Decree no. 90/2005/ND-CP of July 11, 2005 detailing the implementation of a number of articles of the ordinance on anti-dumping of imports into Vietnam

THE GOVERNMENT
——-

SOCIALIST REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
———-

No. 90/2005/ND-CP

Hanoi, July 11, 2005

DECREE
DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE ORDINANCE ON ANTI-DUMPING OF IMPORTS INTO VIETNAM

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to Ordinance No. 20/2004/PL-UBTVQH11 of April 29, 2004, on anti-dumping of imports into Vietnam;
At the proposal of the Minister of Trade,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Regulation scope

This Decree details the implementation of a number of articles of the Ordinance on Anti-Dumping of Imports into Vietnam (hereinafter referred to as Anti-Dumping Ordinance) regarding the anti-dumping investigation agency and the council for handling of anti-dumping cases; the procedures and contents of investigation as well as the application of measures against dumping of imports into Vietnam.

Article 2.- Language and script used in the course of handling anti-dumping cases

1. The language and script used in the course of handling anti-dumping cases is Vietnamese. Parties involved in the investigation process stipulated in Article 11 of the Anti-Dumping Ordinance (hereinafter referred to as involved parties) have the right to use their own ethnic languages and scripts but in such cases interpreters are required.

2. Information and documents in languages other than Vietnamese supplied by the involved parties must be translated into Vietnamese. The involved parties must ensure the truthfulness and accuracy of translations and take responsibility before law for their contents.

Article 3.- Evidence

Evidence in the course of handling anti-dumping cases means things which truly exist and are used by the anti-dumping investigation agency or the council for handling of anti-dumping cases as a basis for determination of the dumping of imports into Vietnam, the material injury or threat to cause material injury to a domestic manufacturing industry, the relationship between the dumping of imports into Vietnam and the material injury or threat to cause material injury to a domestic manufacturing industry as well as other circumstances necessary for the proper handling of anti-dumping cases.

Article 4.- Determination of major proportion in the total of the volumes, quantities or values of the like goods made at home

If a volume, quantity or value of a goods accounts for 50 or more of the total volumes, quantities or values of the like home-made goods, such goods shall be considered representing a major proportion in the total volumes, quantities or values of the like home-made goods.

Article 5.- Determination of the direct association between producers of the like home-made goods and organizations or individuals importing and/or exporting goods requested to be subject to the application of anti-dumping measures

1. Producers of the like goods shall be considered having a direct association with organizations or individuals importing and/or exporting goods requested to be subject to the application of anti-dumping measures in the following cases:

a/ One party directly or indirectly controls the other party;

b/ Both parties are directly or indirectly controlled by a third party;

c/ Both parties directly or indirectly control a third party.

2. One party shall be considered controlling another party when it has the right to control financial policies and operations of the latter in order to gain economic benefits from the latter’s business activities.

Chapter II

ANTI-DUMPING AGENCIES, PERSONS HANDLING ANTI-DUMPING CASES, PERSONS INVOLVED IN THE HANDLING OF ANTI-DUMPING CASES

Section 1. ANTI-DUMPING AGENCIES, PERSONS HANDLING ANTI-DUMPING CASES

Article 6.- Anti-dumping agencies, persons handling anti-dumping cases

1. Anti-dumping agencies under the Trade Ministry include the anti-dumping investigation agency (hereinafter referred to as the Investigation Agency) and the council for handling of anti-dumping cases (hereinafter referred to as the Handling Council).

2. Persons handling anti-dumping cases include:

a/ Head of the Investigation Agency;

b/ Investigators of anti-dumping cases (hereinafter referred to as investigators)

c/ Members of the Handling Council.

Article 7.- Tasks and powers of the Investigation Agency

When handling anti-dumping cases, the Investigation Agency has the following tasks and powers:

1. To promulgate forms of dossiers requesting the application of anti-dumping measures and investigation questionnaires.

2. To perform investigation tasks for the application of anti-dumping measures in the order and according to the procedures stipulated in the Anti-Dumping Ordinance and this Decree.

3. To request the involved parties to supply necessary information and documents related to anti-dumping cases.

4. To organize consultations with the involved parties.

5. To announce preliminary conclusions on the contents related to the investigation process.

6. To propose the Trade Minister to consider and decide on the temporary imposition of anti-dumping tax when necessary.

7. To propose the Trade Minister to consider the acceptance or non-acceptance or request adjustment of the contents of commitments voluntarily made by the concerned producers or exporters according to the provisions of Clause 2, Article 21 of the Anti-Dumping Ordinance.

