Circular No. 06/2018/TT-BCT dated April 20, 2018 of the Ministry of Industry and Trade on detailing a number of provisions on trade remedies

CIRCULAR

Detailing a number of provisions on trade remedies^[1]

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

Pursuant to the Government’s Decree No. 10/2018/ND-CP of January 15, 2018, detailing a number of articles of the Law on Foreign Trade Management regarding trade remedies;

Pursuant to the Government’s Decree No. 98/2017/ND-CP of August 18, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

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

The Minister of Industry and Trade promulgates the Circular detailing a number of provisions on trade remedies.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Circular gives detailed provisions on related parties in investigation cases; provision, collection and confidentiality of information and documents; spoken and written language used in the investigation process; management of the import of goods subject to investigation for application of trade remedies; and cases of exemption from trade remedies.

Article 2.Subjects of application

1. State management agencies competent to investigate, apply and handle trade remedies.

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

Article 3.Interpretation of terms

In this Circular, the terms below are construed as follows:

1. Special products means products having the same physical or chemical properties as domestically manufactured similar goods or directly competitive goods but having some outer characteristics and shapes or their quality different from those of domestically manufactured similar goods or directly competitive goods.

2. Public information sheet means an information sheet in which the information the investigation body is requested to keep confidential and helps the information recipient correctly understand the nature of information has been processed without disclosing confidential information.

Article 4.Spoken and written language in the process of investigation for application of trade remedies

1. The spoken and written language in the process of investigation for application of trade remedies is Vietnamese. Related parties may use spoken and written languages of their nations but an interpreter is required in this case.

2. Information and documents not in Vietnamese provided by related parties shall be translated into Vietnamese. Related parties shall ensure and take responsibility before law for the truthfulness and accuracy of the translations.

Article 5.Registration of related parties in investigation cases for application of trade remedies

1. After the Minister of Industry and Trade issues a decision on investigation for application of trade remedies or review of a trade remedy case, the organizations and individuals defined in Clause 1, Article 74 of the Law on Foreign Trade Management may register their participation in the investigation case in the capacity as related parties.

2. The investigation body shall consider setting a time limit for registration of related parties in each investigation case for application of trade remedies, which is 20 working days from the effective date of the decision on investigation or review of a trade remedy case.

3. Registrations shall be made according to the form of registration of related parties in Appendix 01 to this Circular, and sent to the investigation body within the time limit specified in the decision on investigation or review of a trade remedy case.

4. Within 7 working days after receiving a registration of related parties, the investigation body shall certify its acceptance or rejection of the registering organizations and/or individuals to be related parties in a trade remedy case. In case of rejection, the investigation body shall state the reason.

5. If organizations or individuals fail to register their participation in a trade remedy case in the capacity as related parties within the time limit specified in Clause 2 of this Article, the investigation body may reject them to be related parties in the case, except the organizations and individuals defined at Points a and dd, Clause 1, Article 74 of the Law on Foreign Trade Management and the governments and competent authorities of the countries exporting goods subject to investigation in countervailing investigation cases specified at Point d, Clause 1, Article 74 of the Law on Foreign Trade Management.

6. Organizations and individuals accepted to be related parties have the rights and obligations defined in Articles 9 and 10 of the Government’s Decree No. 10/2018/ND-CP of January 15, 2018, detailing a number of articles of the Law on Foreign Trade Management regarding trade remedies.

Article 6.Import declarations

Import declarations in import declaration dossiers shall be made according to the form in Appendix 02 to this Circular.

Chapter II

PROVISION AND CONFIDENTIALITY OF INFORMATION AND DOCUMENTS IN INVESTIGATION CASES FOR APPLICATION OF TRADE REMEDIES

Article 7.Types of public information in investigation cases for application of trade remedies

Public information sheets of the following types of information and documents may be disclosed in investigation cases for application of trade remedies:

1. Dossiers of request for investigation for application of trade remedies provided by the requesting party and their annexes.

2. Documents provided by related parties for registration of participation in investigation cases.

3. Questionnaires and additional questionnaires provided by related parties in the investigation process.

4. Other documents provided by related parties to the investigation body in the process of investigation for application of trade remedies, including documents serving the organization of consultation meetings; and opinions on dossiers of request for investigation provided by related parties.

