Thông tư 07/2022/TT-BCT

CIRCULAR

PROVIDING GUIDANCE ON TRADE REMEDIES UNDER THE REGIONAL COMPREHENSIVE ECONOMIC PARTNERSHIP AGREEMENT

Pursuant to the Law on Foreign Trade Management No. 05/2017/QH14 dated June 12, 2017;

Pursuant to the Government’s Decree No. 10/2018/ND-CP dated January 15, 2018 on guidelines for the Law on Foreign Trade Management regarding trade remedies;

Pursuant to the Government’s Decree No. 98/2017/ND-CP dated August 18, 2017 defining the Functions, Tasks, Powers and Organizational Structure of the Ministry of Industry and Trade;

For the purposes of the Regional Comprehensive Economic Partnership (RCEP);

At the request of the Director of the Trade Remedies Authority of Vietnam;

The Minister of Industry and Trade promulgates a Circular providing guidance on trade remedies under the Regional Comprehensive Economic Partnership Agreement.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Circular provides guidelines for application of transitional RCEP safeguard measures, anti-dumping and countervailing duties under the Regional Comprehensive Economic Partnership Agreement.

2. Regulations herein apply to imported goods originating in the Parties of the Regional Comprehensive Economic Partnership Agreement.

Article 2. Regulated entities

1. Vietnamese regulatory authorities that have jurisdiction to conduct investigation, apply and deal with trade remedies under the Regional Comprehensive Economic Partnership Agreement.

2. Domestic and foreign traders, authorities, organizations and individuals involved in the investigation, imposition and handling of trade remedies under the Regional Comprehensive Economic Partnership Agreement.

Article 3. Definitions

For the purposes of this Circular, the terms below shall be construed as follows:

1. “RCEP Agreement” means the Regional Comprehensive Economic Partnership Agreement.

2. “Party” means any member State of the RCEP Agreement.

3. “transitional RCEP safeguard measure” means a safeguard measure described in Article 7.2 of the RCEP Agreement and in Article 99 of the Law on Foreign Trade Management.

4. “transitional safeguard period” means the period from the date of entry into force of the RCEP Agreement until 08 years after the date on which the elimination or reduction of the customs duty on that good is completed in accordance with Vietnam’s Schedule of tariff commitments in the RCEP Agreement.

5. “domestic industry” means, with respect to investigation and application of transitional RCEP safeguard measure, the producers as a whole of the like or directly competitive goods operating within the territory of Vietnam, or those producers whose collective output of the like or directly competitive goods constitutes a major proportion of the total domestic production of that good. The major proportion of the total domestic production shall be determined in accordance with the provisions of Clause 2 Article 4 of the Decree No. 10/2018/ND-CP .

6. “investigating authority” means the Trade Remedies Authority of Vietnam affiliated to the Ministry of Industry and Trade.

7. Interested parties in a trade remedy investigation into imported goods originating in a Party of the RCEP Agreement include:

a) The producer or exporter whose good is imported into the territory of Vietnam and subject to the investigation;

b) The importer of a good subject to investigation;

c) The trade or business association a majority of the members of which are producers or exporters of a good subject to investigation;

d) The Government and competent authorities of the exporting Party of goods subject to investigation;

dd) The applicant for imposition of transitional RCEP safeguard measure or anti-dumping or countervailing duty on goods imported from a Party of the RCEP Agreement;

e) The producer of the domestic like or directly competitive product;

g) The trade or business association of Vietnam a majority of the members of which produce the domestic like or directly competitive good;

h) Such other person or organization that has legitimate rights and interests related to or useful for the investigation or consumer organizations.

Chapter II

ANTI-DUMPING AND COUNTERVAILING MEASURES

Article 4. Notification

1. The investigating authority shall provide to the interested parties at least 07 days advance notice of an on-the-spot investigation schedule and contents to verify the information provided by such interested parties, provided that the conduct of notification does not unnecessarily delay the conduct of the investigation.

2. The investigating authority shall provide written notice to the Party whose originating good is subject to the investigation of its receipt of the application for anti-dumping investigation at least 07 days before the Minister of Industry and Trade issues the decision to initiate such anti-dumping investigation.