8. To announce final conclusions on the contents related to the investigation process.

9. To review the application of anti-dumping measures under decisions of the Trade Minister;

10. To perform other tasks provided for by law.

Article 8.- Head of the Investigation Agency

1. The head of the Investigation Agency shall be appointed and dismissed by the Trade Minister.

2. The head of the Investigation Agency has the following tasks and powers:

a/ To organize and direct the Investigation Agency to perform its tasks and powers as provided for in Article 7 of this Decree;

b/ To assign investigators to investigate specific anti-dumping cases;

c/ To assign investigators to run consultation meetings;

d/ To supervise investigative activities of investigators;

e/ To decide on the organization of consultation meetings;

f/ To keep secret classified information according to the provisions of Article 30 of this Decree;

g/ To request expertise.

Article 9.- Investigators

1. Criteria for investigators

Persons meeting the following criteria may be appointed investigators:

a/ Having good moral qualities, being honest and objective;

b/ Having a bachelor or higher degree in law, economics or finance;

c/ Having an actual working duration of at least five years in one of the domains defined at Point b of this Clause;

d/ Having been trained and fostered in investigation.

2. Investigators shall be appointed and dismissed by the Trade Minister at the proposal of the head of the Investigation Agency.

Article 10.- Tasks and powers of investigators

When handling anti-dumping cases, investigators shall have the following tasks and powers:

1. To perform investigation tasks assigned by the head of the Investigation Agency.

2. To request the involved parties to supply necessary information and documents related to anti-dumping cases.

3. To keep secret classified information according to the provisions of Article 30 of this Decree.

4. To preserve the supplied documents.

5. To report on investigative activities upon the closure of investigation of anti-dumping cases, make and submit to the head of the Investigation Agency preliminary conclusions and final conclusions related to the investigation process.

Article 11.- Tasks and powers of the Handling Council

The Handling Council has the following tasks and powers:

1. To examine conclusions of the Investigation Agency according to the provisions of Article 39 of this Decree.

2. To discuss and decide by majority whether the import goods are dumped into Vietnam, causing or threatening to cause material injury to domestic manufacturing industries.

3. To propose the Trade Minister to issue decisions on the application of anti-dumping measures on the basis of the provisions of Article 39 of this Decree.

Article 12.- Members of the Handling Council

1. Criteria for members of the Handling Council

The Trade Minister shall decide on and submit a list of members of the Handling Council to the Prime Minister for approval according to the following criteria:

a/ Having good moral qualities, being honest and objective;

b/ Having a bachelor or higher degree in law, economics or finance;

c/ Having an actual working duration of at least nine years in one of the domains specified at Point b of this Clause.

2. Based on the list of the Handling Council members already approved by the Prime Minister, the Trade Minister shall consider and issue decision on the number of the Handling Council members to participate in the handling of anti-dumping cases, appointing one member to chair meetings and sign decisions or proposals mentioned in Clauses 2 and 3, Article 11 of this Decree.

3. A Handling Council member works for a five-year term and may be re-appointed.

Article 13.- Tasks and powers of the Handling Council members

When handling anti-dumping cases, the Handling Council members shall have the following tasks and powers:

1. To study, examine dossiers and conclusions of the Investigation Agency and other documents in the dossiers of anti-dumping cases, transferred by the Investigation Agency.

2. To participate in the Handling Council’s meetings to discuss and vote on whether or not the imports are dumped into Vietnam, causing or threatening to cause material injury to domestic manufacturing industries.

3. To keep secret classified information according to the provisions of Article 30 of this Decree.

Section 2. PERSONS INVOLVED IN THE HANDLING OF ANTI-DUMPING CASES

Article 14.- Persons involved in the handling of anti-dumping cases

Persons involved in the handling of anti-dumping cases include:

1. Organizations and/or individuals lawfully representing domestic manufacturing industries as defined in Clause 1, Article 8 of the Anti-Dumping Ordinance that file dossiers requesting the application of anti-dumping measures with the Investigation Agency (hereinafter referred to as requesters).

2. Foreign organizations or individuals producing and/or exporting goods which are requested to be subject to the application of anti-dumping measures according to the requesters’ dossiers or subject to investigation by the Investigation Agency under decisions of the Trade Minister as stipulated in Clause 2, Article 8 of the Anti-Dumping Ordinance (hereinafter referred to as requested persons).

3. Lawyers of requesters and requested persons.

4. Other involved parties.

Article 15.- Rights and obligations of requesters and requested persons

1. When participating in the course of handling anti-dumping cases, requesters shall have the following rights:

a/ To access information supplied by other involved parties to the Investigation Agency, except for classified information defined in Article 30 of this Decree;

b/ To request the protection of classified information defined in Article 30 of this Decree;

c/ To participate in consultation meetings;

d/ To authorize their lawyers to participate in the handling of anti-dumping cases;

e/ To request the Investigation Agency to organize closed-door consultation meetings according to the provisions of Clause 6, Article 29 of this Decree;

f/ To make complaints or initiate lawsuits against the Trade Minister’s decisions according to the provisions of Article 26 of the Anti-Dumping Ordinance.