5. Minutes of or written summaries on consultation meetings on investigation cases.

6. Notices issued by the investigation body and the Ministry of Industry and Trade, including notices of the receipt of dossiers of request for investigation for application of trade remedies, initial conclusions, final conclusions, and notices of registrations of related parties, questionnaires, and documents on on-site investigations, public consultation meetings, and restrictions on the scope of sample investigation.

7. Documents on contents of trade remedy investigations as a basis for the investigation body to make final conclusions.

8. Other information considered by the investigation body to be disclosed in the investigation process.

Article 8.Requests for information confidentiality in investigation cases for application of trade remedies

1. The investigation body shall consider and approve a request for confidentiality of information provided by related parties in an investigation case for application of trade remedies, including:

a/ Business secrets related to the nature of a product or manufacturing process;

b/ Information on production and business activities of an enterprise, such as production costs; costs of goods sold; sale terms other than those to be disclosed; selling prices of specific transactions and expected transactions and other offers; information on customers, distributors and suppliers; and financial information of the enterprise;

c/ Information on the dumping margin for each specific transaction in the anti-dumping investigation case;

d/ Information on the benefit to which the requested party is entitled for each subsidy program under investigation or review in the countervailing investigation case, except information describing activities of the program, documented or officially published quantity of goods; and rate of subsidy based on goods sale transactions calculated for each requested party under a program;

dd/ Other information which, if being disclosed, is deemed by the investigation body to be likely to significantly affect or harm the competitive advantage of the information provider.

2. Within 7 working days after receiving a request for information confidentiality, if rejecting the request, the investigation body shall issue a notice stating the reason to the requesting party.

Chapter III

EXEMPTION FROM TRADE REMEDIES

Section 1

SCOPE, REQUESTERS, CRITERIA AND TIME LIMIT FOR CONSIDERATION OF EXEMPTION FROM TRADE REMEDIES

Article 9.Scope and time limit of exemption from trade remedies

1. The Minister of Industry and Trade shall consider exemption from provisional or official trade remedies for a number of imported goods subject to trade remedies in one of the following cases:

a/ Imported goods have their characteristics different from domestically manufactured similar goods or directly competitive goods which are unsubstitutable;

b/ Imported goods are special products of domestically manufactured similar goods or directly competitive goods;

c/ Domestically manufactured similar goods or directly competitive goods are not sold in the domestic market under the same normal conditions;

d/ The volume of domestically manufactured similar goods or directly competitive goods does not meet the domestic demand.

2. The time limit of exemption from trade remedies is prescribed below:

a/ It shall be counted from the effective date of a decision on application of provisional or official trade remedies or decision on results of review of trade remedies through December 31 of the year of issuance of the exemption decision, for dossiers of request for exemption from trade remedies received by the investigation body under Clause 1, Article 13 of this Circular.

b/ It is 1 year, from January 1 through December 31 of the subsequent year, for dossiers of request for exemption from trade remedies received by the investigation body under Clause 2, Article 13 of this Circular.

c/ It shall be counted from the date of receipt of a complete and valid dossier of request for exemption from trade remedies through December 31 of the year of issuance of the exemption decision, for dossiers of request for additional exemption received by the investigation body under Clause 4, Article 13 of this Circular.

Article 10.Requesters for exemption from trade remedies

Requesters for exemption from trade remedies include:

1. Organizations and individuals that import goods subject to investigation for application of trade remedies;

2. Organizations and individuals that use goods subject to investigation for application of trade remedies for manufacture;

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

Article 11.Criteria for consideration and forms of exemption from trade remedies

1. The Minister of Industry and Trade shall consider and decide on exemption from trade remedies for eligible goods specified in Clause 1, Article 9 of this Circular on the basis of the investigation body’s appraisal reports.

2. In each specific case, the investigation body shall consider goods requested for exemption from trade remedies based on one or more of the following criteria:

a/ Trade name, physical properties or chemical properties of the goods requested for exemption from trade remedies to distinguish them from the goods subject to trade remedies;

b/ Technical standards of the goods requested for exemption from trade remedies;

c/ Quality of the goods requested for exemption from trade remedies;

d/ Use purposes of the goods requested for exemption from trade remedies;

dd/ A domestic industry’s capacity to manufacture similar goods or directly competitive goods against the goods requested for exemption from trade remedies;

e/ Substitutability of domestically manufactured similar goods or directly competitive goods against the goods requested for exemption from trade remedies;

g/ Other criteria as decided by the Minister of Industry and Trade.

3. Organizations and individuals shall be entitled to exemption from trade remedies based on the volume and quantity of imported goods.

