Countervailing Regulation of The People's Republic of China
Decree [2001] No.329 of the State Council
The Countervailing Regulation of the People''s Republic of China, which was adopted at the 46th executive meeting of the State Council on October 31, 2001, is hereby promulgated, and shall enter into force on January 1, 2002.
Premier of the State Council: Zhu Rongji
November 26, 2001
Countervailing Regulation of the People''s Republic of China
Chapter I General Provisions
Article 1 The present Regulation has been enacted in accordance with the relevant provisions in the Foreign Trade Law of the People''s Republic of China with a view to maintaining foreign trade order and fair competition.
Article 2 In case that imported products are subsidized and cause material damage or constitute a threat of material damage to an already established domestic industry, or cause a material impediment to the establishment of a domestic industry, an investigation shall be conducted and countervailing measures shall be taken in accordance with the present Regulation.
Chapter II Subsidy and Damage
Article 3 The term "subsidy" shall refer to the financial contribution or any form of income or price support which is conferred by the government or any public body of the exporting country (region) and which brings a benefit to the receiver.
The government or any public body of the exporting country (region) is hereinafter uniformly referred to as the government of the exporting country (region).
The term "financial contribution" as mentioned in Paragraph 1 of thisArticle shall include the following:
(1) direct provision by the government of the exporting country (region) of funds in the forms of allocations of money, loans, capital contribution, etc., or potential direct transfer by such government of funds or debts in the forms of loan guarantees, etc.;
(2) waiver of or failure to collect by the government of the exporting country (region) the income receivable;
(3) provision by the government of the exporting country (region) of goods or services other than general infrastructure, or purchase by the government of the exporting country (region) of goods;
(4) payments made by the government of the exporting country (region) to a funding mechanism, or carryout of the above said functions by entrusting or directing a private body.
Article 4 The subsidy against which the investigation is conducted and the countervailing measures taken in accordance with the present Regulation must have the characteristic of special orientation.
Subsidies under any of the following circumstances shall be deemed to have the characteristic of special orientation:
(1) subsidies obtained by some enterprises or industries which are clearly determined by the government of the exporting country (region);
(2) subsidies obtained by some enterprises or industries which are clearly provided in the laws or regulations of the exporting country (region);
(3) subsidies obtained by the enterprises or industries within some specified areas;
(4) subsidies obtained on the condition of export achievements, including all items of subsidies enumerated in the illustrative list of export subsidies attached in the present Regulation;
(5) subsidies obtained on the condition that the products of a country (region) are used to substitute those imported to this country (region).
When the characteristic of special orientation of the subsidy is determined, such factors as the number of enterprises subsidized, the amount, proportion, duration and means, etc. of the subsidy granted to the enterprises shall also be considered.
Article 5 The Ministry of Foreign Trade and Economic Cooperation (hereinafter referred to as the MOFTEC) shall be responsible for the investigation on and determination of subsidy.
Article 6 The amount of subsidy for imported products shall be calculated in the following methods with different circumstances being distinguished:
(1) where the subsidy is granted in the form of gratuitous allocation of money, the amount of subsidy shall be calculated on the basis of the amount actually received by the enterprises;
(2) where the subsidy is granted in the form of a loan, the amount of subsidy shall be calculated on the basis of the difference between the interest to be paid by the enterprise receiving the loan under the condition of normal commercial loan and the interest of the said loan;
(3) where the subsidy is granted in the form of a loan guarantee, the amount of subsidy shall be calculated on the basis of the difference between the interest to be paid by the enterprise if not being guaranteed and that to be paid by the enterprise if being guaranteed;
(4) where the subsidy is granted in the form of a contributed capital, the amount of subsidy shall be calculated on the basis of the capital amount actually received by the enterprise;
(5) where the subsidy is granted in the form of provision of goods or services, the amount of subsidy shall be calculated on the basis of the difference between the normal market price of the goods or services and the price actually paid by the enterprise;
(6) where the subsidy is granted in the form of purchasing goods, the amount of subsidy shall be calculated on the basis of the difference between the price actually paid by the government and the normal market price of the goods;
(7) where the subsidy is granted in the form of waiver of or failure to collect the income receivable, the amount of subsidy shall be calculated on the basis of the difference between the amount to be paid in accordance with the law and that actually paid by the enterprise.