2. When participating in the handling of anti-dumping cases, requested persons shall have the following rights:

a/ The rights provided for in Clause 1 if this Article;

b/ To propose the Investigation Agency to extend the time limit for information supply, and/or the time limit for reply to investigation questionnaires according to the provisions of Clause 2, Article 23 of this Decree.

3. Requesters and requested persons shall have the following obligations:

a/ To timely and fully supply truthful and accurate information and documents which are necessary and related to their requests;

b/ To timely and fully supply truthful and accurate information and documents at the request of the Investigation Agency and investigators;

c/ To execute decisions of the Trade Minister.

Article 16.- Lawyers of requesters and requested persons

1. Lawyers who fully meet conditions for participation in legal proceedings at courts under law provisions and are authorized by requesters or requested persons may participate in the course of handling anti-dumping cases in order to protect the legitimate rights and interests of the parties they represent.

2. When participating in the handling of anti-dumping cases, lawyers shall have the following rights and obligations:

a/ To take part in all stages of the handling of anti-dumping cases;

b/ To verify, gather and supply documents in order to protect the legitimate rights and interests of the parties they represent;

c/ To study documents in dossiers of anti-dumping cases;

d/ To record and duplicate necessary documents in dossiers of anti-dumping cases, except for classified information defined in Article 30 of this Decree so as to protect the legitimate rights and interests of the parties they represent;

e/ To assist the parties they represent in legal affairs related to the protection of their legitimate rights and interests;

f/ To respect the truth and law; not to buy off, force or incite others to make false declarations or supply untruthful documents;

g/ Not to disclose secrets of investigation they know when participating in handling anti-dumping cases;

h/ Not to use records or copies of documents in dossiers of anti-dumping cases for the purpose of infringing upon the State’s interests or the legitimate rights and interests of organizations and individuals.

Article 17.- Rights and obligations of other involved parties

When participating in the handling of anti-dumping cases, involved parties other than requesters or requested persons shall have the following rights and obligations:

1. To supply truthful information and necessary documents related to anti-dumping cases from their perspective or at the request of the Investigation Agency or investigators.

2. To request the Investigation Agency and investigators to keep classified information defined in Article 30 of this Decree.

3. To access information on anti-dumping cases provided by the Investigation Agency, except for classified information defined in Article 30 of this Decree.

4. To take part in consultation meetings and present their viewpoints on anti-dumping cases, except for the case stipulated in Clause 6, Article 29 of this Decree.

Chapter III

INVESTIGATION FOR THE APPLICATION OF ANTI-DUMPING MEASURES

Article 18.- Dossiers of request for the application of anti-dumping measures

A dossier of request for the application of anti-dumping measures comprises:

1. A written request for the application of anti-dumping measures, including the following contents:

a/ The name, address and other necessary information of the requester or representative of a domestic manufacturing industry in cases where the Investigation Agency compiles such dossier under decision of the Trade Minister;

b/ Description of the imports requested to be subject to the application of anti-dumping measures, e.g., their appellations, major features and utilities, codes under the current import tariffs and currently applicable import tax rate, and origin;

c/ Description of the volumes, quantities and values of the imports defined at Point b of this Clause within 12 months before the requester submits the dossier or before the Investigation Agency compiles the dossier under decision of the Trade Minister;

d/ Description of the volumes, quantities and values of similar home-made goods within 12 months before the requester submits the dossier or before the Investigation Agency compiles the dossier under decision of the Trade Minister;

e/ Information on the common price and export price of goods described according to the provisions of Point b of this Clause, at the time of their import into Vietnam and within 12 months before the requester submits the dossier or the Investigation Agency compiles the dossier under the Trade Minister’s decision;

f/ The anti-dumping margin of the imports requested to be subject to the application of anti-dumping measures;

g/ Information, data and evidences on material injury to a domestic manufacturing industry, which the imports dumped into Vietnam have caused or threaten to cause;

h/ The names, addresses and other vital information of all the requested persons;

i/ The specific requests on the application of anti-dumping measures, application duration and extent.

2. Other relevant documents and information which are deemed necessary by the requester or the Investigation Agency (in cases where the Investigation Agency compiles the dossier requesting the application of anti-dumping measures).

Article 19.- Appraisal of dossiers of request for the application of anti-dumping measures in cases where requesters exist

1. Within 45 days after receiving complete and valid dossiers stipulated in Article 18 of this Decree, the Investigation Agency shall have to appraise them for submission to the Trade Minister for consideration and issuance of investigation decisions.

