Circular No. 37/2019/TT-BCT dated November 29, 2019 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 General 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 prescribes in detail 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 involved in 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 characteristics, appearances or quality criteria different from domestically manufactured similar goods or directly competitive goods.

2. Non-confidential information sheet means an information sheet in which the information requested to be kept confidential by the investigation body has been processed, ensuring that the information recipient truly understands the nature of the information without disclosing confidential information.

3. The trade remedies investigation body (below referred to as the investigation body) means the Trade Remedies Authority of Vietnam under the Ministry of Industry and Trade.

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

1. Spoken and written language used in the process of investigation for application of trade remedies is Vietnamese. Related parties may use spoken and written languages of their nations provided that an interpreter is required.

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

Article 5.Responsibility of the investigation body to provide information

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

2. The investigation body shall:

a/ Send exemption decisions to the organizations and individuals that have submitted dossiers of request for exemption;

b/ Send decisions on revocation of exemption decisions to the organizations and individuals entitled to exemption;

c/ Send exemption decisions and decisions on revocation of exemption decisions to the Ministry of Finance;

d/ Publish on its website and on the portal of the Ministry of Industry and Trade exemption decisions and decisions on revocation of exemption decisions.

Article 6.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 or review of a trade remedies case, the organizations and individuals specified in Clause 1, Article 74 of the Law on Foreign Trade Management may register for participation in investigation cases for application of trade remedies in the capacity as related parties.

2. The Ministry of Industry and Trade shall consider and prescribe the time limit for registration of related parties in each investigation case for application of trade remedies which, however, must be at least 60 working days from the effective date of the decision on investigation or review for application of trade remedies.

3. Organizations and individuals shall make registration according to the form of registration of related parties provided in Appendix I to this Circular and send it to the investigation body within the time limit prescribed in the decision on investigation or review for application of trade remedies.

4. Within 7 working days after receiving a request for registration of a related party, except the organizations and individuals specified at Points a, d and dd, Clause 1, Article 74 of the Law on Foreign Trade Management, the investigation body shall certify its approval or disapproval of the requester to be  a related party of the cases. In case of disapproval, the investigation body shall clearly state the reason.

5. In case an organization or individual registers to be a related party after the time limit specified in Clause 2 of this Article, the investigation body may consider approving such organization or individual to be a related party of the case.

6. Organizations and individuals approved of being related parties have the rights and obligations specified 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 (below referred to as Decree No. 10/2018/ND-CP).

Article 7.Import declaration applications

1. Import declaration applications for goods subject to investigation for application of trade remedies prescribed in Article 8 of Decree No. 10/2018/ND-CP in import declaration dossiers shall be made according to the form provided in Appendix II to this Circular.

2. Procedures for import declaration prescribed in Clause 1 of this Article may be carried out online in accordance with law.

Chapter II

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

Article 8.Non-confidential information in investigation cases for application of trade remedies

When requested by related parties, the investigation body shall disclose the following information and documents:

1. Dossiers of request for investigation for application of trade remedies provided by the requesting party, and enclosed appendices;

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

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

4. 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 papers showing opinions on dossiers of request for investigation for application of trade remedies provided by related parties;

5. Minutes of meetings or briefs of contents of public consultation meetings relating to the investigation cases, made by the investigation body;

6. Notices of the investigation body and Ministry of Industry and Trade, including notices of the receipt of dossiers of request for investigation or review for application of trade remedies, initial conclusions, final conclusions, and applications for registration of related parties; and questionnaires, information on public consultation meetings, information on the limit of the scope of model investigation, and approval or disapproval of commitment proposals;

7. Other information relating to the trade remedies investigation cases considered by the investigation body to be non-confidential in the investigation process.

Article 9.Requests for information confidentiality in investigation cases for application of trade remedies

1. The investigation body shall consider and approve requests for confidentiality of information provided by related parties in investigation cases for application of trade remedies. Such information includes:

a/ Business secrets relating to the characteristics of a product or manufacturing process;

b/ Confidential information about production and business activities and financial situation of enterprises, including production expenses; sale expenses; sale terms; sale price of each transaction, expected transaction or another offer; information about customers, distributors and suppliers; and financial information of enterprises;

c/ Information about the dumping margin of each enterprise in the anti-dumping investigation case;

d/ Information about the benefit amount entitled to by the requested party for each subsidy program subject to investigation or review in the countervailing investigation case, except the information describing the operation of the program, the benefit amount written in documents or published; and rate of subsidy for sale transactions which is calculated for every requested party under a program;

dd/ Other information which, as identified by the investigation body, once disclosed, is likely to cause significant harm to the information provider or to the person from whom the information provider collects the information, or to cause significant impacts on the competitive advantages of the information provider.

