Circular 07/2022/TT-BCT guiding the implementation of trade remedies in the Regional Comprehensive Economic Partnership

CIRCULAR

Guiding the implementation of trade remedies under the Regional Comprehensive Economic Partnership Agreement^[1]

Pursuant to June 12, 2017 Law No. 05/2017/QH14 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;

In furtherance of the Regional Comprehensive Economic Partnership Agreement (below referred to as RCEP Agreement),

At the proposal of the Director General of the Trade Remedies Authority of Vietnam,

The Minister of Industry and Trade promulgates the Circular guiding the implementation of trade remedies under the RCEP Agreement.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular guides the application of transitional RCEP safeguard measures, anti-dumping measures, and countervailing measures under the RCEP Agreement.

2. The provisions specified in this Circular are applicable to originating goods imported from Member Countries of the RCEP Agreement.

Article 2. Subjects of application

1. Vietnamese state management agencies that are competent to investigate, apply and handle trade remedies under the RCEP Agreement.

2. Domestic and foreign traders, agencies, organizations and individuals involved in the investigation, application and handling of trade remedies under the RCEP Agreement.

Article 3. Interpretation of terms

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

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

2. Member Country mean any of the Member Countries of the RCEP Agreement.

3. Transitional RCEP safeguard measures mean safeguard measures specified in Article 7.2 of the RCEP Agreement and Article 99 of the Law on Foreign Trade Management.

4. Transitional period means a period of time from the date the RCEP Agreement comes into force until 8 years after the date on which the elimination or reduction of customs duties for each commodity item under Vietnam’s Schedule of Tariff Commitments in the RCEP Agreement is completed.

5. Domestic industry in the investigation and application of transitional RCEP safeguard measures means the producers as a whole of the like or directly competitive goods within Vietnam’s territory or their representatives whose collective output constitutes a major proportion of the total domestic production of such industry. The determination of the major proportion of a domestic industry’s representatives must comply with Clause 2, Article 4 of Decree No. 10/2018/ND-CP.

6. Investigation body is the Trade Remedies Authority of Vietnam - the Ministry of Industry and Trade.

7. Related parties in a trade remedy investigation case against originating goods imported from Member Countries of the RCEP Agreement include:

a/ Producers and exporters of the goods subject to investigation into Vietnam’s territory;

b/ Importers of the goods subject to investigation;

c/ Associations with a majority of their members being producers and exporters of the goods subject to investigation;

d/ The governments and competent authorities of the exporting Member Countries of the goods subject to investigation;

dd/ Those filing a dossier of request for application of transitional RCEP safeguard measures or a dossier of request for application of anti-dumping measures or countervailing measures against the goods imported from Member Countries of the RCEP Agreement.

e/ Domestic producers of the like or directly competitive goods;

g/ Vietnam’s domestic associations with a majority of their members being producers of the like or directly competitive goods;

h/ Other persons that have lawful rights and interests related to the investigation case or can assist in the investigation process or consumers’ representative organizations.

Chapter II

ANTI-DUMPING MEASURES AND COUNTERVAILING MEASURES

Article 4. Notification

1. The investigation body shall notify at least 7 days in advance to related parties of  the intent and topics of the on-the-spot investigation to be conducted to verify the information provided by the related parties, provided that the notification does not affect the investigation time limit under regulations.

2. The investigation body shall send to the Member Country subject to the investigation a written notice on the receipt of a dossier of request for initiation of an anti-dumping investigation at least 7 days before the Minister of Industry and Trade decides to initiate an investigation for imposition of anti-dumping measures.

3. The investigation body shall send to the Member Country subject to the investigation a written notice on the receipt of a dossier of request for initiation of a countervailing investigation at least 20 days before the Minister of Industry and Trade decides to initiate an investigation for application of countervailing measures. When requested by the Government of a related Member Country, the investigation body shall provide a non-confidential copy of the dossier of request for initiation of a countervailing investigation.