2. The appraisal of dossiers covers the following:

a/ Determining the lawful capacity of the dossier-submitting organizations or individuals to represent domestic manufacturing industries according to the provisions of Clause 1, Article 8 of the Anti-Dumping Ordinance.

b/ Determining evidence of material injury caused or threatening to be caused by the dumping of imports into Vietnam to domestic manufacturing industries.

Article 20.- Compilation of dossiers requesting the application of anti-dumping measures in cases where no requesters exist

1. In cases where no requesters exist but there are signs of the dumping of imports into Vietnam, causing or threatening to cause material injury to domestic manufacturing industries, the Trade Minister shall make decision to assign the Investigation Agency to compile a dossier requesting the application of anti-dumping measures and submit it to him/her for consideration and issuance of an investigation decision.

2. The time limit for compilation of the dossier mentioned in Clause 1 of this Article is six months from the date the Trade Minister signs decision assigning the Investigation Agency to compile such dossier.

Article 21.- Contents of investigation decisions

1. An investigation decision has the following contents:

a/ The name, address and other vital information of the requester (if any);

b/ The name, address and other vital information of the representative of a domestic manufacturing industry in cases where no requester exists;

c/ Description of the imports requested to be subject to investigation for the application of anti-dumping measures, including their appellations, major features and utilities, codes under the current import tariffs and currently applicable import tax rate;

d/ The names, addresses and other necessary information of all the requested persons;

e/ The name of the country or territory producing or exporting goods requested to be subject to the application of anti-dumping measures;

f/ The brief information on the dumping of the imports described at Point c of this Clause, causing or threatening to cause material injury to the domestic manufacturing industry;

g/ The effective date when the investigation starts;

h/ The investigation period;

i/ The schedule for handling the anti-dumping case;

j/ Other relevant information which the Trade Minister deems necessary.

2. The notification and announcement of investigation decisions shall comply with the provisions of Clause 5, Article 10 of the Anti-Dumping Ordinance.

Article 22.- Supply of information and documents in the investigation process

1. The involved parties shall have to supply truthful information and necessary documents at the request of the Investigation Agency.

2. In case of necessity, the Investigation Agency shall request expertise or check and verify the truthfulness of information and documents supplied by the involved parties or collect more necessary information and documents for the proper handling of anti-dumping cases.

3. In case of checking and verifying the truthfulness of information and documents or collecting more information from the countries or territories outside Vietnam, the Investigation Agency shall have to abide by the following provisions:

a/ Notifying relevant organizations and/or individuals and competent agencies of such countries or territories of the verification or collection of information;

b/ The verification or collection of information must be consented by the concerned organizations and/or individuals and not objected by competent agencies of the countries or territories mentioned at Point a of this Clause, unless otherwise provided for by treaties to which Vietnam, the concerned countries or territories are parties.

4. Except for classified information defined in Article 30 of this Decree, the Investigation Agency must publicize the results of expertise and verification or collection of information to the involved parties.

5. The Investigation Agency shall base itself on available necessary information and documents to make decisions in the following cases:

a/ The involved parties fail to supply the requested necessary information and documents according to the provisions of Clause 1 of this Article;

b/ The information and documents supplied by the involved parties are untrue as shown by the results of expertise, inspection or verification;

c/ The involved parties do not let the Investigation Agency check and verify information;

d/ The involved parties obstruct the investigation process.

6. In case of rejecting the use of information or documents supplied by the involved parties, the Investigation Agency must explain the reasons for such rejection.

Article 23.- Investigation questionnaire

1. Within 15 days after the issuance of an investigation decision, the Investigation Agency shall have to send the investigation questionnaire to addresses of the following subjects:

a/ The requested persons or their lawful representatives;

b/ The Vietnam-based representatives of the countries or territories producing and/or exporting goods requested to be subject to the application of anti-dumping measures;

c/ The competent agencies of the countries or territories producing and/or exporting goods requested to be subject to the application of anti-dumping measures;

d/ The other involved parties.

2. Within 30 days after receiving the investigation questionnaires, the requested persons must give written replies to all questions in the questionnaire to the Investigation Agency. In case of necessity and if there are written requests from the requested persons, the Investigation Agency shall consider and extend this time limit only once, for not more than 30 days.

3. The investigation questionnaires shall be considered having reached the addresses of recipients after seven working days counting from the date they were sent by the Investigation Agency. The sending date shall be determined according to the postmark.