3. The investigating authority shall provide written notice to the Party whose originating good is subject to the investigation of its receipt of the application for countervailing investigation at least 20 days before the Minister of Industry and Trade issues the decision to initiate such countervailing investigation. The investigating authority shall provide the non-confidential version of the application for countervailing investigation to the relevant Party on request of its Government.

Article 5. Methods for calculation of dumping margins

When margins of dumping are calculated under Point a and Point b Clause 2 Article 20 of the Decree No. 10/2018/ND-CP , all individual margins, whether positive or negative, shall be counted for the margin of each foreign producer or exporter. Nothing in this Article shall prejudice or affect the investigating authority’s rights to calculate the dumping margins under Point c Clause 2 Article 20 of the Decree No. 10/2018/ND-CP .

Article 6. Disclosure of essential facts

1. At least 10 days before the final determination, the investigating authority shall ensure written disclosure of all essential facts included in the draft final determination. Interested parties are entitled to provide their comments within the time limit specified in Clause 1 Article 9 of the Decree No. 10/2018/ND-CP. The investigating authority shall take into account such comments in their final determination.

2. Essential facts are those facts under consideration which form the basis for the decision to apply trade remedies in accordance with regulations on information confidentiality in force.

Article 7. Treatment of confidential information

When providing confidential information to the investigating authority, interested parties are required to furnish non-confidential summaries of such information as prescribed in Article 11 of the Decree No. 10/2018/ND-CP .

Chapter III

TRANSITIONAL RCEP SAFEGUARD MEASURES

Article 8. Rules for application of transitional RCEP safeguard measures

1. A transitional RCEP safeguard measure and a safeguard measure under Article 91 of the Law on Foreign Trade Management shall not be applied, at the same time, to the same good eligible for the most-favoured-nation customs duty rate under the RCEP Agreement.

2. A transitional RCEP safeguard measure shall not be applied beyond the expiration of the transitional safeguard period.

Article 9. Grounds for investigation

1. The investigation for application of transitional RCEP safeguard measure shall be initiated upon receipt of the application for transitional RCEP safeguard measure from the domestic producers of a like or directly competitive good. The application shall include the evidence that imports of an originating good from Parties to Vietnam have increased and caused or are threatening to cause serious injury to a domestic industry.

2. At the request of the investigating authority, the Minister of Industry and Trade shall issue a decision to apply the transitional RCEP safeguard measure in case there is clear evidence that imports of an originating good from Parties to Vietnam have increased and caused or are threatening to cause serious injury to a domestic industry.

Article 10. Application for imposition of transitional RCEP safeguard measures

1. An application for imposition of a transitional RCEP safeguard measure (referred to as “Application” in this Chapter) includes the application form for imposition of the transitional RCEP safeguard measure and relevant documents specified in Article 47 of Decree No. 10/2018/ND-CP.

2. The application form for imposition of the transitional RCEP safeguard measure shall be made according to Clause 2 Article 47 of the Decree No. 10/2018/ND-CP must include the following information:

a) Name, address and other necessary information of the representative of the domestic industry;

b) Information, figures and evidences used for determining the representative of the domestic industry, including the list of domestic producers of the like or directly competitive goods; amount, quantity of the like or directly competitive goods manufactured by those producers;

c) Name, address of producers of the like good supporting or opposing the case;

d) Description of the imported good eligible for the at the most-favoured-nation rate of customs duty under the RCEP Agreement and subject to the investigation for imposition of the transitional RCEP safeguard measure, including scientific name, commercial name, common name, composition, physical and chemical properties, main uses, production process, applied international and Vietnamese standards and/or regulations, HS code and the at the most-favoured-nation rate of customs duty in effect as specified in the special preferential import tariff schedule for implementation of the RCEP Agreement;

dd) Description of the like or directly competitive good of the domestic industry, including scientific name, commercial name, common name, physical and chemical properties, main uses, production process, applied international and Vietnamese standards and/or regulations;

e) Information relating to amounts, quantities and values of the imported good as prescribed in Point d of this Clause within the 03-year period before submitting the application, including at least 06 months after the RCEP Agreement comes into force; The customs value of the imported good shall be calculated in accordance with the Agreement on Implementation of Article VII of GATT 1994.

