Circular No. 37/2019/TT-BCT provides detailed regulations on certain contents regarding anti-dumping measures.

CIRCULAR

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

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          Pursuant to the Law on Foreign Trade Management dated June 12, 2017;

          Pursuant to Decree No. 10/2018/NĐ-CP dated January 15, 2018 of the Government detailing certain provisions of the Law on Foreign Trade Management concerning anti-dumping, anti-subsidy, and safeguard 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 promulgates this Circular detailing certain contents regarding anti-dumping, anti-subsidy, and safeguard measures.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

          This Circular specifies details on related parties in investigations; activities of providing, collecting information and documents and securing confidentiality of such information and documents; languages and scripts during the investigation process; management of imported goods subject to investigation and application of anti-dumping, anti-subsidy, and safeguard measures; cases exempted from application of such measures.

          Article 2. Applicability

          1. State agencies authorized to investigate, apply, and handle anti-dumping, anti-subsidy, 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 shall be understood as follows:

1. Special product means a product with physical and chemical characteristics similar to those of similar goods or directly competing goods produced domestically but having some different features, external shapes, or product quality compared to similar goods or directly competing goods 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.

3. Trade defense investigation authority (hereinafter referred to as the Investigating Authority) is the Department of Trade Defense - Ministry of Industry and Trade.

          Article 4. Languages and Scripts During the Investigation and Application of Anti-Dumping, Anti-Subsidy, and Safeguard Measures

1. Vietnamese is the language and script used during the investigation and application of anti-dumping, anti-subsidy, and safeguard measures. Related parties have the right to use their own ethnic language and script, provided that there must be an interpreter in such cases.

2. Information and documents not in Vietnamese provided by related parties must be translated into Vietnamese. Related parties must ensure the truthfulness and accuracy of the translated content and bear legal responsibility for it.

Article 5. Obligation to Provide Information of the Investigating Authority

          1. Before issuing a decision to apply anti-dumping or anti-subsidy measures, the Investigating Authority shall notify and seek opinions 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) Sending exemption decisions and decisions to revoke exemption decisions to the Ministry of Finance;

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 6. Registration of Related Parties in Investigations and Applications of Anti-Dumping, Anti-Subsidy, and Safeguard Measures

          1. After the Minister of Industry and Trade issues a decision to initiate an investigation or review a case of trade defense, organizations and individuals as stipulated in Clause 1, Article 74 of the Law on Foreign Trade Management have the right to register to participate in the investigation and application of anti-dumping, anti-subsidy, and safeguard measures as related parties.

2. The Ministry of Industry and Trade shall specify the deadline for registering related parties in each investigation and application of anti-dumping, anti-subsidy, and safeguard measures case, but not less than 60 working days from the date the investigation or review decision takes effect.

          3. Organizations and individuals shall register using the Related Party Registration Form at Appendix I attached to this Circular and submit it to the Investigating Authority within the registration period specified in the investigation or review decision.

          4. Upon receipt of the Related Party Registration Form, except for organizations and individuals as stipulated in points a, d, and f of Clause 1, Article 74 of the Law on Foreign Trade Management, the Investigating Authority shall be responsible for confirming acceptance or non-acceptance of organizations and individuals as related parties in the case within seven working days. If the organization or individual is not accepted as a related party, the Investigating Authority shall clearly state the reasons.

          5. In cases where organizations and individuals register as related parties after the deadline specified in Clause 2 of this Article, the Investigating Authority may consider accepting them as related parties in the case.

6. Organizations and individuals accepted as related parties shall have rights and obligations as prescribed in Articles 9 and 10 of Decree No. 10/2018/NĐ-CP dated January 15, 2018 of the Government detailing certain provisions of the Law on Foreign Trade Management concerning anti-dumping, anti-subsidy, and safeguard measures.