Article 24.- Contents of investigation for the application of anti-dumping measures

Investigation for the application of measures against dumping of imports into Vietnam shall cover the following contents:

1. Determining imports dumped into Vietnam and the dumping margin under the provisions of Article 25 of this Decree.

2. Determining material injury caused or threatening to be caused to domestic manufacturing industries according to the provisions of Clause 2, Article 12 of the Anti-Dumping Ordinance.

3. The relationship between the dumping of imports into Vietnam and material injury caused or threatening to be caused to domestic manufacturing industries according to the provisions of Article 28 of this Decree.

Article 25.- Determination of dumping margins

1. The Investigation Agency must separately determine the dumping margin for each requested person in an anti-dumping case, except for the case stipulated in Clause 2 of this Article.

2. In cases where the number of requested persons or the scope of the imports requested to be subject to the application of anti-dumping measures is too large, thus making the determination of separate dumping margins impossible, the Investigation Agency may limit the scope of investigation in order to determine separate dumping margins for a number of requested persons or imports requested to be subject to the application of anti-dumping measures.

The limitation of the investigation scope shall comply with the following provisions:

a/ It shall be carried out by selecting suitable statistical samples based on the volume, quantity or value of the imports requested to be subject to the application of anti-dumping measures, which have been produced and/or exported into Vietnam by the requested persons, or information obtained by the Investigation Agency at the time of selecting those samples;

b/ When selecting samples for investigation, the Investigation Agency may hold necessary consultation meetings with the requested persons and importers related to the sampling and must get consent of such requested persons on the selection of samples.

3. A dumping margin shall be determined as the calculable difference between the common prices of goods and prices of such goods when exported to Vietnam.

4. The dumping margin applicable to requested persons not subject to investigation is the weighted average dumping margin applicable to requested persons selected for determination of a separate dumping margin under the provisions of Clause 2 of this Article.

5. The Investigation Agency may consider to determine separate dumping margins for requested persons that are not selected under the provisions of Clause 2 of this Article but have voluntarily supplied necessary and timely information in the investigation process, except when the number of such requested persons is too big and the determination of separate dumping margins for them makes it impossible to finish the investigation on time.

Article 26.- Determination of common prices and export prices

1. The common prices of imports into Vietnam shall be determined according to the provisions of Clauses 2 and 3, Article 3 of the Anti-Dumping Ordinance.

2. In cases where goods are imported into Vietnam through a third country or territory, their common prices shall be determined as the comparable price levels of similar goods in the exporting country or territory.

3. In cases where the goods are simply transhipped via ports of a third country or territory or there exist no comparable price levels for those goods in the third country or territory, their common prices shall be the comparable price levels of the relevant goods in the country or territory of origin.

4. Export prices of the imports into Vietnam shall be calculated equal to the sale prices of those goods offered by foreign producers or exporters to Vietnamese importers, and determined through lawful transaction documents.

5. In cases where exist no export prices or clear grounds to believe that export prices mentioned in Clause 4 of this Article are unreliable, the Investigation Agency shall determine export prices by one of the following methods:

a/ Setting such prices on the basis of the imports’ sale prices offered to the first independent purchaser in Vietnam;

b/ Calculating such prices on the basis of reasonable grounds as decided by the Investigation Agency.

Article 27.- Adjustment of common prices and export prices in determination of dumping margins

In case of necessity, when determining dumping margins, the Investigation Agency may consider and make adjustments as follows:

1. Adjustment of the common prices and export prices to the same stage of the goods circulation process.

2. Adjustment of the common prices and export prices to the same time point of calculation or at the nearest time points of calculation.

3. Adjustment of the common prices and export prices on the basis of differences in tax, sale terms, commercial volumes, volumes, physical characteristics and other factors which the Investigation Agency deem appropriate.

4. The common prices and export prices must be converted into Vietnam dong at the average exchange rate on the inter-bank foreign exchange market, announced by the Vietnam State Bank on the day the Trade Minister signs the investigation decision. In cases where such exchange rate is not announced by the Vietnam State Bank on the day the Trade Minister signs the investigation decision, the conversion shall be based on the exchange rate announced on the next day.

Article 28.- Determination of the relationship between the dumping of imports into Vietnam and material injury caused or threatening to be caused to domestic producing industries

1. When determining the relationship between the dumping of imports into Vietnam and material injury caused or threatening to be caused to a domestic manufacturing industry, the Investigation Agency may comprehensively consider the following factors:

a/ The relationship between the dumping of imports into Vietnam and evidence of material injury caused or threatening to be caused to a domestic manufacturing industry;

b/ The quantities and prices of the like imports which are not dumped into Vietnam;

c/ The decline of the demand for, or change in the manner of consumption of, the like home-made goods;

d/ The export capacity and productivity of the domestic manufacturing industry;

e/ Other factors as decided by the Investigation Agency.