Article 5. Methods for calculation of dumping margins

When calculating the dumping margin of a foreign producer or importer as specified at Points a and b, Clause 2, Article 20 of Decree No. 10/2018/ND-CP, the investigation body shall aggregate all separate margins, regardless of whether they are positive or negative, into the general margin. This regulation does not limit the investigation body’s powers in calculation of dumping margins as specified at Point c, Clause 2, Article 20 of Decree No. 10/2018/ND-CP.

Article 6. Disclosure of essential facts

1. At least 10 days before the final determination, the investigation body shall disclose in writing essential facts of the final draft investigation conclusion. Related parties may give their opinions within the time limits specified in Clause 1, Article 9 of Decree No. 10/2018/ND-CP. The investigation body shall consider and give feedback on the related parties’ opinions in the final investigation conclusion of the case.

2. Essential facts include facts which form the basis for the decision to apply trade remedies in accordance with regulations on confidential information under current laws.

Article 7. Treatment of confidential information

Related parties, when providing confidential information to the investigation body, must provide non-confidential summaries of such confidential information as prescribed in Article 11 of Decree No. 10/2018/ND-CP.

Chapter III

TRANSITIONAL RCEP SAFEGUARD MEASURES

Article 8. Principles of application of transitional RCEP safeguard measures

1. No transitional RCEP safeguard measures shall be applied concurrently with a safeguard measure specified in Article 91 of the Law on Foreign Trade Management against an imported goods item eligible for special preferential import duty rate under the RCEP Agreement.

2. Transitional RCEP safeguard measures shall not be applied beyond the transitional period.

Article 9. Bases for investigation

1. The investigation for application of transitional RCEP safeguard measures against an imported goods item shall be conducted upon receipt of a dossier of request for application of transitional RCEP safeguard measures submitted by domestic producers of the like or directly competitive goods of the imported goods concerned and a dossier of evidences of the serious injury or threat of serious injury caused to the domestic industry by excessive import of the goods from another Member Country or Member Countries

2. Based on the investigation body’s proposal, the Minister of Industry and Trade shall decide to initiate an inestigation for application of transitional RCEP safeguard measures when there are clear evidences of the serious injury or threat of serious injury caused to the domestic industry by excessive import of the goods from another Member Country or Member Countries. 

Article 10. Dossiers of request for application of transitional RCEP safeguard measures

1. A dossier of request for application of transitional RCEP safeguard measures (referred to as dossier of request in this Chapter) must comprise a written request for application of transitional RCEP safeguard measures and relevant papers and documents specified in Article 47 of Decree No. 10/2018/ND-CP.

2. A written request for application of transitional RCEP safeguard measures specified in Clause 2, Article 47 of Decree No. 10/2018/ND-CP must have the following details:

a/ Name, address and other essential information of the representative of the concerned domestic industry;

b/ Information, data and evidences for determining the representation of the domestic industry, including a list of domestic producers of the like or directly competitive goods and the volume or quantity of the like or directly competitive goods they produce;

c/ Names and addresses of producers of the like goods that support or oppose the case;

d/ Descriptions of the imported goods eligible for special preferential import duty rates under the RCEP Agreement to be subject to investigation for application of transitional RCEP safeguard measures, including its scientific name, trade name and common name; composition; basic physical and chemical characteristics; main usages; process of production; relevant international and Vietnamese standards and regulations; and heading and special preferential import duty rate specified in the Special Preferential Import Tariff to implement the RCEP Agreement;

dd/ Descriptions of the like or directly competitive goods of the domestic industry, including their scientific names, trade names and common names; basic physical and chemical characteristics; main usages; process of production; and relevant international and Vietnamese standards and technical regulations;

e/ Information on the volume or quantity and value of imported goods specified at Point d of this Clause in 3 years prior to dossier submission, inclusive of a period of at least 6 months after the RCEP Agreement comes into force. The customs value of imported goods must comply with the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade (GATT 1994);

g/ Information on the volume or quantity and value of the like or directly competitive goods of the domestic industry specified at Point dd of this Clause in  3 years prior to dossier submission, inclusive of a period of at least 6 months after the RCEP Agreement comes into force. In case the domestic industry has been in operation for less than 3 years, the data collection period shall be the entire operation duration of the domestic industry up to the time of dossier submission;

h/ Information, data and evidence on the serious injury or threat of serious injury to the domestic industry;

i/ Information, data and evidence on the causal relationship between the import of the goods specified at Point d of this Clause and the serious injury or threat of serious injury to the domestic industry;

k/ Specific requirements on the application of transitional RCEP safeguard measures, duration and extent of application.