Section 2

REQUEST, EXAMINATION AND WITHDRAWAL OF EXEMPTION FROM TRADE REMEDIES

Article 12.Dossiers of request for exemption from trade remedies

1. A dossier of request for first-time exemption from trade remedies (below referred to as exemption dossier) must comprise:

a/ A written request for exemption from trade remedies, made according to the form in Appendix 03 to this Circular;

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

c/ Information describing imported goods requested from exemption from trade remedies, including scientific names, trade names and common names; basic physical and chemical properties; main use purpose; manufacturing process; applicable international and Vietnamese standards and regulations; goods headings according to Vietnam’s List of Exports and Imports and applicable import duty rates specified in the Export Tariff or Import Tariff in each period;

d/ Information on the volume, quantity and value of imported goods requested for exemption from trade remedies (normally in the last 3 years and the current year);

dd/ The product manufacturing process with input materials being goods requested for exemption from trade remedies (if any);

e/ Demands for consumption or use of imported goods requested for exemption from trade remedies (normally in the last 3 years and the current year);

g/ Wastage or use norms of materials being imported goods requested for exemption from trade remedies;

h/ Documents or samples proving the difference of the goods requested for exemption from trade remedies and imported goods subject to trade remedies.

2. In case organizations and individuals submit a dossier of request for additional exemption from trade remedies to the investigation body under Clause 4, Article 13 of this Circular, such dossier must comprise:

a/ A written request for (additional) exemption from trade remedies, made according to the form in Appendix 03 to this Circular;

b/ Information on the volume, quantity and value of imported goods requested for additional exemption from trade remedies;

c/ Information, documents and proofs of the request under regulations on exemption from trade remedies;

d/ Other documents relevant to the request.

3. Based on a dossier of request for first-time or additional exemption from trade remedies, the investigation body shall appraise it and propose the Minister of Industry and Trade to issue a decision on first-time or additional exemption from trade remedies.

Article 13.Notification of receipt of exemption dossiers

1. After the Minister of Industry and Trade issues a decision on application of provisional or official trade remedies or decision on results of review of trade remedies, the investigation body shall issue notices of the receipt of exemption dossiers.

2. For cases of application of safeguard measures, in October every year, the investigation body shall issue notices of the receipt of exemption dossiers. In case of any change in safeguard measures, the investigation body shall promptly notify such change to the exemption requesters for them to prepare appropriate business plans.

3. Within 30 days from the date the investigation body issues a notice of the receipt of an exemption dossier, the exemption requester shall send the exemption dossier prescribed in Article 12 of this Circular to the investigation body, except the case specified in Clause 4 of this Article.

4. In case the organization or individual that is entitled to exemption from trade remedies wishes to add goods eligible for exemption from trade remedies to the decision on exemption from trade remedies in the exemption period, it/he/she may send a dossier of request for additional exemption from trade remedies to the investigation body.

5. Within 15 working days after receiving the investigation body’s written request for additional information, an exemption requester shall provide adequate and accurate information as requested.

Article 14.Contents of a decision on exemption from trade remedies

1. Name of the organization or individual entitled to exemption from trade remedies;

2. Description of imported goods eligible for exemption from trade remedies;

3. Volume and quantity of imported goods eligible for exemption from trade remedies;

4. Exemption period, and conditions on and obligations of the organization or individual entitled to exemption from trade remedies.

Article 15.Refund of trade remedy duty

1. If imported goods are eligible for exemption from trade remedies, the importer will be refunded the trade remedy duty amount already paid for imported goods lots with customs declarations registered within the exemption period under the exemption decision.

2. Procedures for trade remedy duty refund prescribed in Clause 1 of this Article must comply with current regulations.

Article 16.Periodical reporting

Every 6 months within the exemption period, organizations and individuals entitled to exemption from trade remedies shall submit to the investigation body reports on the import of goods eligible for exemption from trade remedies and the compliance with the conditions and obligations for exemption from trade remedies, made according to the form in Appendix 04 to this Circular.

Article 17.Examination after the grant of exemption from trade remedies

1. Examination after the grant of exemption from trade remedies shall be carried out according to law-prescribed risk management methods for selection of objects, scope and contents of examination for exemption dossiers.

2. Examination after the grant of exemption from trade remedies aims to assess the compliance of organizations and individuals with the law-prescribed conditions on exemption from trade remedies for exemption dossiers.