For the subsidies other than those enumerated in the preceding paragraph, the amount of subsidy shall be determined in a fair and reasonable method.
Article 7 The term "damage" shall refer to the fact that subsidy has caused material damage or constitute a threat of material damage to an already established domestic industry or has caused a material impediment to the establishment of a domestic industry.
The State Economic and Trade Commission (hereinafter referred to as the SETC) shall be responsible for the investigation on and determination of damage; while the countervailing investigation on the damage to a domestic industry involving agricultural products shall be conducted by the SETC in collaboration with the Ministry of Agriculture.
Article 8 When determining the damage caused to a domestic industry by subsidy, the following items shall be examined:
(1) the impact of the subsidy which may be caused to the trade;
(2) the quantity of the subsidized imports, inclusive of the absolute quantity of the subsidized imports or the massive or non-massive increase of the quantity as compared with the manufacture or consumption of the domestic products of the same category, or the possibility of the massive increase of the subsidized imports;
(3) the price of the subsidized imports, inclusive of the price cuts of the subsidized imports or the impacts such as great restraint or reduction, etc. to the price of the domestic products of the same category;
(4) the impacts of the subsidized imports upon the relevant economic factors and targets of the domestic industry;
(5) the manufacturing capacity, export capability of the exporting country (region) and the country (region) of origin on the subsidized imports as well as the inventory of the products under investigation;
(6) other factors which cause damage to the domestic industry.
The threat of material damage shall be determined on the basis of the facts instead of only one of the accusation, presumption and minor possibility.The damage caused by subsidy to a domestic industry shall be determined on the basis of affirmative evidence, and no factor other subsidy which causes damage shall be attributed to subsidy.
Article 9 Where the subsidized imports come from two or more countries (regions), and meanwhile meet the following conditions, a cumulative evaluation may be conducted upon the impacts caused by the subsidized imports to a domestic industry:
(1) the amount of subsidy to the imported goods from each country (region) shall not be a minimal subsidy, and the volume of imported products may not be negligible;
(2) it is proper to conduct a cumulative evaluation on the basis of the competition conditions between the subsidized imports as well as between the subsidized imports and the domestic products of the same category.
The term "minimal subsidy" shall refer to a subsidy with its amount to be less than 1% of the value of the products; however, a minimal subsidy of the subsidized imports from a developing country (region) shall refer to the subsidy with its amount to be less than 2% of the value of the products.
Article 10 The evaluated impacts on the subsidized imports shall be separately determined with regard to the manufacture of the domestic products of the same category; where they may not be separately determined with regard to the manufacture of the domestic products of the same category, the manufacture of the narrowest product group or scope which includes the products of the same category shall be examined.
Article 11 The term "domestic industry" shall refer to all the manufacturers within the People''s Republic of China of the domestic products of the same category or the manufacturers within the People''s Republic of China whose total output accounts for the large part of the aggregate output of the domestic products of the same category, except for any of those domestic manufacturers who is associated with an export operator or import operator, or he himself is an import operator of the subsidized products or products of the same category.
Where, under particular circumstances, the domestic manufacturers in a regional market sell the whole or nearly the whole of the products of the same category in the said market, and the products of the same category in the said market are not mainly supplied by the domestic manufacturers of other places, they may be regarded as a separate industry.
Article 12 The term "products of the same category" shall refer to the products identical to the subsidized imports; where there are no identical products, the products which are most similar to the features of the subsidized imports shall be the products of the same category.
Chapter III Countervailing Investigations
Article 13 A domestic industry or a natural person, legal person or relevant organization representing a domestic industry (hereinafter uniformly referred to as the applicant) may file a written application to the MOFTEC in accordance with the present Regulation for countervailing investigation.