Article 11. Procedures and order of investigation

1. The investigation for application of transitional RCEP safeguard measures must comply with Article 70 of the Law on Foreign Trade Management, and Section 1, Chapter III of Decree No. 10/2018/ND-CP.

2. The time limit for investigation for application of transitional RCEP safeguard measures is 1 year from the date the investigation decision is issued.

3. Based on the investigation body’s proposal, the Minister of Industry and Trade shall decide to apply a transitional RCEP safeguard measure when the investigation conclusion shows that:

a/ There is an increase in the volume or quantity of the imported goods eligible for the special preferential import duty rate under the RCEP Agreement in absolute terms or relative to domestic production of the like or directly competitive goods;

b/ The domestic industry suffers serious injury or threat of serious injury;

c/ The increased import specified at Point a of this Clause is the cause of the serious injury or threat of serious injury to the domestic industry.

Article 12. Application of transitional RCEP safeguard measures

1. When necessary, on the basis of the initial investigation conclusion, the Minister of Industry and trade shall decide to apply temporary transitional RCEP safeguard measures. The application of temporary transitional RCEP safeguard measures must comply with Clause 1, Article 95 of the Law on Foreign Trade Management and Article 52 of Decree No. 10/2018/ND-CP.

2. Permissible temporary transitional RCEP safeguard measures and transitional RCEP safeguard measures include:

a/ Suspending the further reduction of any import duty rate under the RCEP Agreement; or,

b/ Applying safeguard duty in the form of additional import duty for the goods subject to investigation. The aggregate import duty rate under Vietnam’ Special Preferential Import Tariff to implement the RCEP Agreement and safeguard duty rate must not exceed the lesser of the applicable preferential import duty rate in effect at the time the measure is applied or the applicable preferential import duty rate in effect on the day immediately preceding the day the RCEP Agreement comes into force.

3. The duration of application of a transitional RCEP safeguard measure must not exceed 3 years, inclusive of the duration of application of a temporary transitional RCEP safeguard measure.

4. In case the duration of application of a transitional RCEP safeguard measure, inclusive of the duration of application of a temporary transitional RCEP safeguard measure, is longer than 1 year, the extent of application of the transitional RCEP safeguard measure must be progressively liberated.

5. A transitional RCEP safeguard measure may be extended for at most 1 year based on the result of the sunset review. The order and procedures for the sunset review of a transitional RCEP safeguard measure must comply with Clause 2, Article 96 of the Law on Foreign Trade Management and Article 69 of Decree No. 10/2018/ND-CP.

6. After the duration of application of a transitional RCEP safeguard measure expires, the import duty rate applicable to the concerned goods must comply with Vietnam’ Special Preferential Import Tariff to implement the RCEP Agreement in effect at the time of termination of the application of such transitional RCEP safeguard measure.

7. Temporary transitional RCEP safeguard measures and transitional RCEP safeguard measures shall not apply to originating goods of a Member Country if the following conditions are met:

a/ The market share of imports of the concerned originating goods of that Member Country in terms of volume or quantity does not exceed 3% of the total imports of that goods from all Member Countries;

b/ The total market share of imports of the concerned originating goods of the  Member Countries satisfying the condition specified at Point a of this Clause in terms of volume or quantity does not exceed 9% of the total imports of that goods from all Member Countries.

8. Temporary transitional RCEP safeguard measures and transitional RCEP safeguard measures shall not apply to originating goods of Least Developed Countries. The determination of a List of Least Developed Countries must comply with Clause 2, Article 15 of Decree No. 10/2018/ND-CP and the RCEP Agreement.

