MINISTRY OF
INDUSTRY AND TRADE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.:
07/2022/TT-BCT
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Hanoi, March 23,
2022
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CIRCULAR
PROVIDING
GUIDANCE ON TRADE REMEDIES UNDER THE REGIONAL COMPREHENSIVE ECONOMIC
PARTNERSHIP AGREEMENT
Pursuant to the Law on Foreign Trade Management
No. 05/2017/QH14 dated June 12, 2017;
Pursuant to the Government’s Decree No.
10/2018/ND-CP dated January 15, 2018 on guidelines for the Law on Foreign Trade
Management regarding trade remedies;
Pursuant to the Government’s Decree No.
98/2017/ND-CP dated August 18, 2017 defining the Functions, Tasks, Powers and
Organizational Structure of the Ministry of Industry and Trade;
For the purposes of the Regional Comprehensive
Economic Partnership (RCEP);
At the request of the Director of the Trade
Remedies Authority of Vietnam;
The Minister of Industry and Trade promulgates a
Circular providing guidance on trade remedies under the Regional Comprehensive
Economic Partnership Agreement.
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GENERAL PROVISIONS
Article 1. Scope
1. This Circular provides
guidelines for application of transitional RCEP safeguard measures, anti-dumping
and countervailing duties under the Regional Comprehensive Economic Partnership
Agreement.
2. Regulations herein apply to
imported goods originating in the Parties of the Regional Comprehensive
Economic Partnership Agreement.
Article 2. Regulated entities
1. Vietnamese regulatory
authorities that have jurisdiction to conduct investigation, apply and deal
with trade remedies under the Regional Comprehensive Economic Partnership
Agreement.
2. Domestic and foreign
traders, authorities, organizations and individuals involved in the
investigation, imposition and handling of trade remedies under the Regional
Comprehensive Economic Partnership Agreement.
Article 3. Definitions
For the purposes of this Circular, the terms below
shall be construed as follows:
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2. “Party” means
any member State of the RCEP Agreement.
3. “transitional RCEP
safeguard measure” means a safeguard measure described in Article 7.2 of the
RCEP Agreement and in Article 99 of the Law on Foreign Trade Management.
4. “transitional safeguard
period” means the period from the date of entry into force of the RCEP
Agreement until 08 years after the date on which the elimination or reduction
of the customs duty on that good is completed in accordance with Vietnam’s
Schedule of tariff commitments in the RCEP Agreement.
5. “domestic industry” means,
with respect to investigation and application of transitional RCEP safeguard
measure, the producers as a whole of the like or directly competitive goods
operating within the territory of Vietnam, or those producers whose collective
output of the like or directly competitive goods constitutes a major proportion
of the total domestic production of that good. The major proportion of the
total domestic production shall be determined in accordance with the provisions
of Clause 2 Article 4 of the Decree No. 10/2018/ND-CP .
6. “investigating authority”
means the Trade Remedies Authority of Vietnam affiliated to the Ministry of
Industry and Trade.
7. Interested parties in a
trade remedy investigation into imported goods originating in a Party of the
RCEP Agreement include:
a) The producer or exporter whose good is imported
into the territory of Vietnam and subject to the investigation;
b) The importer of a good subject to investigation;
c) The trade or business association a majority of
the members of which are producers or exporters of a good subject to
investigation;
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dd) The applicant for imposition of transitional
RCEP safeguard measure or anti-dumping or countervailing duty on goods imported
from a Party of the RCEP Agreement;
e) The producer of the domestic like or directly
competitive product;
g) The trade or business association of Vietnam a
majority of the members of which produce the domestic like or directly
competitive good;
h) Such other person or organization that has
legitimate rights and interests related to or useful for the investigation or
consumer organizations.
Chapter II
ANTI-DUMPING AND
COUNTERVAILING MEASURES
Article 4. Notification
1. The investigating authority
shall provide to the interested parties at least 07 days advance notice of an
on-the-spot investigation schedule and contents to verify the information
provided by such interested parties, provided that the conduct of notification
does not unnecessarily delay the conduct of the investigation.