g) Information relating to amounts, quantities and values of the like or directly competitive good produced by the domestic industry as prescribed in Point dd of this Clause within the 03-year period before submitting the application, including at least 06 months after the RCEP Agreement comes into force. If the operating duration of the domestic industry is less than 03 years, the submitted data shall include the entire operating duration of the domestic industry by the time of submission of the Application;

h) Information, figures and evidences about the serious injury or threat of serious injury to the domestic industry;

i) Information, figures and evidences about the causal link between the imported product prescribed in Point d of this Clause and the serious injury or threat of serious injury to the domestic industry;

k) Specific requests for application of the transitional RCEP safeguard measure, duration and level of the safeguard measure.

Article 11. Investigation procedures

1. The investigation for application of a transitional RCEP safeguard measure shall be initiated in accordance with Article 70 of the Law on Foreign Trade Management and Section 1 Chapter III of the Decree No. 10/2018/ND-CP .

2. The investigation for application of a transitional RCEP safeguard measure must be completed within the maximum duration of 01 year following the issue date of the decision to initiate the investigation.

3. At the request of the investigating authority, the Minister of Industry and Trade shall decide to apply the transitional RCEP safeguard measure when the final determination given by the investigating authority contains the following findings:

a) There is an absolute or relative increase in amounts or quantities of imported good benefiting from the at the most-favoured-nation rate of customs duty under the RCEP Agreement, compared to those of the like and directly competitive good domestically produced;

b) The domestic industry suffers from serious injury or threat of serious injury;

c) The serious injury or threat of serious injury incurred by the domestic industry is caused by the increased imports as set out in Point a of this Clause.

Article 12. Application of a transitional RCEP safeguard measure

1. Where necessary, on the basis of preliminary determination, the Minister of Industry and Trade shall decide to apply the provisional transitional RCEP safeguard measure. The application of the provisional transitional RCEP safeguard measure shall comply with Clause 1 Article 95 of the Law on Foreign Trade Management and Article 52 of the Decree No. 10/2018/ND-CP .

2. The provisional transitional RCEP safeguard measures and transitional RCEP safeguard measures to be applied include:

a) Suspend the further reduction of any rate of customs duty provided for in the RCEP Agreement on the imported good; or

b) Apply the safeguard tax in the form of the additional import duty imposed on the subject good. The sum of the rate of import duty under Vietnam’s special preferential import tariff schedule for implementation of the RCEP Agreement and the safeguard tax shall not exceed the lesser of the most-favoured-nation applied rate of customs duty in effect on the day when this measure is applied, or the most-favoured-nation applied rate of customs duty in effect on the day immediately preceding the date of entry into force of the RCEP Agreement.

3. The transitional RCEP safeguard measure shall be applied for a period not exceeding 03 years, including the period of application of a provisional transitional RCEP safeguard measure.

4. In case the period of application of the transitional RCEP safeguard measure, including the period of application of the provisional transitional RCEP safeguard measure, exceeds 01 year, the transitional RCEP safeguard measure may be progressively liberalized.

5. The application of the transitional RCEP safeguard measure may be extended by up to 01 year on the basis of expiry review results. The procedures for expiry review of the transitional RCEP safeguard measure shall comply with Clause 2 Article 96 of the Law on Foreign Trade Management and Article 69 of the Decree No. 10/2018/ND-CP .

6. On the termination of the transitional RCEP safeguard measure, the rate of customs duty shall be imposed on the relevant good according to Vietnam’s special preferential import tariff schedule for implementation of the RCEP Agreement in effect at the time of termination of such transitional RCEP safeguard measure.

7. A provisional transitional RCEP safeguard measure or transitional RCEP safeguard measure shall not be applied to an originating good of a Party if meeting the following conditions:

a) The share of imports of the good concerned from that Party, in terms of amounts or quantities, does not exceed 3% of the total imports of that good from all the Parties;

b) Total share of imports of the good concerned from the Parties specified in Point a of this Clause, in terms of amounts or quantities, does not exceed 9% of the total imports of that good from all the Parties.