2. If disapproving a request for information confidentiality, the investigation body shall clearly notify the reason within 45 days after receiving the request.

Chapter III

EXEMPTION FROM TRADE REMEDIES

Section 1

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

Article 10.Scope of exemption from trade remedies

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

1. Goods which cannot be domestically manufactured;

2. Goods with characteristics different from non-substitutable domestically manufactured goods;

3. Goods being special products of domestically manufactured similar goods or directly competitive goods;

4. Domestically manufactured similar goods or directly competitive goods not sold in the domestic market under the same normal conditions;

5. Domestically manufactured similar goods or directly competitive goods not sufficient for domestic use;

6. Imports within the total amount requested for exemption as prescribed in Clauses 1 thru 5 of this Article serving research and development and other non-commercial purposes.

Article 11.Time limit of exemption from trade remedies

1. In the case of exemption from a trade remedy as prescribed at Point a, Clause 1, Article 16 of this Circular, the time limit for exemption must not exceed the time limit for application of such trade remedy.

2. In the case of exemption from a trade remedy as prescribed at Point b, Clause 1, Article 16 of this Circular, the investigation body shall consider the time limit for exemption which must not exceed 18 months counted from the effective date of the decision on application of such trade remedy through December 31 of the current year, or to December 31 of the subsequent year.

3. In the case of exemption from a trade remedy as prescribed at Point c, Clause 1, Article 16 of this Circular, the investigation body shall consider the time limit for exemption which must not exceed 18 months counted from January 1 of the year of receipt of the dossier of request for exemption or from the date of issuance of the exemption decision.

4. For dossiers of request for additional exemption received by the investigation body under Clause 4, Article 16 of this Circular, the time limit for additional exemption shall be calculated based on the effect of the initial exemption decision.

Article 12.Entities requesting exemption from trade remedies

Entities requesting exemption from trade remedies include:

1. Importers of goods subject to investigation for application of trade remedies;

2. Users of goods subject to investigation for application of trade remedies for manufacture;

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

Article 13.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 goods eligible for the exemption prescribed in Article 10 of this Circular on the basis of the investigation body’s reports on appraisal of dossiers of request for exemption. The investigation body shall issue and publicize the process of appraisal of dossiers of request for exemption from trade remedies.

2. In each case, the consideration of goods requested for exemption from trade remedies under Article 10 of this Circular shall be based on one or more than one of the following criteria:

a/ List of goods which cannot be domestically manufactured, investigation conclusions, technical regulations, standards, opinions of related agencies, organizations and business and trade associations, and other relevant technical documents;

b/ Composition; physical properties; chemical properties; standards and technical regulations; and use purposes;

c/ Possibility to domestically manufacture similar goods or directly competitive goods as compared to goods requested for exemption;

d/ Possibility of substitution of domestically manufactured similar goods or directly competitive goods as compared to goods requested for exemption.

3. In each case, the consideration of exemption from trade remedies shall be made in one of the following forms:

a/ Imposing no restrictions on user, use purpose, and volume or quantity of goods eligible for exemption in case it is possible to distinguish the goods requested for exemption from goods currently subject to application of trade remedies;

b/ Imposing restrictions on volume or quantity of goods eligible for exemption, and purposes of exemption.

4. The Ministry of Industry and Trade shall consider not granting exemption from trade remedies in case such exemption is likely to cause frauds aiming to shirk the application of trade remedies.

Section 2

RECEIPT AND PROCESSING OF DOSSIERS OF REQUEST FOR EXEMPTION

Article 14.Dossier of request for exemption from trade remedies

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

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

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

c/ Information describing imports requested for exemption, including scientific names, trade names and common names; basic physical and chemical properties; main use purpose; manufacturing process; applicable international and Vietnamese standards and technical regulations; and goods headings according to Vietnam’s Exports and Imports Classification Nomenclature;

d/ Information about the volume or quantity and import value of the goods requested for exemption (of the latest 3 years and current year);

dd/ Manufacturing process of products with the use of input materials being the goods requested for exemption;

e/ Demand for consumption or use of the imports requested for exemption (of the latest 3 years and current year);

g/ Shrinkage norms as prescribed by law or expected use norms of materials being the imports requested for exemption;

h/ Documents or samples proving the disparity between the goods requested for exemption and domestically manufactured similar goods or directly competitive goods;

i/ Information about the manufacturer and manufacturing line and output of the goods requested for exemption of the latest 3 years and current year;

k/ Documents proving the demand for use of the goods requested for exemption, including contracts signed with customers, documents approving ongoing projects or other relevant documents.

