Thông tư 37/2019/TT-BCT

CIRCULAR

PROVIDING DETAILED REGULATIONS ON TRADE REMEDIES

Pursuant to the Law on Foreign Trade Management 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;

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

The Minister of Industry and Trade promulgates a Circular providing for trade remedies.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides detailed regulations on interested parties in an investigation case; provision, collection and confidentiality of information and documents; languages used during investigation; management of imports subject to trade remedy investigations; exclusion from trade remedies.

Article 2. Regulated entities

1. Regulatory bodies competent to investigate, apply and handle trade remedies.

2. Vietnamese traders, foreign traders, other domestic and foreign agencies, organizations and individuals involved in the investigation, application and handling of trade remedies.

Article 3. Interpretation of terms

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

1. “special products" refers to the products which have physical and chemical properties similar to but have some characteristics, appearance or quality different from the like or directly competitive products produced by the domestic industry.

2. “non-confidential summary” refers to the summary of information upon the treatment of information as confidential by the investigating authority and which provides sufficient detail to serve receiving parties’ reasonable understanding of information submitted in confidence.

3. The authority in charge of trade remedies investigations (hereinafter referred to as “the investigating authority”) is the Trade Remedies Authority of Vietnam affiliated to the Ministry of Industry and Trade.

Article 4. Language used during trade remedy investigations

1. Vietnamese language shall be used during trade remedy investigations. Interested parties are allowed to use their mother languages with the presence of accompanied interpreters/translators.

2. Information and documents in other languages provided by interested parties must be translated into Vietnamese. Interested parties must ensure the truthfulness and accuracy and assume liability for contents of such translations.

Article 5. Investigating authority’s responsibility to provide information

1. Before issuing the decision to apply an official anti-dumping or countervailing measure, the investigating authority must provide the draft disclosure of investigation determinations to both requesting party and requested party and get their opinions thereon.

2. The investigating authority shall:

a) send exclusion decisions to requesters for exclusion;

b) send the decision on revocation of the issued exclusion decision to the organization or individual whose good is granted exclusion from trade remedies;

c) send written exclusion decisions and decisions on revocation of exclusion decisions to the Ministry of Finance;

d) publish exclusion decisions and decisions on revocation of exclusion decisions on its website and the website of the Ministry of Industry and Trade.

Article 6. Registration as interested parties in trade remedy investigations

1. After the Minister of Industry and Trade has made a decision to conduct a trade remedy investigation or review the imposition of trade remedies, organizations and individuals prescribed in Clause 1 Article 74 of the Law on Foreign Trade Management may register to participate in the trade remedy investigation as interested parties.

2. The Ministry of Industry and Trade shall consider determining the time limit for registration as interested parties in each trade remedy investigation provided that it shall not be fewer than 60 working days from the effective date of the Decision on conduct of trade remedy investigation or review of imposition of trade remedies.

3. Organizations and individuals shall prepare applications according to the application form for registration as interested parties in Appendix 01 enclosed herewith and send them to the investigating authority within the time limit specified in the Decision on conduct of trade remedy investigation or review of imposition of trade remedies.

4. Upon the receipt of applications for registration as interested parties, except the cases prescribed in Point a, Point d and Point dd Clause 1 Article 74 of the Law on Foreign Trade Management, the investigating authority shall consider whether a party is accepted as an interested party or not within a period of 07 working days. If an application for registration as interested party is refused, the investigating authority shall provide written reasons for such refusal.

5. If applications for registration as an interested party are submitted after the time limit specified in Clause 2 of this Article, the investigating authority shall consider accepting applicants as interested parties.

6. Organizations and individuals that are accepted as interested parties shall have rights and obligations defined in Article 9 and Article 10 of the Government’s Decree No. 10/2018/ND-CP dated January 15, 2018.

Article 7. Import declaration

1. The import declaration for goods subject to trade remedy investigations as prescribed in Article 8 of the Government's Decree No. 10/2018/ND-CP dated January 15, 2018 included in the import dossier shall be made according to the Form in Appendix II enclosed herewith.