Article 14 The application letter shall contain the following contents:
(1) name, address and relevant information of the applicant;
(2) an entire statement on the imported products under application for investigation, including product name, involved exporting country (region) or country (region) of origin, the known export operator or manufacturer, etc.;
(3) a statement on the quantity and value of the domestic products of the same category;
(4) the impacts of the quantity and price of the imported products under application for investigation to the domestic industry;
(5) other contents which the applicant considers it necessary to state.
Article 15 The application letter shall be attached with the following evidence:
(1) the existence of subsidy of the imported products under application for investigation;
(2) the damage to domestic industry;
(3) the causal link between the subsidy and damage.
Article 16 The MOFTEC shall, within 60 days after receiving the application letter and the relevant evidence submitted by the applicant, examine whether the application is filed by or on behalf of the domestic industry, the contents of the application letter and the evidence attached to it, etc., and shall, upon consultation with the SETC, decide to initiate an investigation or not. The examination period may be properly extended under particular circumstances.
The MOFTEC shall, before deciding to initiate an investigation, send out an invitation to the government of the country (region) from which the products under possible investigation come to negotiate about the matter of subsidy.
Article 17 Where, among the manufacturers in a domestic industry who support or dissent from the application, the output of the supporters accounts for 50% or more of the total output of the supporters and dissenters, it shall be deemed that the application is filed by or on behalf of the domestic industry, and the countervailing investigation may be initiated; however, if the output of the domestic manufacturers who support the application is less than 25% of the total output of the domestic products of the same category, the countervailing investigation shall not be initiated.
Article 18 Where, under particular circumstances, the MOFTEC does not receive a written application for countervailing investigation, but has sufficient evidence to consider there exist a subsidy and damage and there is a causal link between the subsidy and damage, it may, upon consultation with the SETC, decide to initiate an investigation.
The MOFTEC or the SETC is hereinafter uniformly referred to as the investigation organ.
Article 19 The decisions on initiating an investigation shall be announced by the MOFTEC, and shall be notified to the applicant, the known export operators, import operators and other interested organizations or individuals (hereinafter uniformly referred to as the interested parties) as well as the government of the exporting country (region).
Once the decision on initiating an investigation is announced, the MOFTEC shall provide the known export operators and the government of the exporting country (region) with the text of the application letter.
Article 20 The investigation organ may know information from the interested parties and conduct the investigation by means of issuing questionnaires, taking samplings, holding hearings and conducting on-spot checks, etc..
The investigation organ shall offer the relevant interested parties and the government of the interested country (region) with opportunities for stating their viewpoints and grounds of argument.
The MOFTEC may, when considering it necessary, send functionaries to the relevant country (region) for conducting the investigation, except where the relevant country (region) concerned objects to the investigation.
Article 21 When the investigation organ is conducting an investigation, the interested parties and the government of the interested country (region) shall tell the truth and provide relevant materials. Where the interested parties or the government of the interested country (region) fails to tell the truth or to provide relevant materials, or fails to provide necessary information within a reasonable time limit, or seriously hampers the investigation in other forms, the investigation organ may make an adjudication on the basis of the already obtained facts and the obtainable best information.
Article 22 Where the interested parties or the government of the interested country (region) considers that the divulgence of the materials provided by them will cause seriously bad effects, it may apply to the investigation organ for treating the materials as confidential materials.
Where the investigation organ considers the application for confidentiality is justifiable, it shall treat the materials provided by the interested parties or the government of the interested country (region) as confidential materials, and meanwhile require the interested parties or the government of the interested country (region) to provide a copy of non-confidential outline of the materials.
The materials treated as confidential materials shall not be divulged without the consent of the interested parties or the government of the interested country (region) who provides them.
Article 23 The investigation organ shall permit the applicant, the interested parties and the government of the interested country (region) to have access to the relevant materials of the case, except where the materials are treated as confidential ones.
Article 24 During the period of the countervailing investigation, reasonable opportunities shall be given to the government of the country (region) from where the products under investigation come for negotiations. The consultation shall not hamper the investigation organ from conducting the investigation or taking countervailing measures in accordance with the present Regulation.
Article 25 The MOFTEC and the SETC shall, upon the investigation result, make separate initial awards on subsidy and damage as well as on whether the causal link between the subsidy and damage is tenable, with the awards to be announced by the MOFTEC.