9. No transitional RCEP safeguard measures shall be applied to the import of an originating good for a period of 1 year from the date on which the first tariff reduction or tariff elimination takes effect for that originating good as committed under the 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 for 1 year since the expiry of such measure, whichever is longer.

Article 13. Notification and consultation

1. The investigation body shall notify in writing to Member Countries when:

a/ The Minister of Industry and Trade decides to initiate an investigation for application of transitional RCP safeguard measures;

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

c/ The investigation body issues a draft initial investigation conclusion or draft final investigation conclusion;

d/ The Minister of Industry and Trade decides to apply temporary transitional RCEP safeguard measures; or to apply or extend of the duration of application of transitional RCEP safeguard measures;

dd/ The Minister of Industry and Trade decides to revise the application of temporary transitional RCEP safeguard measures or revise the application or extension of the duration of application of transitional RCEP safeguard measures.

2. A written notice specified at Point a, Clause 1 of this Article must comprise:

a/ Descriptions of the imported goods eligible for special preferential import duty rate under the RCEP Agreement which is subject to investigation for application of a transitional RCEP safeguard measure, including its name, goods heading and applicable special preferential import duty rate specified in the Special Preferential Import Tariff to implement the RCEP Agreement;

b/ A summary of the reasons for the Minister of Industry and Trade’s decision to initiate an investigation;

c/ The date the Minister of Industry and Trade decides to initiate an investigation and the period of investigation.

3. A written notice specified at Point c or d, Clause 1 of this Article must comprise:

a/ Descriptions of  the imported goods eligible for special preferential import duty rate under the RCEP Agreement which is subject to investigation for application of a transitional RCEP safeguard measure, including its name, heading and applicable special preferential import duty rate specified in the Special Preferential Import Tariff to implement the RCEP Agreement;

b/ Evidences of the serious injury or threat of serious injury caused by increased  import of the originating goods of another Member Country or Member Countries as a result of the reduction or elimination of a customs duty pursuant to the RCEP Agreement;

c/ Descriptions of the temporary transitional RCEP safeguard measure or transitional RCEP safeguard measure proposed for application;

d/ The proposed date of application of the temporary transitional RCEP safeguard measure or transitional RCEP safeguard measure, its expected duration, and a timetable for the progressive liberalization of the transitional RCEP safeguard measure;

dd/ Evidences of the domestic industry’s adaptation, in case the Minister of Industry and Trade decides to extend the duration of  application of the transitional RCEP safeguard measure.

4. A written notice specified at Point dd, Clause 1 of this Article must comprise:

a/ Descriptions of the imported goods eligible for special preferential import duty rate under the RCEP Agreement which is subject to investigation for application of a transitional RCEP safeguard measure, including its name, heading and  applicable special preferential import duty rate specified in the Special Preferential Import Tariff to implement the RCEP Agreement;

b/ Amendments and supplementations to the application of the temporary transitional RCEP  safeguard measure or to the application or extension of the duration of application of the transitional RCEP safeguard measure.

5. The investigation body shall notify in writing to Member Countries of the RCEP Agreement before the Minister of Industry and Trade decides to apply a temporary transitional RCEP safeguard measure.

6. The investigation body shall provide to Member Countries duplicates, or the website address posting non-confidential copies, of reports on investigation cases. These reports shall be provided in Vietnamese.

7. The consultations at the request of related parties in the course of investigation for application, or consideration for extension of the duration of application of transitional RCEP safeguard measures must comply with Clause 1, Article 13 of Decree No. 10/2018/ND-CP.

Article 14. Compensation

1. The procedures for compensation when Vietnam conducts investigation, applies or extends the duration of application of transitional RCEP safeguard measures must comply with Article 7.7 of the RCEP Agreement.

2. The competence for carrying out procedures for compensation must comply with Clause 3, Article 98 of the Law on Foreign Trade Management.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 15. Effect

This Circular takes effect on May 8, 2022.-

Minister of Industry and Trade
NGUYEN HONG DIEN