2. Import procedures specified in Clause 1 of this Article may be completed online in accordance with law regulations.

Chapter II

REGULATIONS ON PROVISION AND CONFIDENTIALITY OF INFORMATION AND DOCUMENTS DURING TRADE REMEDY INVESTIGATIONS

Article 8. Information to be published during a trade remedy investigation

If requested by interested parties, the investigating authority shall provide non-confidential summaries of the following information/documents:

1. The petition for trade remedy investigation submitted by the requesting party and its accompanied appendixes;

2. Documents provided by interested parties when registering for participating in the investigation case;

3. Completed questionnaires and additional questionnaires provided by interested parties during the investigation;

4. Documents provided by interested parties to the investigating authority during the trade remedy investigation, including documents serving the consultations; written opinions about the petition for trade remedy investigation given by interested parties;

5. Records or summaries of public consultations about the investigation case made by the investigating authority;

6. Notices issued by the investigating authority and the Ministry of Industry and Trade, including notices of the receipt of the petition for trade remedy investigation or review, disclosures of preliminary and final determinations, notices of acceptance of applications for registration as interested parties and questionnaires, public consultations, limitation of the scope of investigation by sampling, notices of acceptance or non-acceptances of commitments;

7. Other information concerning the trade remedy investigation to be published by the investigating authority during the investigation.

Article 9. Request for protection of confidential information concerning a trade remedy investigation

1. The investigating authority shall consider accepting the request for protection of confidential information furnished by interested parties of a trade remedy investigation, including:

a) Business secrets relating characteristics of some products or production process;

b) Confidential information concerning the enterprise’s production, business and finances, including production costs, selling expenses, terms of sales, selling price of each transaction, planned transactions or other offers for sale, information about clients, distributors or suppliers, and the enterprise’s financial information;

c) Information about the dumping margin of a specific enterprise involved in an anti-dumping investigation;

d) Information concerning interests received by the requesting party under a subsidy program to be investigated or reviewed in an anti-subsidy investigation case, except the program specification, amounts specified in documents or announced publicly, and the subsidy rate for each sales transaction which is calculated and allocable to the requesting party under a subsidy program;

dd) Other information which is found by the investigating authority that its disclosure would have significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information or its disclosure would be of significant competitive advantage to a competitor of the party supplying the information.

2. If a request for protection of confidential information is refused, the investigating authority shall clearly provide reasons thereof within 45 working days from the receipt of the request.

Chapter III

EXCLUSION FROM TRADE REMEDIES

Section 1. SCOPE, TIME LIMITS, ENTITIES AND CRITERIA OF EXCLUSION FROM TRADE REMEDIES

Article 10. Scope of exclusion from trade remedies

The Minister of Industry and Trade shall consider granting exclusions from provisional and/or official trade remedies on certain imports subject to trade remedies in the following circumstances:

1. Goods cannot be domestically produced;

2. The good has characteristics which are different from and cannot be substituted by the domestically produced products;

3. The goods are special products of the like or directly competitive products produced by domestic industry;

4. There are no sale of the like or directly competitive products produced by the domestic industry in the ordinary course of trade in the domestic market;

5. The like or directly competitive products produced by the domestic industry are not enough to satisfy the needs of the domestic market;

6. The imports within the total quantities of imports requesting for exclusion prescribed in Clause 1 through 5 of this Article are intended for serving research and development purposes as well as other non-commercial purposes.

Article 11. Period of exclusion from trade remedies

1. With regard to the exclusion from trade remedies prescribed in Point a Clause 1 Article 16 hereof, the exclusion period shall not exceed the period of application of such provisional trade remedies.

2. With regard to the exclusion from trade remedies prescribed in Point b Clause 1 Article 16 hereof, the investigating authority shall consider deciding the exclusion period which shall not exceed 18 months from the effective date of the decision on imposition of trade remedies to the end of December 31 of the same year December 31 or of the following year.

3. With regard to the exclusion from trade remedies prescribed in Point c Clause 1 Article 16 hereof, the investigating authority shall consider deciding the exclusion period which shall not exceed 18 month commencing from the January 01 of the year in which the request for exclusion is received or from the date of promulgation of the exclusion decision.

4. With regard to the requests for additional exclusion received by the investigating authority as per Clause 4 Article 16 hereof, the exclusion period shall be conformable with the effect of the initially issued exclusion decision.