2. The investigating authority
shall provide written notice to the Party whose originating good is subject to
the investigation of its receipt of the application for anti-dumping
investigation at least 07 days before the Minister of Industry and Trade issues
the decision to initiate such anti-dumping investigation.
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Article 5. Methods for
calculation of dumping margins
When margins of dumping are calculated under Point
a and Point b Clause 2 Article 20 of the Decree No. 10/2018/ND-CP , all
individual margins, whether positive or negative, shall be counted for the
margin of each foreign producer or exporter. Nothing in this Article shall
prejudice or affect the investigating authority’s rights to calculate the
dumping margins under Point c Clause 2 Article 20 of the Decree No.
10/2018/ND-CP .
Article 6. Disclosure of essential
facts
1. At least 10 days before the
final determination, the investigating authority shall ensure written
disclosure of all essential facts included in the draft final determination.
Interested parties are entitled to provide their comments within the time limit
specified in Clause 1 Article 9 of the Decree No. 10/2018/ND-CP. The
investigating authority shall take into account such comments in their final
determination.
2. Essential facts are those
facts under consideration which form the basis for the decision to apply trade
remedies in accordance with regulations on information confidentiality in
force.
Article 7. Treatment of
confidential information
When providing confidential information to the
investigating authority, interested parties are required to furnish
non-confidential summaries of such information as prescribed in Article 11 of
the Decree No. 10/2018/ND-CP .
Chapter III
TRANSITIONAL RCEP
SAFEGUARD MEASURES
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1. A transitional RCEP
safeguard measure and a safeguard measure under Article 91 of the Law on
Foreign Trade Management shall not be applied, at the same time, to the same
good eligible for the most-favoured-nation customs duty rate under the RCEP
Agreement.
2. A transitional RCEP
safeguard measure shall not be applied beyond the expiration of the
transitional safeguard period.
Article 9. Grounds for
investigation
1. The investigation for
application of transitional RCEP safeguard measure shall be initiated upon
receipt of the application for transitional RCEP safeguard measure from the
domestic producers of a like or directly competitive good. The application
shall include the evidence that imports of an originating good from Parties to
Vietnam have increased and caused or are threatening to cause serious injury to
a domestic industry.
2. At the request of the
investigating authority, the Minister of Industry and Trade shall issue a
decision to apply the transitional RCEP safeguard measure in case there is clear
evidence that imports of an originating good from Parties to Vietnam have
increased and caused or are threatening to cause serious injury to a domestic
industry.
Article 10. Application for
imposition of transitional RCEP safeguard measures
1. An application for
imposition of a transitional RCEP safeguard measure (referred to as
“Application” in this Chapter) includes the application form for imposition of
the transitional RCEP safeguard measure and relevant documents specified in
Article 47 of Decree No. 10/2018/ND-CP.
2. The application form for
imposition of the transitional RCEP safeguard measure shall be made according
to Clause 2 Article 47 of the Decree No. 10/2018/ND-CP must include the
following information:
a) Name, address and other necessary information of
the representative of the domestic industry;
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c) Name, address of producers of the like good
supporting or opposing the case;
d) Description of the imported good eligible for
the at the most-favoured-nation rate of customs duty under the RCEP Agreement
and subject to the investigation for imposition of the transitional RCEP
safeguard measure, including scientific name, commercial name, common name,
composition, physical and chemical properties, main uses, production process,
applied international and Vietnamese standards and/or regulations, HS code and
the at the most-favoured-nation rate of customs duty in effect as specified in
the special preferential import tariff schedule for implementation of the RCEP
Agreement;
dd) Description of the like or directly competitive
good of the domestic industry, including scientific name, commercial name,
common name, physical and chemical properties, main uses, production process,
applied international and Vietnamese standards and/or regulations;
e) Information relating to amounts, quantities and
values of the imported good as prescribed in Point d of this Clause within the
03-year period before submitting the application, including at least 06 months
after the RCEP Agreement comes into force; The customs value of the imported
good shall be calculated in accordance with the Agreement on Implementation of
Article VII of GATT 1994.