      Article 7. Import Declaration Forms

1. The import declaration form for goods subject to investigation and application of anti-dumping, anti-subsidy, and safeguard measures as prescribed in Article 8 of Decree No. 10/2018/NĐ-CP dated January 15, 2018 of the Government in the import declaration dossier shall be implemented according to the model at Appendix II attached to this Circular.
2. The procedure for declaring import as prescribed in Clause 1 of this Article may be carried out electronically in accordance with the provisions of the law.

Chapter II

PROVISIONS ON INFORMATION SUPPLY, DOCUMENTS AND INFORMATION SECURITY IN TRADE REMEDY INVESTIGATIONS

MEASURES FOR TRADE DEFENSE

Article 8. Types of information to be disclosed in trade remedy investigations

Where the parties involved request, the investigating authority shall provide a public version of the following types of information and documents:

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

2. Documents submitted by the parties involved for registration to participate in the investigation;

3. Responses to questionnaires and supplementary responses provided by the parties involved during the investigation process;

4. Documents submitted by the parties involved to the investigating authority during the investigation and application of trade defense measures including those for organizing consultations; opinions on the investigation request file provided by the parties involved;

5. Minutes of public consultation sessions or summaries thereof related to the investigation conducted by the investigating authority;

6. Notifications issued by the investigating authority and the Ministry of Industry and Trade, including notifications regarding receipt of the investigation request file, review and application of trade defense measures, preliminary conclusions, final conclusions, registration of interested parties, sending questionnaires, public consultation sessions, scope of investigation samples, acceptance or rejection of commitment proposals;

7. Other information related to the trade remedy investigation that the investigating authority considers appropriate to disclose during the investigation process.

Article 9. Requests for Confidentiality of Information in Trade Remedy Investigations

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 relating to the nature of a product or production process;

b) Non-public information about business operations, financial activities of enterprises including production costs; selling expenses; sales terms; specific transaction prices, anticipated transactions, or other offers; customer, distributor, supplier information; enterprise financial information;

c) Information on the dumping margin of each specific enterprise in anti-dumping investigations;

d) Information on benefits received by the requested party from each subsidy program under investigation or review in anti-subsidy investigations, except for information describing the operation of the program, benefits recorded in documents or publicly disclosed; subsidy rates calculated per transaction for each requested party within a program;

e) Other information determined by the investigating authority to be likely to cause significant harm to the provider of the information or to persons from whom the information was obtained, or significantly affect the competitive advantage of the information provider if disclosed.

2. In cases where the confidentiality request is not approved, the investigating authority shall notify the reasons clearly within 45 days from the date of receipt of the request.

Chapter III

EXEMPTION FROM APPLICATION OF TRADE DEFENSE MEASURES

Section 1

SCOPE, TIME LIMIT, OBJECTS, CRITERIA FOR CONSIDERATION

EXEMPTION FROM APPLICATION OF TRADE DEFENSE MEASURES

Article 10. Scope of Exemption from Anti-Dumping Measures

The Minister of Industry and Trade shall consider exempting anti-dumping measures temporarily or officially applied to certain imported goods under one of the following circumstances:

1. Goods that cannot be produced domestically;

2. Goods with characteristics different from domestically produced goods which cannot be substituted;

3. Goods are special products of similar goods or directly competing goods produced domestically;

4. Similar goods or directly competing goods produced domestically are not sold on the domestic market under normal conditions;

5. Similar goods or directly competing goods produced domestically do not meet the domestic demand;

6. Imported goods within the total quantity for exemption specified in Clauses 1 to 5 of this Article serving research, development, and other non-commercial purposes.

Article 11. Duration of Exemption from Anti-Dumping Measures

1. For cases of exemption from anti-dumping measures according to point a, Clause 1, Article 16 of this Circular, the duration of the exemption shall not exceed the application period of the temporary anti-dumping measure.

2. For cases of exemption from anti-dumping measures according to point b, Clause 1, Article 16 of this Circular, the Investigating Authority shall consider the duration of the exemption not exceeding 18 months from the date the decision to apply the anti-dumping measure becomes effective until December 31 of the same year or until December 31 of the following year.