2. In case organizations and individuals submit a dossier of request for additional exemption to the investigation body under Clause 4, Article 16 of this Circular, such dossier must comprise:

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

b/ A copy of the slip for monitoring the volume of exemption-eligible imports, issued by the customs office;

c/ An output-input-inventory report for exemption-eligible products;

d/ A report on the manufacture of goods with the use of exemption-eligible goods as input materials;

dd/ Manufacturing plan for the subsequent period, contracts already signed and to be performed, or other necessary information and documents.

3. Based on the requester’s dossier of request for exemption or dossier of request for additional exemption, the investigation body shall appraise the dossier and send a report to the Minister of Industry and Trade for the latter to consider issuing a decision on exemption from trade remedies or decision on additional exemption from trade remedies.

Article 15.Submission and monitoring of dossiers of request for exemption

1. The receipt and processing of dossiers of request for exemption from trade remedies, dossiers of request for additional exemption from trade remedies, and import declaration dossiers for goods subject to investigation for application of trade remedies shall be carried out on the online public service portal in accordance with law.

2. Organizations and individuals shall send dossiers and documents and monitor the processing of dossiers via their registered emails or granted system access accounts in order to update and modify information at the request of the investigation body.

3. In case organizations and individuals wish to submit relevant samples of products enclosed with dossiers and documents of request for exemption from trade remedies, they shall submit such samples directly to the investigation body or by post.

Article 16.Notification of receipt of dossiers of request for exemption

1. The investigation body shall notify the receipt of dossiers of request for exemption:

a/ After the Ministry of Industry and Trade issues a decision on application of provisional trade remedies;

b/ After the Ministry of Industry and Trade issues a decision on application of official trade remedies;

c/ In March and September every year.

2. In case of any change in trade remedies, the investigation body shall promptly notify such change to the exemption requesters for the latter to prepare appropriate business plans.

3. Within 30 days after the investigation body notifies the receipt of dossiers of request for exemption, the exemption requesters shall send a dossier of request for exemption prescribed in Article 14 of this Circular to the investigation body, except the case specified in Clause 4 of this Article, or other cases as decided by the Ministry of Industry and Trade.

4. In case the organizations or individuals entitled to exemption from trade remedies request additional exemption from trade remedies, they shall send dossiers of request for additional exemption to the investigation body.

5. Within 15 working days after receiving the investigation body’s request for addition of information, the exemption requesters shall provide adequate and truthful information as required.

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

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

2. Information describing the imports eligible for exemption from trade remedies;

3. Volume or quantity of the imports eligible for exemption from trade remedies;

4. Exemption period, conditions for and obligations of the organizations and individuals entitled to exemption from trade remedies.

Article 18.Customs procedures and inspection for exemption-eligible goods

1. Goods eligible for exemption from trade remedies are subject to customs procedures and inspection and supervision by customs offices in accordance with the customs law.

2. When carrying out customs procedures, in addition to the customs dossier as prescribed, importers shall submit a copy of the decision on exemption from trade remedies to customs offices.

3. Customs offices shall manage and monitor the quantity of imports/exports on the basis of the quantity of goods eligible for exemption from trade remedies as stated in the exemption decision. The monitoring of the quantity of imports/exports must comply with the customs law.

Article 19.Refund of trade remedies duty for goods eligible for exemption from trade remedies

1. In case imports are eligible for exemption from trade remedies, the importers shall be entitled to refund of the paid trade remedies duty amounts for the imports lots with customs declarations registered within the exemption period stated in the exemption decision.

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

Article 20.Periodical reports

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

Article 21.Disposal of scraps, discarded products and surplus materials and supplies

1. Scraps, discarded products and surplus materials and supplies within the limit prescribed at Point g, Clause 1, Article 14 of this Circular may be sold or consumed in the inland without being subject to trade remedies duty.

2. When being sold or consumed in the inland, scraps, discarded products and surplus materials and supplies beyond the limit prescribed at Point g, Clause 1, Article 14 of this Circular are subject to trade remedies duty under current regulations.

Section 3

INSPECTION, EXAMINATION, AND REVOCATION OF DECISIONS ON EXEMPTION FROM TRADE REMEDIES

Article 22.Inspection after grant of exemption from trade remedies

1. A team for inspection after grant of exemption from trade remedies shall be formed to conduct an inspection according to the scope, objects, contents, tasks and time limit stated in the decision on inspection after grant of exemption from trade remedies. Such inspection team shall be composed of the head and members and inspection officers; when necessary, it may have a deputy head.