2. When necessary, the Investigation Agency may also consider other factors, apart from the dumping of imports into Vietnam, which cause or threat to cause material injury to a domestic manufacturing industry.

Article 29.- Consultations during investigation

1. Based on the time for organizing a consultation meeting as mentioned in a decision on investigation for the application of anti-dumping measures, the Investigation Agency shall organize a public consultation meeting with the involved parties and assign at least three investigators, including one investigator as chairman, to run the consultation meeting.

2. Within 30 days before the consultation meeting, the involved parties must send written registrations of their participation in the meeting to the Investigation Agency, clearly stating issues to be consulted and their arguments.

3. Consultation order:

a/ The chairman opens the consultation meeting;

b/ The requester(s) and the requested person(s), one after another, personally or through their authorized representatives make oral presentation of the evidence to defend their viewpoints on the anti-dumping case. The time for each party to make presentation shall not exceed 90 minutes;

c/ The requester(s) and the requested person(s) hand over their presentations mentioned at Point b of this Clause to the chairman;

d/ The involved parties other than those stipulated at Point b of this Clause have the right to hand over documents on their perspectives on the anti-dumping case to the chairman;

e/ The chairman and investigators ask questions and listen to answers of the requester(s), the requested person(s) or their lawful representatives. The question- and answer-time for each party must not exceed 60 minutes. The whole contents of questions and answers shall be inscribed in the records of the consultation meeting;

f/ The chairman summarizes the contents of the consultation meeting and closes the meeting.

4. Within seven working days after the consultation meeting, the involved parties have the right to send documents explaining their perspectives on the anti-dumping case to the Investigation Agency.

5. All contents of the consultation meeting, including written presentations of the involved parties and records of the consultation, shall be publicized by the Investigation Agency.

6. When necessary, the Investigation Agency may organize closed-door consultation meetings if so requested by requester(s) or requested person(s). Participants in closed consultation meetings shall be considered and decided by the Investigation Agency, based on the request of the persons requesting such meetings.

Article 30.- Confidentiality of information

1. The Investigation Agency and investigators shall be responsible for confidentiality of the following information supplied by the involved parties:

a/ The national secrets and other secrets as provided for by law;

b/ Information regarded as classified by a supplying party and accepted by the Investigation Agency.

2. When supplying the classified information defined at Point b, Clause 1 of this Article, information suppliers must enclose detailed explanations about the reasons for keeping such information classified and brief contents of the classified information, which may be publicized to the other involved parties.

3. If not accepting the information supplier’s request to keep classified information or the information suppliers disagree with the publication of the information, which they request to keep secret, the Investigation Agency shall not use such information and return it to the suppliers.

Article 31.- Preliminary conclusions

1. Within 90 days after a decision on investigation for the application of anti-dumping measures is issued, the Investigation Agency must announce preliminary conclusions on the contents related to the investigation process under the provisions of Article 12 of the Anti-Dumping Ordinance; in special cases, this time limit may be extended but for not more than 60 days.

2. Preliminary conclusions must be announced publicly by appropriate manners and include the following contents:

a/ The name, address and other necessary information of the requester (if any);

b/ Description of the imports requested to be subject to the application of anti-dumping measures, including their appellations, major features and utilities, codes under the current import tariffs and currently applicable import tax rate, and origin;

c/ The name, address and other necessary information of the requested person;

d/ Description of the volumes, quantities and values of the goods imported into Vietnam under the provisions of Point b of this Clause within 12 months before the requester submits the dossier of request for the application of anti-dumping measures or before the Investigation Agency compiles such dossier under decision of the Trade Minister;

e/ The dumping margin;

f/ The information and evidence proving the dumping of the imports described at Point b of this Clause causes or threatens to cause material injury to a domestic manufacturing industry; or information, evidence proving that the delayed temporary imposition of anti-dumping tax threatens to cause material injury to a domestic manufacturing industry, which is hardly overcome;

g/ The schedule for the handling of the anti-dumping case;

h/ Other information deemed necessary by the Investigation Agency.

3. Seven working days after announcing preliminary conclusions of the investigation, the Investigation Agency must send investigation reports and preliminary investigation conclusions to the Trade Minister and in case of necessity, propose the Trade Minister to issue decisions on the temporary imposition of anti-dumping tax.

Article 32.- Termination of investigation

1. The Trade Minister shall decide to terminate investigation under the provisions of Article 19 of the Anti-Dumping Ordinance.

2. After a decision to terminate the investigation is issued, the Investigation Agency shall, within seven working days, have to notify such decision to the involved parties by an appropriate manner.

Article 33.- Final conclusions

1. Within 30 days after the end of the investigation process, the Investigation Agency must announce final conclusions on the contents related to the investigation process according to the provisions of Article 12 of the Anti-Dumping Ordinance.