g) Information relating to amounts, quantities and
values of the like or directly competitive good produced by the domestic
industry as prescribed in Point dd of this Clause within the 03-year period
before submitting the application, including at least 06 months after the RCEP
Agreement comes into force. If the operating duration of the domestic industry
is less than 03 years, the submitted data shall include the entire operating
duration of the domestic industry by the time of submission of the Application;
h) Information, figures and evidences about the
serious injury or threat of serious injury to the domestic industry;
i) Information, figures and evidences about the
causal link between the imported product prescribed in Point d of this Clause
and the serious injury or threat of serious injury to the domestic industry;
k) Specific requests for application of the
transitional RCEP safeguard measure, duration and level of the safeguard
measure.
Article 11. Investigation
procedures
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2. The investigation for
application of a transitional RCEP safeguard measure must be completed within
the maximum duration of 01 year following the issue date of the decision to
initiate the investigation.
3. At the request of the
investigating authority, the Minister of Industry and Trade shall decide to
apply the transitional RCEP safeguard measure when the final determination given
by the investigating authority contains the following findings:
a) There is an absolute or relative increase in
amounts or quantities of imported good benefiting from the at the
most-favoured-nation rate of customs duty under the RCEP Agreement, compared to
those of the like and directly competitive good domestically produced;
b) The domestic industry suffers from serious
injury or threat of serious injury;
c) The serious injury or threat of serious injury
incurred by the domestic industry is caused by the increased imports as set out
in Point a of this Clause.
Article 12. Application of a
transitional RCEP safeguard measure
1. Where necessary, on the
basis of preliminary determination, the Minister of Industry and Trade shall
decide to apply the provisional transitional RCEP safeguard measure. The
application of the provisional transitional RCEP safeguard measure shall comply
with Clause 1 Article 95 of the Law on Foreign Trade Management and Article 52
of the Decree No. 10/2018/ND-CP .
2. The provisional
transitional RCEP safeguard measures and transitional RCEP safeguard measures
to be applied include:
a) Suspend the further reduction of any rate of
customs duty provided for in the RCEP Agreement on the imported good; or
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3. The transitional RCEP
safeguard measure shall be applied for a period not exceeding 03 years,
including the period of application of a provisional transitional RCEP
safeguard measure.
4. In case the period of
application of the transitional RCEP safeguard measure, including the period of
application of the provisional transitional RCEP safeguard measure, exceeds 01
year, the transitional RCEP safeguard measure may be progressively liberalized.
5. The application of the
transitional RCEP safeguard measure may be extended by up to 01 year on the
basis of expiry review results. The procedures for expiry review of the
transitional RCEP safeguard measure shall comply with Clause 2 Article 96 of
the Law on Foreign Trade Management and Article 69 of the Decree No.
10/2018/ND-CP .
6. On the termination of the
transitional RCEP safeguard measure, the rate of customs duty shall be imposed
on the relevant good according to Vietnam’s special preferential import tariff
schedule for implementation of the RCEP Agreement in effect at the time of
termination of such transitional RCEP safeguard measure.
7. A provisional transitional
RCEP safeguard measure or transitional RCEP safeguard measure shall not be
applied to an originating good of a Party if meeting the following conditions:
a) The share of imports of the good concerned from
that Party, in terms of amounts or quantities, does not exceed 3% of the total
imports of that good from all the Parties;
b) Total share of imports of the good concerned
from the Parties specified in Point a of this Clause, in terms of amounts or
quantities, does not exceed 9% of the total imports of that good from all the
Parties.
