a) Quantity, amount, and value of similar or directly competing goods produced domestically;

b) Utilization rate of production capacity;

c) Market share;

d) Inventory level;

đ) Profit or loss level;

e) Labor productivity index;

g) Number of workers, labor ratio, and income in the domestic production industry;

h) Changes in consumption of goods: quantity, price level;

i) Any other necessary related information.

8. Information related to the potential increase in imports and export capacity or inventory levels of exporting countries for goods under investigation leading to a threat of serious damage to the domestic production industry, if applicable.

9. Explanation regarding serious damage that has occurred, is occurring, or is likely to occur, threatening to cause serious damage due to excessive imported goods;

10. Specific request for anti-dumping measures, application of provisional anti-dumping measures, and the duration of such measures;

11. Domestic production industry adjustment plan to enhance competitiveness with the imported goods subject to the anti-dumping investigation;

Article 7. Content of the decision to initiate an investigation to apply anti-dumping measures;

The Ministry of Commerce's decision to commence an investigation to apply anti-dumping measures, including the following contents:

1. Detailed description of the imported goods subject to the investigation, including technical characteristics, usage features of the goods, tariff code in the import tariff schedule along with the applicable import tariff rate, consistent with the current Vietnamese Import-Export Goods List;

2. Detailed description of similar goods or directly competitive goods, including technical characteristics and usage features;

3. Names of enterprises and representatives of domestic organizations or individuals producing similar goods or directly competitive goods (if any) requesting the application of anti-dumping measures;

4. Country or countries of origin of the goods subject to the investigation;

5. Summary information on the increase in imports of the goods subject to the investigation and serious damage or risk of causing serious damage to domestic production due to the increase in imports;

Article 8. Content of the investigation into serious damage or threat of serious damage;

The investigation to determine the increase in imports of goods causing or threatening to cause serious damage to the domestic production industry is based on the following factors:

1. Absolute or relative percentage increase in imports of the goods subject to the investigation compared to the production of similar or directly competitive goods in the domestic production industry;

2. Impact of the increase in imports of the goods subject to the investigation on the domestic market share;

3. Price level of the goods subject to the investigation compared to the price of similar or directly competitive goods in the domestic production industry;

4. Impact of the increase in imports of the goods subject to the investigation on the domestic production industry through factors such as: production volume, capacity utilization rate, consumption level, market share, price level, labor productivity, profit or loss ratio, employment rate, income, and other factors causing or posing a risk of causing serious damage to the domestic production industry;

5. Inventory levels, potential, actual export capacity, and potential for increasing exports of the goods subject to the investigation from one country or several exporting countries;

6. Other relevant factors necessary for the investigation;

Article 9. Confidentiality of information

The Ministry of Commerce is responsible for maintaining confidentiality of information provided by state agencies, organizations, or individuals related to the investigation process; it shall not be publicly disclosed without the consent of the information provider;

Article 10. Consultation during the investigation;

1. Parties involved in the investigation have the right to present written evidence; engage in debate and express economic and social interests when applying anti-dumping measures;

2. The Ministry of Commerce will consult with parties involved in the investigation and record consultation minutes to be publicly announced, except for confidential information;

Chapter III

APPLICATION OF ANTI-DUMPING MEASURES;

Article 11. Notification of the application of provisional anti-dumping measures;

The decision to apply provisional anti-dumping measures before the conclusion of the investigation is carried out according to the principles stipulated in Article 20 of the Ordinance on Anti-Dumping Measures for Imported Goods into Vietnam;

The notification of the application of provisional anti-dumping measures includes the following contents:

1. Detailed description of the imported goods subject to the investigation, including technical characteristics and usage features of the goods, tariff code in the import tariff schedule along with the applicable import tariff rate, consistent with the current Vietnamese Import-Export Goods List;

2. Detailed description of similar goods or directly competitive goods, including technical characteristics and usage features;

3. Names of enterprises producing similar or directly competitive goods, if any;

4. Country or countries of origin of the goods subject to provisional anti-dumping measures;

5. Increase in import tariffs when applying provisional anti-dumping measures;

6. Duration of the provisional anti-dumping measures;

7. Information and evidence proving that the increase in imports of the goods subject to the investigation causes or threatens to cause serious damage to the domestic production industry, if any;

8. Information and evidence proving that delaying the application of provisional anti-dumping measures would cause or threaten to cause serious damage to the domestic production industry and would be difficult to remedy;

Article 12. Refund of the difference in import tariffs when applying provisional anti-dumping measures;

1. In cases where the investigation results of the Ministry of Commerce show that the application of provisional anti-dumping measures is unnecessary or should only be set at a lower increase in import tariffs than the applied increase, the difference in tariffs will be refunded to the taxpayer. The Ministry of Commerce will issue a decision on this matter;

2. The difference in tariffs referred to in Clause 1 of this Article will be refunded within thirty days from the date the Ministry of Commerce issues a decision to apply or not apply anti-dumping measures;

3. No interest will be paid on the difference in tariffs referred to in Clause 1 of this Article;

4. The Ministry of Finance is responsible for conducting tax refund procedures in accordance with current laws based on the decision of the Ministry of Commerce as stipulated in this Article;

Article 13. Application of anti-dumping measures against less developed countries;

1. Anti-dumping measures may not be applied to imported goods originating from a less developed country if the quantity of goods imported from that country into Vietnam does not exceed three percent of the total quantity of goods subject to the anti-dumping investigation.

2. Anti-dumping measures shall still apply to imported goods originating from less developed countries if the total quantity of such goods imported into Vietnam exceeds 9% of the total quantity of goods subject to investigation for the application of anti-dumping measures, notwithstanding the provisions of Clause 1 of this Article.

3. The determination of a country as a less developed country shall be based on the United Nations criteria for classifying less developed countries.

Article 14. Notification of the application of anti-dumping measures

The decision to apply anti-dumping measures must be publicly announced with the following contents:

1. A detailed description of the imported goods subject to anti-dumping measures, including technical characteristics, usage features of the goods, commodity codes in the import tariff schedule along with the applicable import tariff rates, consistent with the current Vietnamese Import-Export Goods List;

2. Detailed description of similar goods or directly competitive goods, including technical characteristics and usage features;

3. The names of enterprises producing similar goods or directly competing goods;

4. The name of the country or countries of origin of the goods subject to anti-dumping measures;

5. A summary of the investigation results showing the necessity to apply anti-dumping measures;

6. The form and level of application of anti-dumping measures;

7. The effective date and duration of the application of anti-dumping measures;

8. A summary of evidence regarding serious damage or threat of serious damage;

9. Adjustment plans of the domestic industry producing similar goods or directly competing goods;

10. Refund of differential import duties during the period of temporary measures (if any);

11. The name of the country or countries of less developed status exempted from the application of anti-dumping measures in accordance with the provisions of Article 13 of this Decree;

Article 15. Consultation before applying anti-dumping measures

1. Prior to making a decision to apply anti-dumping measures, the Ministry of Trade shall provide adequate consultation opportunities with countries having significant interests in exporting goods subject to anti-dumping measures to Vietnam.

2. The Ministry of Trade may negotiate with countries having significant interests as provided in Clause 1 of this Article regarding forms of compensation for damages to mitigate adverse effects resulting from the application of anti-dumping measures.

Chapter IV

IMPLEMENTING PROVISIONS

Article 16. This Decree shall take effect fifteen days after its publication in the Official Gazette.

Article 17. Responsibility for Implementation

1. The Minister of Trade shall be responsible for guiding and organizing the implementation of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of People's Committees of provinces and centrally-administered cities shall be responsible for implementing this Decree.