Article 26 Where the initial awards affirm the subsidy and damage as well as the causal link between the subsidy and damage, the MOFTEC and the SETC shall continue the investigation on the subsidy, the amount of subsidy, the damage and its extent, and shall make separate final awards upon the investigation result, which shall be announced by the MOFTEC.
Before the final awards are made, the MOFTEC shall notify all the known interested parties and the government of the interested country (region) of the basic facts upon which the final awards are made.
Article 27 An countervailing investigation shall be ended within 12 months as of the date of announcement of the decisions on initiating the investigation; under particular circumstances, the time limit may be extended, provided that the extension shall not exceed 6 months.
Article 28 Under any of the following circumstances, the countervailing investigation shall be terminated and be announced by the MOFTEC:
(1) the applicant revokes the application;
(2) there is not enough evidence to prove the existence of subsidy, damage or the causal link between the subsidy and damage;
(3) the amount of subsidy is minimal;
(4) the actual or potential import volume of the subsidized imports or the damage is negligible;
(5) the countervailing investigation does not need to be continued after an agreement has been reached upon the negotiations with the government of the relevant country (region);
(6) the MOFTEC and the SETC both consider it is not appropriate to continue the countervailing investigation.
Where the investigated products from one or more countries (regions) are under any of the circumstances enumerated in Items (2), (3), (4) and (5) of the preceding paragraph, the countervailing investigation with regard to the involved products shall be terminated.
Chapter IV Countervailing Measures
Section 1 Provisional Measures
Article 29 Where the initial awards establish the subsidy and the consequent damage to a domestic industry, provisional countervailing measures may be taken.
Provisional countervailing measures may be taken in the form of levying provisional countervailing duty under the guarantee of cash deposits or guarantee letter.
Article 30 The adoption of provisional countervailing measures shall be proposed by the MOFTEC and be decided on by the Tariff Policy Committee under the State Council upon the proposition of the MOFTEC, and shall be announced by the MOFTEC. The customs shall execute such measures as of the date provided in the announcement.
Article 31 The time limit for the provisional countervailing measures shall not exceed 4 months as of the date of entry into force of the announcement of the decisions on provisional countervailing measures.
No provisional countervailing measure may be taken within 60 days as of the date when the decision on initiating a countervailing investigation is announced.
Section 2 Commitments
Article 32 Where, during the period of countervailing investigation, the government of the exporting country (region) proposes commitments on cancellation or limitation of subsidy or other relevant measures, or the export operators propose commitments on changing the price, the MOFTEC shall give sufficient consideration.
The MOFTEC may propose suggestions on pricing commitments to the export operators or the government of the exporting country (region).
The investigation organ may not force the export operators to make commitments.
Article 33 The refusal of the export operators or the government of the exporting country (region) to make pricing commitments or to accept the suggestions on pricing commitments shall not hamper the investigation on and determination of the countervailing cases. Where the export operators continue subsidizing the imported products, the investigation organ shall have the right to determine that the threat of damage is more likely to arise.
Article 34 Where the MOFTEC considers the commitments are acceptable, it may, upon consultation with the SETC, decide to suspend or terminate the countervailing investigations, instead of taking any provisional countervailing measure or levying countervailing duty. The decisions on suspending or terminating the countervailing investigation shall be announced by the MOFTEC.
Where the MOFTEC does not accept the commitments, it shall state the reason to the relevant export operators.
The investigation organ shall not, before making an affirmative initial award on subsidy and damage caused therefrom, seek or accept commitments. In case that an export operator has made commitments, the investigation organ shall not seek or accept commitments without the consent of the government of the country (region) where the export operator comes from.
Article 35 After suspending or terminating the investigation in accordance with Paragraph 1 ofArticle 34 of the present Regulation, the investigation organ may, upon the request of the government of the exporting country (region) or when considering it necessary, continue investigating the subsidy and damage.
Upon the investigation result in the preceding paragraph, if a negative adjudication on subsidy or damage is made, the commitments shall automatically become invalid; while if an affirmative adjudication on subsidy or damage is made, the commitments shall continue to be valid.