3. Contents of examination after the grant of exemption from trade remedies include:

a/ Examining and verifying the legal status of organizations and individuals entitled to exemption from trade remedies;

b/ Examining and verifying the accuracy of information on goods eligible for exemption from trade remedies based on exemption dossiers sent to the investigation body;

c/ Examining the completeness, lawfulness and legality of customs dossiers, account books, financial statements, and documents and data related to imported goods eligible for exemption from trade remedies;

d/ Examining the compliance of exemption requesters with the law-prescribed conditions and obligations in the exemption decisions.

Article 18.Carrying out examination after the grant of exemption from trade remedies

1. At the proposal of the investigation body, the Minister of Industry and Trade shall decide on examination after the grant of exemption from trade remedies and form an examination team. The head of the examination team must be a civil servant of the investigation body. The examination team shall carry out examination according to the scope, time and contents stated in the decision on the formation of the examination team.

2. The investigation body shall issue a written notice of the examination decision and plan to organizations and individuals entitled to exemption from trade remedies at least 5 working days before carrying out an examination.

3. In the course of examination, the investigation body may verify information through requesting related or capable organizations and individuals to clarify suspicious or illogical issues or signs of violation. The verification is prescribed below:

a/ Verification subjects include state management agencies and related organizations and individuals;

b/ Forms of verification include sending written requests and asking for written reply; or sending officers to work directly with verification subjects according to letters of introduction of verification requesters;

c/ Verification results shall be recorded in minutes for use as a basis for consideration of the investigation cases.

4. The examined organizations and individuals shall appoint competent representatives and related officers to provide dossiers and documents as required and directly work with the examination team on the contents of examination.

Article 19.Results of examination after grant of exemption from trade remedies

1. Based on the examination result, the examination team shall make an examination record right after finishing the examination at the place of examination and report on the examination result to the examination agency and notify such to the examined organization or individual.

2. Based on the examination result, depending on the severity of violations, the examination team shall propose the examination agency to handle violations and revoke the exemption decision or transfer the files of violations to a competent agency in accordance with law.

3. In case of issuance of an examination conclusion under Clause 2 of this Article, the head of the examination team shall send a draft examination conclusion to the examined organization or individual. Within 5 working days after receiving the draft examination conclusion, the examined organization or individual shall send its/his/her opinions (together with written explanations) if it/he/she disagrees with the draft examination conclusion.

4. Past the time limit specified in Clause 3 of this Article, if the examined organization or individual fails to send its/his/her opinions, it/he/she will be considered agreeing with the draft examination conclusion.

5. After the time limit for collecting opinions, the examination team shall:

a/ Consider the written explanations of the examined organization or individual or work with its/his/her competent representative in case there remain divergent opinions or unclear issues;

b/ Issue an examination conclusion after obtaining opinions of specialized agencies or units, for cases involving specialized and technical requirements or having insufficient grounds for the examination team to make a conclusion.

Article 20.Revocation of exemption decisions

1. The Minister of Industry and Trade shall revoke an exemption decision in the following cases:

a/ Imported goods eligible for exemption from trade remedies are improperly used;

b/ There is a fraud in the request for exemption from trade remedies;

c/ The organization or individual entitled to exemption from trade remedies fails to comply with the regulations, conditions and obligations stated in the exemption decision;

d/ The conditions for exemption from trade remedies no longer exist.

2. Organizations and individuals having exemption decisions revoked shall pay duties in accordance with law.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 21.Responsibilities of the investigation body

1. Before issuing a decision on application of official anti-dumping or countervailing measures, the investigation body shall notify the draft investigation conclusion to the requesting party and requested party and collect opinions thereon.

2. The investigation body shall:

a/ Send the exemption decision to the organization or individual that sends the exemption dossier;

b/ Send the decision revoking the exemption decision to the organization or individual entitled to exemption from trade remedies;

c/ Send the written exemption decision and decision revoking the exemption decision to the Ministry of Finance and the General Department of Customs;

d/ Publish on its website and on the portal of the Ministry of Industry and Trade the exemption decision and decision revoking the exemption decision.

Article 22.Effect

1. This Circular takes effect on June 15, 2018.

2. Any problems arising in the course of implementation of this Circular should be promptly reported to the investigation body and the Ministry of Industry and Trade for consideration and settlement.-

Minister of Industry and Trade
TRAN TUAN ANH

* The appendices to this Circular are not translated.