Article 12. Entities requesting exclusion from trade remedies

The following entities may submit requests for exclusion from trade remedies:

1. Importers of the good which is subject to the trade remedy investigation;

2. Users of the good which is subject to the trade remedy investigation for their production;

3. Other organizations and individuals as decided by the Minister of Industry and Trade.

Article 13. Criteria and forms of grant of exclusion from trade remedies

1. The Minister of Industry and Trade shall consider and decide to grant exclusion from trade remedies on goods in the circumstances laid down in Article 10 hereof on the basis of reports on appraisal of requests for exclusion made by the investigating authority. The investigating authority shall promulgate and announce the procedures for appraisal of request for exclusion from trade remedies.

2. Every request for exclusion of the good from trade remedies as prescribed in Article 10 hereof shall be considered according to one or some of the following criteria:

a) Regulations on list of products which cannot be produced domestically, investigation determinations, technical regulations, standards, opinions given by regulatory authorities, business or trade associations, and other relevant technical documents;

b) Ingredients, physical and chemical properties, standards, technical regulations, uses of the good;

c) The possibility to produce the like or directly competitive products by the domestic industry compared to the good for which the exclusion is requested;

d) The availability of the like or directly competitive products produced by the domestic industry to substitute the product for which exclusion is requested.

3. The exclusion from trade remedies shall be granted in each specific case in one of the following forms:

a) There is no limitation on users, uses, volume or quantity of the good granted exclusion in case it is able to distinguish the good for which the exclusion request is submitted and the good subject to trade remedies;

b) The volume or quantity of the good granted exclusion and/or its uses shall be limited.

4. The Ministry of Industry and Trade shall refuse to grant exclusion from trade remedies in case such exclusion may facilitate the evasion of trade remedies.

Section 2. RECEIPT AND PROCESSING OF EXCLUSION REQUESTS

Article 14. Request for exclusion from trade remedies

1. A request for exclusion from trade remedies (hereinafter referred to as the “exclusion request”) includes the following documents:

a) A written request for exclusion from trade remedies made according to the form stated in the Appendix III enclosed herewith;

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

c) Description of the good for which the exclusion request is submitted, including scientific name, trade name, common name; basic physical and chemical properties; main uses; production process; applicable international and domestic standards and/or regulations; HS code according to Vietnam’s nomenclature of exports and imports;

d) The document stating information about the volume, quantity and value of the imported good for which the exclusion request is submitted (in the last 03 years and in current year);

dd) The written production process of the product of which input material is the good for which the exclusion request is submitted;

e) The demand for consumption or use of the imported good for which the exclusion request is submitted (in the past 03 years and in the current year);

g) The prescribed or estimated level of consumption of raw material which is the good for which the exclusion request is submitted;

h) Documents or samples proving the difference between the good for which the exclusion request is submitted and the like or directly competitive products produced by the domestic industry;

i) The document stating information about the production line and output of the good for which the exclusion request is submitted in the past 03 years and those in the current year;

k) Documents proving the demand for use of the quantity of good for which the exclusion request is submitted, including contracts signed with customers, written approvals for in-progress projects or other relevant documents.

2. If an organization or individual submits an additional exclusion request to the investigating authority as prescribed in Clause 4 Article 16 hereof, the additional exclusion request includes:

a) A written request for (additional) exclusion from trade remedies made according to the form stated in the Appendix III enclosed herewith;

b) A copy of the import quantity monitoring sheet of the good granted exclusion given by the customs authority;

c) The report on inventory of the product granted the exclusion;

d) The report on the production of goods of which the input material is the good granted exclusion;

dd) The production plan for the following year, contracts signed and to be performed or other necessary information/documents.

3. Based on the exclusion request or the additional exclusion request, the investigating authority shall appraise the received request and request the Minister of Industry and Trade to issue the decision on exclusion from trade remedies or the decision on additional exclusion.

Article 15. Submission and monitoring of exclusion requests

1. Exclusion requests, additional exclusion requests and import declarations of the good subject to the trade remedy shall be received and processed online via the public service portal as regulated by law.

2. Organizations and individuals shall submit requests and monitor processing status thereof via registered email addresses or accounts for accessing the portal for updating and modifying information at the request of the investigating authority.

3. If the exclusion request must be supported by sample goods, such sample goods must be sent directly or by post to the investigating authority.