2. The head of an inspection team shall be assigned to conduct specialized inspection and must fully meet the criteria prescribed by the law on specialized inspection. He/she shall perform the tasks and exercise the powers under the regulations on inspection and specialized inspection, and take responsibility before law and the inspection decision issuer for performance of the inspection tasks.

3. Specialized inspection officers must meet the law-prescribed criteria for specialized industry and trade inspection officers.

4. The order and procedures for, and forms of records used in, the process of inspection after grant of exemption from trade remedies must comply with the regulations on inspection and specialized industry and trade inspection.

Article 23.Examination after grant of exemption from trade remedies

1. The examination after grant of exemption from trade remedies shall be conducted according to the risk management method in accordance with law in order to select the objects, scope and contents of examination for organizations and individuals entitled to the exemption.

2. Examination after grant of exemption from trade remedies aims to verify and appraise the observance by organizations and individuals of conditions and regulations on exemption from trade remedies for dossiers of request for exemption.

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

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

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

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

d/ Examining the observance of conditions and obligations by the exemption requesters as stated in exemption decisions;

dd/ Examining and verifying norms of material use, supplies shrinkage and surplus materials and supplies for goods eligible for exemption;

e/ Examining and verifying the rate of scraps of goods eligible for exemption.

Article 24.Conducting examination after grant of exemption from trade remedies

1. Based on the investigation body’s request, the Minister of Industry and Trade shall decide on examination after 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 conduct examination according to the scope, time and contents stated in the decision to form the examination team.

2. The investigation body shall notify in writing a plan and decision on examination after grant of exemption from trade remedies to the organization or individual entitled to exemption in accordance with law and examination regulations before conducting the examination.

3. In the course of conducting examination after grant of exemption from trade remedies, the investigation body has the competence to collect documents and verify information through requesting related organizations and individuals or those capable of assisting the former to clarify suspicious and irrational issues or signs of violation. Document collection and information verification cover:

a/ Requesting state management agencies and competent or related organizations and individuals to coordinate with one another in document collection and information verification activities;

b/ Conducting verification by sending written requests and asking for written replies; or assigning persons to work directly with related agencies, organizations and individuals as introduced by verification requesters;

c/ Recording verification results in working minutes, replies in official letters, and accompanying dossiers, documents and exhibits. Verification results serve as a basis for consideration of relevant cases.

4. Organizations and individuals subject to examination shall assign competent representatives and related officers to provide dossiers and documents as required and directly work with the examination team on the examination contents.

Article 25.Results of examination after grant of exemption from trade remedies

1. Based on examination results, the examination team shall make a minutes right after completing the examination at the place of examination and report examination results to the examination decision issuer and notify such to the examined organization or individual.

2. Based on examination results and depending on the severity of violations, the examination team shall propose the examination body to handle violations and revoke the exemption decision or carry out procedures for transferring files of the violations to a competent agency in accordance with law.

3. In case of issuing an examination conclusion under Clause 2 of this Article, the head of the examination team shall send the draft examination conclusion to the examined organization or individual. Within 5 working days after receiving the draft conclusion, the examined organization or individual shall send its/his/her opinions (enclosed with written explanations and supporting documents) if disagreeing with the draft conclusion.

4. Past the time limit specified in Clause 3 of this Article, if the examined organization or individual does not send its/his/her opinions, it/he/she shall be regarded as 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 the latter’s competent representative if there remain issues involving divergent or unclear opinions;

b/ For cases which involve professional and technical requirements or in which the examination team has insufficient grounds for making a conclusion, it shall issue an examination conclusion after obtaining opinions of specialized agencies and units.

Article 26.Revocation of exemption decisions

1. The Minister of Industry and Trade shall revoke a decision on exemption from trade remedies in case the organization or individual entitled to exemption commits one of the following acts:

a/ Failing to comply with the exemption decision;

b/ Providing untruthful, inadequate or inaccurate information or forging data, dossiers and documents related to the manufacture of and trading in exemption-eligible products;

c/ Failing to perform the obligation to make periodical reports under Article 20 of this Circular.

2. The Ministry of Industry and Trade shall coordinate with customs offices in handling organizations and individuals that have decisions on exemption from trade remedies revoked, and request retrospective collection and payment of taxes in accordance with law.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 27.Effect

1. This Circular replaces the Minister of Industry and Trade’s Circular No. 06/2018/TT-BCT of April 20, 2018, and takes effect on January 15, 2020.

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.

Article 28.Transitional provision

Trade remedies cases with dossiers for investigation or dossiers of request for exemption from trade remedies received before the effective date of this Circular shall be considered and settled in accordance with Circular No. 06/2018/TT-BCT of April 20, 2018.-

Minister of Industry and Trade
TRAN TUAN ANH

* The appendices to this Circular are not translated.