3. For cases of exemption from anti-dumping measures according to point c, Clause 1, Article 16 of this Circular, the Investigating Authority shall consider the duration of the exemption not exceeding 18 months from January 1 of the year receiving the exemption request file or from the date the Exemption Decision is issued.

4. For additional exemption request files received by the Investigating Authority according to Clause 4, Article 16 of this Circular, the additional exemption period shall be calculated based on the effectiveness of the initial exemption decision.

Article 12. 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 13. Criteria for Considering and Forms of Exemption from Anti-Dumping Measures

1. The Minister of Industry and Trade shall consider and decide on exemptions for goods eligible for exemption from anti-dumping measures as stipulated in Article 10 of this Circular based on the Investigating Authority's report on the examination of the exemption request file. The process of examining the exemption request file is established and publicly announced by the Investigating Authority.

2. In each specific case, the examination of goods proposed for exemption from anti-dumping measures within the scope defined in Article 10 of this Circular is based on one or more criteria as follows:

a) Regulations on the list of goods not produced domestically, investigation conclusions, technical standards, opinions of relevant agencies, organizations, business associations, industries, and related technical documents;

b) Composition; physical properties; chemical properties; technical standards; purpose of use;

c) Domestic production capacity of similar or directly competing goods compared to the goods proposed for exemption consideration;

d) Substitutability of similar or directly competing goods produced domestically with the goods proposed for exemption consideration.

3. In each specific case, the examination of exemption from anti-dumping measures is carried out in one of the following forms:

a) No limitation on the subjects of use, purpose of use, quantity, or number of exempted goods where differences between the goods proposed for exemption and the goods subject to anti-dumping measures can be distinguished;

b) Limitation on the quantity or number of exempted goods, purpose of exemption.

4. The Ministry of Industry and Trade shall consider not granting an exemption from anti-dumping measures if the application of the exemption could lead to fraudulent behavior to avoid being subject to anti-dumping measures.

Section 2

ACCEPTANCE AND HANDLING OF EXEMPTION REQUEST FILES

Article 14. Documents for Requesting Exemption from Anti-Dumping Measures

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

a) An application form for exemption from anti-dumping measures according to the model attached as Appendix III to this Circular;

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

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

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

đ) Production process of products using the imported goods requested for exemption as input materials;

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

g) Consumption quota according to the law or planned usage rate of raw materials being the imported goods requested for exemption;

h) Documents, materials, or samples proving the difference between the goods requested for exemption and similar goods or directly competing domestic-produced goods;

i) Information about the production base, production line, and production volume of the goods requested for exemption for the last three years and the current year;

k) Materials proving the demand for the quantity of goods requested for exemption, including: contracts signed with customers, approval of ongoing projects, or other related documents;

2. In cases where organizations or individuals submit additional exemption application dossiers to the Investigating Authority as stipulated in Clause 4, Article 16 of this Circular, the additional exemption application dossier shall include the following documents:

a) An application form for exemption (additional) from anti-dumping measures according to the model issued in Appendix III attached to this Circular;

b) A copy of the customs clearance document for the exempted imported goods;

c) Stock report on the exempted product;

d) Report on the production situation of goods using the exempted goods as input materials;

đ) Production plan for the subsequent period, contracts already signed and to be implemented, or other necessary information and documents;

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

Article 15. Submission and Monitoring of Exemption Application Dossier

1. The acceptance and processing of the exemption application dossier for anti-dumping measures, the additional exemption application dossier, and the declaration dossier for imported goods under investigation for anti-dumping measures shall be conducted online at the Online Public Service Portal in accordance with the provisions of the law;

2. Organizations and individuals are responsible for sending the dossier, documents, and monitoring the status of dossier processing through the registered email address or access account provided to update and modify information as required by the Investigating Authority;

3. In cases where organizations or individuals submit sample products along with the exemption application dossier, the sample shall be submitted directly to the Investigating Authority or sent via postal service.

Article 16. Notification of Acceptance of Exemption Application

1. The investigating agency shall notify the acceptance of the exemption application in the following cases:

a) After the Ministry of Industry and Trade issues a decision to apply provisional trade remedy measures;

b) After the Ministry of Industry and Trade issues a decision to apply final trade remedy measures;

c) In March and September each year.