2. Final conclusions and their main bases must be announced publicly by appropriate manners and include the following contents:

a/ The name, address and other necessary information of the requester (if any);

b/ Description of the imports requested to be subject to the application of anti-dumping measures, e.g., their appellations, major features and utilities, codes under current import tariffs and currently applicable import tax rate, and origin;

c/ The name, address and other necessary information of the requested person;

d/ Description of the volumes, quantities and values of the goods imported into Vietnam as stipulated at Point b of this Clause within 12 months before the requester submits the dossier of request for the application of anti-dumping measures or before the Investigation Agency compiles such dossier under decision of the Trade Minister;

e/ The dumping margin;

f/ The information and evidence proving that the dumping of the imports described at Point b of this Clause causes or threatens to cause material injury to a domestic manufacturing industry;

g/ The schedule for the handling of the anti-dumping case;

h/ Other information deemed necessary by the Investigation Agency.

3. Within seven working days after announcing final decisions, the Investigation Agency must send the Handling Council the anti-dumping case’s dossier set, which includes the following documents:

a/ The dossier of request for the application of anti-dumping measures;

b/ The investigation report;

c/ The preliminary conclusions;

d/ The final conclusions and their major bases;

e/ The proposals of the Investigation Agency.

Chapter IV

APPLICATION OF ANTI-DUMPING MEASURES

Section 1. APPLICATION OF THE COMMITMENT MEASURE

Article 34.- Sending of written commitments

After preliminary conclusions are made available and within 30 days before the end of the investigation process, lawful representatives of the requested persons may send written commitments on one or all of the contents defined in Clause 1, Article 21 of the Anti-Dumping Ordinance (hereinafter called commitments to elimination of dumping) directly to the Investigation Agency or domestic producers for consideration before submission to the Investigation Agency.

Article 35.- Consideration of commitments to elimination of dumping

1. Within 30 days after receiving written commitments to elimination of dumping, the Investigation Agency shall have to consider and propose the Trade Minister to consider and decide.

2. Commitments to elimination of dumping must be considered on the following basis:

a/ The application of such commitments may help overcome material injury or threat to cause material injury to a domestic manufacturing industry;

b/ The application of such commitments does not entail negative impacts on the implementation of national socio-economic policies.

Article 36.- Decisions on commitments to elimination of dumping

1. Based on the Investigation Agency’s proposal on anti-dumping commitments, the Trade Minister may issue one of the following decisions:

a/ The decision to terminate investigation and accept the commitments of the involved parties;

b/ The written request for the commitment makers to adjust the contents of commitments, which, however, must not force them to make commitments;

c/ The decision not to accept the commitments, clearly stating the reasons therefor.

2. The decisions defined in Clause 1 of this Article must be notified to the involved parties by appropriate modes.

3. In cases where the commitment makers agree to adjust the contents of the commitments defined at Point b, Clause 1 of this Article, they must send new commitments to the Investigation Agency.

Article 37.- Supervision of implementation of commitments to elimination of dumping

1. Commitment makers shall be subject to supervision by the Investigation Agency in the realization of their commitments.

2. Commitment makers must periodically supply the Investigation Agency with information and documents related to the realization of their commitments and prove the accuracy of such information and documents under decision of the Trade Minister.

3. In cases where the commitment makers fail to realize their commitments, causing or threatening to cause material injury to a domestic manufacturing industry, the Investigation Agency must propose the Trade Minister to issue decision on further investigation for the application of anti-dumping measures or decision on the application of anti-dumping measures according to the provisions of Clause 6, Article 21 of the Anti-Dumping Ordinance.

Section 2. IMPOSITION OF ANTI-DUMPING TAX

Article 38.- Temporary imposition of anti-dumping tax

1. Sixty days after the issuance of an investigation decision, based on the preliminary conclusions and proposals of the Investigation Agency, the Trade Minister shall issue decision on the temporary imposition of anti-dumping tax.

2. Decisions on the temporary imposition of anti-dumping tax must comply with the provisions of Clauses 2, 3, 4 and 5, Article 20 of the Anti-Dumping Ordinance.

3. Decisions on the temporary imposition of anti-dumping tax shall be publicly announced, each comprising the following contents:

a/ The name, address and other necessary information of the requester (if any);

b/ Description of the imports subject to the application of anti-dumping measures, e.g., their appellations, major features and utilities, codes under current import tariffs, currently applicable import tax rate, and origin;

c/ The names, addresses and other necessary information of producers and/or exporters of goods subject to the temporary imposition of anti-dumping tax;

d/ The anti-dumping tax rate;

e/ The effective date and duration for the temporary imposition of anti-dumping tax.