Article 16. Notice of acceptance of exclusion requests

1. The investigating authority shall make notice of acceptance of exclusion request:

a) after the Ministry of Industry and Trade has issued a decision on imposition of provisional trade remedies;

b) after the Ministry of Industry and Trade has issued a decision on imposition of official trade remedies;

c) in March and September every year.

2. In case of changes in trade remedies, they must be promptly informed by the investigating authority to requesters for exclusion so that they can formulate their own suitable business plans.

3. Within 30 days from the date on which the investigating authority gives notice of acceptance of exclusion request, the requester for exclusion must submit the exclusion requests as prescribed in Article 14 hereof to the investigating authority, except the case specified in Article 4 of this Article or other cases regulated by the Ministry of Industry and Trade.

4. If an organization or individual whose good is granted exclusion wishes to request for additional exclusion, it/he/she must submit the additional exclusion request to the investigating authority.

5. Within 15 working days from the receipt of the request for additional information from the investigating authority, the requester for exclusion is liable to provide sufficient and accurate information as requested.

Article 17. Contents of a decision on exclusion from trade remedies

1. Name of the organization or individual whose good is granted exclusion from trade remedies;

2. Specifications of the imported good granted exclusion from trade remedies;

3. The volume and quantity of the imported good granted exclusion from trade remedies;

4. Exclusion period, conditions and obligations of the organization or individual whose good is granted exclusion from trade remedies.

Article 18. Customs procedures and customs inspection of goods granted exclusion

1. Goods granted exclusion from trade remedies are imported by following customs procedures and must undergo the inspection or supervision by customs authorities as prescribed by the Law on customs.

2. When following customs procedures, in addition to the prescribed customs dossier, the importer must also submit the copy of the exclusion to the customs authority.

3. Customs authorities shall manage and monitor the quantity of good imported/exported on the basis of the quantity of good granted exclusion specified in the exclusion decision. Deduction of import/export quantity shall be carried out in accordance with the Law on customs.

Article 19. Refund of trade remedy duties on goods granted exclusion from trade remedies

1. In case the imported good is granted exclusion from trade remedies, the trade remedy duties charged on the shipments for which customs declarations have been submitted within the exclusion period will be refunded.

2. Procedures for claiming refunds of trade remedy duties prescribed in Clause 1 of this Article shall be carried out in accordance with applicable law regulations.

Article 20. Periodical reports

Every 06 months within the exclusion period, the organization or individual whose good is granted exclusion from trade remedies is required to submit reports on the import of good granted exclusion from trade remedies and its/his/her compliance with exclusion conditions and obligations to the investigating authority according to the form in the Appendix IV enclosed herewith.

Article 21. Disposal of scraps, discarded products and excess raw materials

1. Scraps, discarded products and excess raw materials within the limit prescribed in Point g Clause 1 Article 14 hereof may be sold or consumed domestically without paying trade remedy duties.

2. Scraps, discarded products and excess raw materials beyond the limit prescribed in Point g Clause 1 Article 14 hereof shall be sold or consumed domestically with paying trade remedy duties in accordance with applicable law regulations.

Section 3. INSPECTION AND REVOCATION OF DECISIONS ON EXCLUSION FROM TRADE REMEDIES

Article 22. Post-exclusion inspection

1. A post-exclusion inspection team shall be established to conduct the inspection within the scope, subject, contents, duties and period specified in the decision on post-exclusion inspection. The post-exclusion inspection team is composed of the head, members and inspection officials, and a deputy head if deemed necessary.

2. The head of the post-exclusion inspection team is a person who is assigned to perform specialized inspection duties and meets all standards laid down in law regulations on specialized inspection, performs duties and powers as prescribed by law regulations on inspection and those on specialized inspection; assumes responsibility before the law and the person making the inspection decision for his/her performance of inspection duties.

3. Specialized inspection officials must meet all standards for inspectors specializing in industry and trade sector as prescribed by law.

4. Procedures and forms of records used during the post-exclusion inspection shall conform to law regulations on inspection and inspection specializing in industry and trade sector.

Article 23. Post-exclusion examination

1. The post-exclusion examination shall be carried out by adopting the risk management method as prescribed by law to determine the subject, scope and contents of examination of the organization or individual whose good is granted exclusion.