8. A provisional transitional RCEP safeguard measure or transitional RCEP safeguard measure shall not be applied to an originating good of any least developed country party. The list of least developed country parties shall be compiled according to Clause 2 Article 15 of the Decree No. 10/2018/ND-CP and the RCEP Agreement.

9. No transitional RCEP safeguard measure shall be applied to the import of an originating good for a period of 01 year from the date on which the first tariff reduction or tariff elimination takes effect for that originating good as committed under the RCEP Agreement.

10. No transitional RCEP safeguard measure shall be applied again to the import of a particular originating good that has been subject to a transitional RCEP safeguard measure, for a period of time equal to the duration of the previous transitional RCEP safeguard measure or 01 year since the expiry of such measure, whichever is longer.

Article 13. Notification and consultations

1. The investigating authority shall provide written notice to the other Party in the following circumstances:

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

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

c) The investigating authority has given the draft preliminary determination or the draft final determination;

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

dd) The Minister of Industry and Trade decides to modify the application of the provisional transitional RCEP safeguard measure, or modify the application or extension of the transitional RCEP safeguard measure.

2. A written notice prescribed in Point a Clause 1 of this Article shall include:

a) A description of the imported good eligible for the most-favoured-nation rate of customs duty under the RCEP Agreement and subject to the transitional RCEP safeguard measure, including its name, heading and the most-favoured-nation rate under the special preferential import tariff schedule for implementation of the RCEP Agreement;

b) A summary of the reason for the decision to initiate the investigation issued by the Minister of Industry and Trade;

c) The date of the Minister of Industry and Trade’s decision to initiate the investigation and the period of investigation.

3. A written notice referred to in Point c and Point d Clause 1 of this Article shall include:

a) A description of the imported good eligible for the most-favoured-nation rate of customs duty under the RCEP Agreement and subject to the transitional RCEP safeguard measure, including its name, heading and the most-favoured-nation rate under the special preferential import tariff schedule for implementation of the RCEP Agreement;

b) Evidence of the serious injury or threat of serious injury caused by increased imports of the originating good of another Party or Parties as a result of the reduction or elimination of a customs duty pursuant to the RCEP Agreement;

c) A description of the proposed provisional transitional RCEP safeguard measure or transitional RCEP safeguard measure;

d) The proposed date of the introduction of the provisional transitional RCEP safeguard measure or transitional RCEP safeguard measure, its expected duration, and timetable for the progressive liberalization of the transitional RCEP safeguard measure;

dd) Evidence that the domestic industry concerned is adjusting in the case the Minister of Industry and Trade decides to extend the application of the transitional RCEP safeguard measure.

4. A written notice referred to in Point dd Clause 1 of this Article shall include:

a) A description of the imported good eligible for the most-favoured-nation rate of customs duty under the RCEP Agreement and subject to the transitional RCEP safeguard measure, including its name, heading and the most-favoured-nation rate under the special preferential import tariff schedule for implementation of the RCEP Agreement;

b) Modification of the application of the provisional transitional RCEP safeguard measure, or modification of the application or extension of the transitional RCEP safeguard measure.

5. The investigating authority shall provide written notice to Parties of the RCEP Agreement before the Minister of Industry and Trade decides to apply the provisional transitional RCEP safeguard measure.

6. The investigating authority shall provide to another Party a copy or address of the website on which the public version of the report on the case. The provided report must be in Vietnamese language.

7. The consultations held at the request of interested parties during the investigation or review for extension of a transitional RCEP safeguard measure shall comply with Clause 1 Article 13 of the Decree No. 10/2018/ND-CP .

Article 14. Compensation

1. Compensation procedures in case Vietnam initiates investigation, applies or extends the transitional RCEP safeguard measure shall be followed in accordance with Article 7.7 of the RCEP Agreement.

2. Authority to make compensation shall comply with Clause 3 Article 98 of the Law on Foreign Trade Management.

Chapter IV

IMPLEMENTATION

Article 15. Effect

This Circular comes into force from May 08, 2022./.