Article 36 The MOFTEC may require the export operators or the government of the exporting country (region), whose commitments have been accepted, to regularly provide the relevant information and materials for implementing the commitments, and may verify such information and materials.
Article 37 With respect to the violation of commitments, the MOFTEC may, upon consultation with the SETC, immediately decide to resume the countervailing investigation in accordance with the present Regulation; and may, upon the best information available, decide to take the provisional countervailing measures, as well as to retrospectively levy the countervailing duty on the products imported within 90 days before the provisional countervailing measures were taken, except where the products were imported before the commitments are violated.
Section 3 Countervailing Duty
Article 38 Where the efforts complete negotiation come to no effect, the final awards affirm the subsidy and the consequent damage caused to the domestic industry, countervailing duties may be levied.
Article 39 The levy of a countervailing duty shall be proposed by the MOFTEC and be decided on by the Tariff Policy Committee under the State Council upon the proposition of the MOFTEC, and shall be announced by the MOFTEC. The customs shall execute such levy as of the date provided in the announcement.
Article 40 The countervailing duty shall be applicable to the products imported after the final awards have been announced, except for those circumstances provided inArticle s 37, 44 and 45 of the present Regulation.
Article 41 The taxpayers of the countervailing duty shall be the import operators of the subsidized imports.
Article 42 The countervailing duty shall be separately determined on the basis of the amount of subsidy of different export operators. Where the countervailing duty needs to be levied upon the subsidized imports of the export operators, which are not actually investigated, the applicable countervailing duty shall be determined in a reasonable method.
Article 43 The amount of countervailing duty shall not exceed the amount of subsidies determined in the final awards.
Article 44 Where the final awards determine the existence of the material damage, and prior to which a provisional countervailing measure has been taken, the countervailing duty may be levied retrospectively to the period of the provisional countervailing measure.
Where the final awards affirm the existence of the threat of material damage, and a provisional countervailing measure has been taken under the circumstance that an award of material damage will be made if no provisional countervailing measure has been taken in advance, the countervailing duty may be levied retrospectively to the period of the provisional countervailing measure.
Where the countervailing duty determined in the final awards is higher than the cash caution money or the amount guaranteed in the guarantee letter, the difference shall not be collected; where it is lower than the cash deposits or the amount guaranteed in the guarantee letter, the difference shall be refunded.
Article 45 Where the following three circumstances coexist, the countervailing duty may be retrospectively levied upon the products imported within 90 days before the provisional countervailing measures were taken:
(1) The subsidized imports increase in a large quantity in a short time;
(2) Such increase has caused irremediable damages to the domestic industry;
(3) Such imports benefit from the subsidy.
Article 46 Where it is decided in the final awards not to levy the countervailing duty, or it is not decided yet in the final awards to retrospectively levy the countervailing duty, the cash caution money collected during the period of the provisional countervailing measure shall be refunded, and the guarantee letter or other forms of guarantee shall be cancelled.
Chapter V Time Limit for and Re-examination of Countervailing Duty and Commitments
Article 47 Neither the time limit for levying the countervailing duty nor that for implementing the commitments shall exceed 5 years; however, where it is re-examined and determined that the termination of the levy of the countervailing duty is likely to lead to the continuance or re-occurrence of the subsidy or damage, the time limit for levying the countervailing duty may be properly extended.
Article 48 After the countervailing duty has taken effect, the MOFTEC may, with a justifiable reason and upon consultation with the SETC, decide to re-examine the necessity of continuing the levy of countervailing duty; it may also, after a reasonable period of time, upon the request of the interested parties and after having examined the corresponding evidence provided by the interested parties, decide to re-examine the necessity of continuing the levy of countervailing duty.
After the commitments have taken effect, the MOFTEC may, with a justifiable reason, decide to re-examine the necessity of continuing the implementation of the commitments; it may also, after a reasonable period of time, upon the request of the interested parties and after having examined the corresponding evidence provided by the interested parties, decide to re-examine the necessity of continuing the implementation of the commitments.