2. In case there is a change in the trade remedy measure, the investigating agency shall promptly notify organizations and individuals applying for exemption so that they can plan their business accordingly.

3. Within thirty days from the date the investigating agency notifies the acceptance of the exemption application, the organization or individual applying for exemption must submit the exemption application dossier as stipulated in Article 14 of this Circular to the investigating agency, except in cases provided for in Clause 4 of this Article or other cases decided by the Ministry of Industry and Trade.

4. In case an organization or individual granted exemption requests additional exemption, they must follow the procedure to submit the additional exemption application dossier to the investigating agency.

          5. Within fifteen working days from the date of receiving the request for additional information from the investigating agency, the individual or organization applying for exemption has the responsibility to provide fully and accurately the contents requested for supplementation.

Article 17. Content of the Decision on Exemption of Trade Remedy 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 18. Customs Procedures and Customs Inspection for Exempted Goods

1. Exempted goods must go through customs procedures and be subject to inspection and supervision by the customs authority in accordance with the provisions of the customs law.

2. When going through customs procedures, in addition to the customs declaration dossier as prescribed, the importing organization or individual must submit a copy of the exemption decision to the customs authority.

3. The customs authority shall manage and monitor the quantity of imported/exported goods based on the quantity of goods exempted under the exemption decision. The monitoring of the import/export quantity will be carried out according to the provisions of the customs law.

Article 19. Refund of Anti-Dumping Duty for Exempted Goods

1. In the case where imported goods are exempted from the application of trade remedy measures, the organization or individual is entitled to a refund of the anti-dumping duty paid for those import shipments declared in the customs declaration within the duration of the exemption decision.

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

          Article 20. Periodic Reporting

Every six months during the exemption period, the organization or individual exempted from the application of trade remedy measures must submit a report on the import situation of exempted goods and compliance with the conditions and obligations of the exemption to the investigating agency in the form attached as Appendix IV to this Circular.

Article 21. Processing of Scrap Materials, By-products, Excess Raw Materials, and Consumables

1. Scrap materials, by-products, excess raw materials, and consumables within the limits specified in Point g Clause 1 Article 14 of this Circular are permitted to be sold or consumed domestically without paying anti-dumping tax.

2. Scrap materials, by-products, excess raw materials, and consumables outside the limits specified in Point g Clause 1 Article 14 of this Circular must pay anti-dumping tax when sold or consumed domestically according to current regulations.

Section 3

 INSPECTION, AUDIT AND RECOVERY OF DECISIONS EXEMPTING FROM APPLICATION OF TRADE DEFENSE MEASURES

Article 22. Post-exemption Inspection

1. The post-exemption inspection team is established to conduct inspections within the scope, objects, contents, tasks, and deadlines recorded in the post-exemption inspection decision. The post-exemption inspection team includes the head of the inspection team, members of the inspection team, inspection officials; in necessary cases, it may include the deputy head of the inspection team.
2. The head of the inspection team is the person assigned to carry out specialized inspection tasks who meets the standards prescribed by law on specialized inspection, performs duties and powers according to the law on inspection and specialized inspection; bears responsibility before the law and before the decision maker regarding the implementation of inspection tasks.
3. Specialized inspection officials must meet the standards for specialized inspection officials in commerce as stipulated by law.
4. The procedures and forms of records during post-exemption inspection are carried out according to the laws on inspection and specialized inspection in commerce.

Article 23. KAudit after exemption

1. Post-exemption audit is conducted according to risk management methods prescribed by law to select audit targets, scope, and content for organizations and individuals exempted.

2. Post-exemption audit aims to verify and assess compliance of organizations and individuals with conditions and legal provisions on exemption from trade defense measures in 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) Verifying compliance with conditions and obligations of the entities requesting exemption in the exemption decision;

đ) Verifying and verifying the usage quotas of raw materials, consumption quotas of materials, excess raw materials, and materials for exempted goods;

e) Verifying and verifying the by-product rate of exempted goods.