Article 39.- Decisions of the Handling Council

1. Based on the dossier sets of anti-dumping cases stipulated in Clause 3, Article 33 of this Decree, within 30 days after receiving such dossier sets, the Handling Council shall have to discuss and decide by majority on the following issues:

a/ Whether the dumping of imports into Vietnam occurs or not;

b/ Whether or not a domestic manufacturing industry suffers material injury or is threaten to suffer material injury;

c/ Whether or not exists a relationship between the dumping of imports into Vietnam and material injury or threat to cause material injury to a domestic manufacturing industry;

2. In cases where the votes for and against the issues mentioned in Clause 1 of this Article are equal, the Handling Council shall make decision based on the meeting chairman’s opinions.

3. In cases where decisions of the Handling Council defined in Clauses 2 and 3 of this Article affirm that imports are dumped into Vietnam, causing or threatening to cause material injury to a domestic manufacturing industry, the Handling Council must propose the Trade Minister to issue decisions on the imposition of anti-dumping tax.

Article 40.- Imposition of anti-dumping tax

1. In case of achieving no commitments as mentioned in Article 21 of the Anti-Dumping Ordinance, based on final conclusions and proposals of the Handling Council stipulated in Clause 3, Article 39 of this Decree, the Trade Minister shall issue decisions on the imposition of anti-dumping tax.

In cases where the imposition of anti-dumping tax damages the national socio-economic interests, the Trade Minister may issue decisions on the non- imposition of such tax.

2. Decisions on the imposition of anti-dumping tax shall be made public, each including the following contents:

a/ The name, address and other necessary information of the requested person (if any);

b/ Description of the imports subject to the application of anti-dumping measures, e.g., their appellations, major features and utilities, codes under current import tariffs and currently applicable import tax rates;

c/ The names, addresses and other necessary information of producers and/or exporters of goods subject to the imposition of anti-dumping tax;

d/ The name of the country or territory that produces or exports goods subject to imposition of anti-dumping tax;

e/ The summary of the investigation results, which show the necessity of the imposition of anti-dumping tax;

f/ The anti-dumping tax rate;

g/ The effective date and duration of imposition of anti-dumping tax;

h/ The to be-refunded tax difference (if any) according to the provisions of Article 41 of this Decree.

Article 41.- Refund of anti-dumping tax difference or amounts to guarantee the payment of provisional anti-dumping tax

The refund of anti-dumping tax difference or amounts to guarantee the payment of anti-dumping tax to payers under the provisions of Clause 3, Article 20 of the Anti-Dumping Ordinance shall be carried out at the agencies and locations where import tax is collected according to the following provisions:

1. To refund the whole tax difference amount in cases where the anti-dumping tax rate stated in the Trade Minister’s decision is lower than the already applied anti-dumping tax rate.

2. To refund the whole anti-dumping tax amount or payment guarantee amounts which have already been paid in cases where the Trade Minister issues decision on non-imposition of anti-dumping tax.

3. Tax differences shall be refunded according to the provisions of Clauses 2 and 3 of this Article and interest free.

Article 42.- Determination of separate dumping margins for producers and exporters that do not export goods being subject to anti-dumping tax in the investigation stage

1. For goods subject to anti-dumping tax, if there’s a written request, the Investigation Agency must quickly determine separate dumping margins for producers or exporters that do not export those goods into Vietnam in the investigation stage, provided that such producers or exporters can prove that they have no relationship with producers and/or exporters being subject to the imposition of anti-dumping tax or that they are implementing anti-dumping commitments under the provisions of Section 1 of this Chapter.

2. The separate anti-dumping tax stipulated in Clause 1 of this Article shall have retrospective effect as from the time the Investigation Agency receives a request for determination of separate anti-dumping margins.

3. In cases where a separate anti-dumping tax rate is lower than the anti-dumping tax rate of the collected tax amount, the whole difference amount shall be refunded to the agencies and places where import tax has been paid in accordance with the provisions of law. Such difference amount shall be interest free.

Chapter V

IMPLEMENTATION PROVISIONS

Article 43.- This Decree takes effect 15 days after its publication in “CONG BAO.”

Article 44.- Implementation responsibilities

1. The Trade Minister shall take responsibility for organizing the implementation of this Decree.

2. The Finance Ministry shall guide the procedures for collection and remittance into the State budget of anti-dumping tax on imports into Vietnam; procedures for refund of anti-dumping tax differences or amounts to guarantee the payment of anti-dumping tax.

3. The ministers, the heads of ministerial-level agencies, the heads of Government-attached agencies and the presidents of People’s Committees of provinces or centrally-run cities shall have to implement this Decree.

 

 

GOVERMENT

Phan Van Khai

 

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