2. The post-exclusion examination is aimed to verify and appraise the compliance by the organization or individual whose good is granted exclusion with conditions and law regulations on exclusion from trade remedies.

3. Contents of a post-exclusion examination include:

a) Examine and verify the legal status of the organization or individual whose good is granted exclusion;

b) Examine and verify the accuracy of the good granted exclusion from trade remedies according to the exclusion request submitted to the investigating authority;

c) Examine the adequacy, legality and validity of customs declarations, accounting records, financial statements, documentation and data relating the imported good granted exclusion from trade remedies;

d) Examine the compliance with conditions and obligations of the requester for exclusion as specified in the exclusion decision;

dd) Examine and verify level of consumption of raw materials, supplies and excess raw materials regarding the good granted exclusion;

e) Examine and verify the scrap ratio of the good granted exclusion.

Article 24. Conducting post-exclusion examination

1. At the request of the investigating authority, the Minister of Industry and Trade shall make decision on examination and establishment of an examination team. The head of the examination team must be an officer of the investigating authority. The examination team shall conduct the examination according to the scope, period and contents specified in the decision on establishment of the examination team.

2. The investigating authority shall send written notices of the decision and plan on post-exclusion examination to the organization or individual whose good is granted exclusion in accordance with law regulations and regulations on examination before conducting the examination.

3. During the examination, the investigating authority is entitled to collect documents and make verification by requesting organizations and/or individuals that concern or are able to give assistance to clarify issues, unreasonable contents or signs of violations. Collection of documents and verification are stipulated as follows:

a) request regulatory authorities, relevant organizations and individuals to cooperate in collecting documents and making verification;

b) Form of verification includes sending written requests or appointing officers to directly communicate relevant authorities, organizations and individuals according to the letter of introduction of the requester for verification;

c) Verification results shall be specified in records, written responses and accompanied documents and articles. Verification results shall be used as the basis for considering the case.

4. The inspected organization or individual shall appoint its/his representative and relevant officers to provide documents and papers as requested and directly work with the examination team.

Article 25. Post-exclusion examination results

1. The examination team shall make the examination report immediately after completing the examination, report the examination results to the authority issuing the examination decision and notify the same to the inspected organization or individual.

2. Depending on the degree of violation specified in the examination report, the examination team shall suggest the inspecting authority to handle or revoke the exclusion decision or transfer the case to a competent authority for consideration in accordance with law regulations.

3. If examination findings are made as regulated in Clause 2 of this Article, the head of the examination team shall send the draft record of inspection findings to the inspected organization or individual. Within 05 working days from the receipt of the draft record of examination findings, the inspected organization or individual shall give a written response (accompanied by written explanation and documentary evidences) if dissenting from such examination findings.

4. Over the time limit specified in Clause 3 of this Article, if the inspected organization or individual gives no response, it is considered to assent to the examination findings.

5. Over the time limit for response, the examination team shall:

a) Consider the explanation sent by the inspected organization or individual or work with its/his representative, where necessary;

b) In case where professional or technical advices are required or where the examination team does not have reasonable grounds for making examination findings, the examination findings shall be issued after obtaining advices from specialized agencies or units.

Article 26. Revocation of exclusion decision

1. The Minister of Industry and Trade shall revoke exclusion decisions when the organization or individual granted the exclusion decision:

a) fails to comply with contents of the exclusion decision;

b) provides inaccurate, insufficient or false information or forges documents/vouchers relating to the production and trading of the product granted exclusion;

c) fails to submit periodical reports as prescribed in Article 20 hereof.

2. The Ministry of Industry and Trade shall cooperate with customs authorities to take actions against the organization or individual that has exclusion decision revoked, and collect taxes/duties as prescribed by law.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 27. Effect

1. This Circular supersedes the Circular No.06/2018/TT-BCT dated April 20, 2018 of the Minister of Industry and Trade and comes into force from January 15, 2020.

2. Difficulties that arise during the implementation of this Circular should be reported to the investigating authority and Ministry of Industry and Trade for consideration.

Article 28. Transition

Requests for trade remedy investigations and exclusion requests submitted before the effective date of this Circular shall be considered and processed in accordance with regulations of the Circular No. 06/2018/TT-BCT dated April 20, 2018.