"d) Within no more than one working day from the date of receiving the dossier submitted for administrative procedures by the specialized agency assigned by the Provincial People's Committee, the Chairman of the Provincial People's Committee shall issue a notification of the result of the inspection of plant-based food exports or a certificate at the request of the importing country."Implementation of post-exemption audit

1. Based on the request of the Investigating Authority, the Minister of Industry and Trade decides on the audit and establishes an audit team. The head of the audit team must be an official of the Investigating Authority. The audit team conducts audits within the scope, time, and content stated in the decision establishing the audit team.

2. The Investigating Authority notifies the plan and decision on post-exemption audit to organizations and individuals exempted in writing according to the law and the regulation on pre-audit before conducting the audit.

3. During the implementation of post-exemption audit, the Investigating Authority has the authority to collect evidence and verify through requesting relevant organizations and individuals or those capable of clarifying issues of concern, inconsistencies, or signs of violation of the law. Evidence collection and verification activities include:

a) Requesting state management agencies, organizations, and individuals with authority and relevance to cooperate in collecting evidence and verification;

b) Verification methods include sending written requests and requesting written responses; or dispatching personnel to work directly with relevant agencies, organizations, and individuals based on an introduction letter from the verifier;

c) Verification results are recorded in working minutes; reply letters; accompanying files, documents, and physical evidence. Verification results serve as grounds for examining the case.

4. Organizations and individuals subject to audit have the responsibility to appoint authorized representatives and relevant staff to provide files, documents, and evidence as required and directly work on audit contents with the audit team.

Article 25. Inspection Results after exemption

1. Based on the inspection results, the inspection team shall immediately prepare and sign the minutes at the inspection site upon completion of the inspection and report the inspection results to the authority issuing the inspection decision and notify the inspected organization or individual.

2. Based on the inspection results, depending on the level of violation, the inspection team shall recommend the inspection authority to handle the case, revoke the exemption decision, or proceed with the necessary procedures to transfer the file on the violation behavior of the organization or individual to the competent authority as prescribed by law.

3. In cases where the inspection conclusion is issued as provided for in Clause 2 of this Article, the head of the inspection team shall send the draft inspection conclusion to the inspected organization or individual. Within five working days from the date of receipt of the draft inspection conclusion, the inspected organization or individual shall submit their comments (accompanied by a written explanation and supporting documents) if they do not agree with the content of the draft inspection 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 written explanations of the inspected organization or individual or meet with the authorized representative of the inspected organization or individual in cases where there are unresolved issues or further clarification is needed;

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

          Article 26Revocation of Exemption Decision

1. The Minister of Industry and Trade shall revoke the exemption decision already issued in the following cases where the organization or individual carries out any of the following actions:

a) The organization or individual fails to comply with the provisions in the exemption decision;

b) The organization or individual provides inaccurate, incomplete, or false information or falsifies data, files, and certificates related to the production and business activities of exempted products;

c) Failure to fulfill the obligation to submit periodic reports as stipulated in Article 20 of this Circular.

2. The Ministry of Industry and Trade shall cooperate with the Customs Authority to handle organizations or individuals whose exemption decisions have been revoked, demanding them to pay back taxes according to the law.

          Chapter IV

IMPLEMENTING PROVISIONS

          Article 27. Effective date

  1. This Circular replaces Circular No. 06/2018/TT-BCT dated April 20, 2018, issued by the Minister of Industry and Trade, and takes effect from January 15, 2020.

  2. During the implementation of this Circular, if there are any difficulties, relevant agencies, organizations, and individuals shall promptly reflect these issues to the Investigation Agency and the Ministry of Industry and Trade for consideration and resolution.

         Article 28. Clause Transfer

Cases of anti-dumping and countervailing duty investigations and exemption applications received before the effective date of this Circular shall be considered and resolved according to the provisions of Circular No. 06/2018/TT-BCT dated April 20, 2018.