Article 49 The reservation, amendment or cancellation of the countervailing duty shall be proposed by the MOFTEC upon the re-examination result and in accordance with the present Regulation, shall be decided on by the Tariff Policy Committee under the State Council upon the proposition of the MOFTEC, and shall be announced by the MOFTEC. The MOFTEC may also, in accordance with the present Regulation and upon consultation with the SETC, decide to reserve, amend or cancel the pricing commitments and shall announce such decision.
Article 50 The re-examination procedures shall be followed with reference to the relevant provisions in the present Regulation on countervailing investigations.
The time limit for re-examination shall not exceed 12 months, commencing from the date when the re-examination is decided on.
Article 51 The re-examination procedures shall not hamper the countervailing measures during the period of re-examination.
Chapter VI Supplementary Provisions
Article 52 Where anyone refuses to accept the final awards made in accordance withArticle 26 of the present Regulation, or refuses to accept the decision made in accordance with Chapter IV of the present Regulation on whether to levy countervailing duty and the decision on the retrospective levy, or refuses to accept the re-examination decision made in accordance with Chapter V of the present Regulation, he may apply for administrative reconsideration in accordance with the law, or bring a lawsuit to the people''s court.
Article 53 An announcement made in accordance with the present Regulation shall state such contents as important information, facts, reasons, basis, result and conclusion, etc..
Article 54 The MOFTEC and the SETC may take appropriate measures to prevent the acts of evading countervailing measures.
Article 55 Where any country (region) takes discriminative countervailing measures on the products exported from the People''s Republic of China, the People''s Republic of China may, upon the actual circumstances, take corresponding measures against the country (region).
Article 56 The MOFTEC shall be responsible for negotiating with foreign parties about countervailing issues as well as notification and dispute settlement of such matters.
Article 57 The MOFTEC and the SETC may enact the relevant specific implementing measures in accordance with the present Regulation.
Article 58 The present Regulation shall enter into force on January 1, 2002. The provisions on countervailing in the Anti-Dumping and Countervailing regulation of the People''s Republic of China promulgated by the State Council on March 25, 1997 shall be nullified at the same time.
Attachment: Illustrative List of Export Subsidies
1. The provision by the government of the exporting country (region) of direct subsidy to an enterprise or an industry contingent upon export performance.
2. Foreign exchange retention schemes or any similar practices which involve a bonus on exports.
3. Internal transport and freight charges on export shipments, provided or approved by the government of the exporting country (region), on terms more favorable than for domestic shipments.
4. The provision by the government of the exporting country (region) either directly or indirectly of terms or conditions of products or services for the manufacture of exports, which are more favorable than those of relevant products or services for the manufacture of domestic products, with the exception of particular circumstances.
5. The full or partial reduction, exemption or deferred payment of direct taxes or social welfare charges specifically related to exports, which are paid or payable by enterprises.
6. The deductions directly related to exports or export performance, over and above those granted in respect to domestic products, in the calculation of the base on which direct taxes are levied.
7. The reduction, exemption or refund, in respect of the manufacture and distribution of exports, of indirect taxes in excess of those levied in respect of the manufacture and distribution of the domestic products of the same category.
8. The reduction, exemption, refund or deferred payment of advance cumulative indirect taxes on goods or services used in the manufacture of exports in excess of the reduction, exemption, refund or deferred payment of advance cumulative indirect taxes on goods or services used in the manufacture of domestic products of the same category, with the exception of particular circumstances.
9. The reduction, exemption or refund of import charges levied on imported inputs related to the manufacture of the exports, in excess of those levied on the inputs when they are imported, with the exception of particular circumstances.
10. The provision by the government of the exporting country (region) of export credit guarantee or insurance programs, or of insurance or guarantee programs against increases in the cost of exports or of foreign exchange risk programs, at premium rates which are inadequate to cover the long-term operating costs and losses of the programs.
11. The grant by the government of the exporting country (region) of export credits at rates below those at which it has to pay for the funds so used, or the payment by it of all or part of the costs incurred by exporters or other financial institutions in obtaining loans, in so far as they obtain the advantage in the field of export credit, with the exception of particular circumstances.
12. Any other charge on the public account constituting an export subsidy.
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