8. A provisional transitional
RCEP safeguard measure or transitional RCEP safeguard measure shall not be
applied to an originating good of any least developed country party. The list
of least developed country parties shall be compiled according to Clause 2
Article 15 of the Decree No. 10/2018/ND-CP and the RCEP Agreement.
9. No transitional RCEP
safeguard measure shall be applied to the import of an originating good for a
period of 01 year from the date on which the first tariff reduction or tariff
elimination takes effect for that originating good as committed under the RCEP
Agreement.
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Article 13. Notification and
consultations
1. The investigating authority
shall provide written notice to the other Party in the following circumstances:
a) The Minister of Industry and Trade decides to
apply the transitional RCEP safeguard measure;
b) The Minister of Industry and Trade decides to
terminate the investigation;
c) The investigating authority has given the draft
preliminary determination or the draft final determination;
d) The Minister of Industry and Trade decides to
apply the provisional transitional RCEP safeguard measure, apply or extend the
transitional RCEP safeguard measure;
dd) The Minister of Industry and Trade decides to
modify the application of the provisional transitional RCEP safeguard measure,
or modify the application or extension of the transitional RCEP safeguard
measure.
2. A written notice prescribed
in Point a Clause 1 of this Article shall include:
a) A description of the imported good eligible for the
most-favoured-nation rate of customs duty under the RCEP Agreement and subject
to the transitional RCEP safeguard measure, including its name, heading and the
most-favoured-nation rate under the special preferential import tariff schedule
for implementation of the RCEP Agreement;
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c) The date of the Minister of Industry and Trade’s
decision to initiate the investigation and the period of investigation.
3. A written notice referred
to in Point c and Point d Clause 1 of this Article shall include:
a) A description of the imported good eligible for
the most-favoured-nation rate of customs duty under the RCEP Agreement and
subject to the transitional RCEP safeguard measure, including its name, heading
and the most-favoured-nation rate under the special preferential import tariff
schedule for implementation of the RCEP Agreement;
b) Evidence of the serious injury or threat of
serious injury caused by increased imports of the originating good of another
Party or Parties as a result of the reduction or elimination of a customs duty
pursuant to the RCEP Agreement;
c) A description of the proposed provisional
transitional RCEP safeguard measure or transitional RCEP safeguard measure;
d) The proposed date of the introduction of the
provisional transitional RCEP safeguard measure or transitional RCEP safeguard
measure, its expected duration, and timetable for the progressive
liberalization of the transitional RCEP safeguard measure;
dd) Evidence that the domestic industry concerned
is adjusting in the case the Minister of Industry and Trade decides to extend
the application of the transitional RCEP safeguard measure.
4. A written notice referred
to in Point dd Clause 1 of this Article shall include:
a) A description of the imported good eligible for
the most-favoured-nation rate of customs duty under the RCEP Agreement and
subject to the transitional RCEP safeguard measure, including its name, heading
and the most-favoured-nation rate under the special preferential import tariff
schedule for implementation of the RCEP Agreement;
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5. The investigating authority
shall provide written notice to Parties of the RCEP Agreement before the
Minister of Industry and Trade decides to apply the provisional transitional
RCEP safeguard measure.
6. The investigating authority
shall provide to another Party a copy or address of the website on which the
public version of the report on the case. The provided report must be in
Vietnamese language.
7. The consultations held at
the request of interested parties during the investigation or review for
extension of a transitional RCEP safeguard measure shall comply with Clause 1
Article 13 of the Decree No. 10/2018/ND-CP .
Article 14. Compensation
1. Compensation procedures in
case Vietnam initiates investigation, applies or extends the transitional RCEP
safeguard measure shall be followed in accordance with Article 7.7 of the RCEP
Agreement.
2. Authority to make
compensation shall comply with Clause 3 Article 98 of the Law on Foreign Trade
Management.
Chapter IV
IMPLEMENTATION
Article 15. Effect
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MINISTER
Nguyen Dong Dien