Regulations of the People's Republic of China on Safeguard Measures (Revised in 2004)
Regulations of the People's Republic of China on Safeguard Measures (Revised in 2004)
Regulations of the People's Republic of China on Safeguard Measures (Revised in 2004)
Order of the State Council [2004] No. 403
March 31, 2004
(Promulgated by Order No. 330 of the State Council of the People's Republic of China on November 26, 2001 and amended by the State Council Decision of the State Council on the Revision of the Regulations of the People's Republic of China on Safeguard Measures on March 31, 2004)
Chapter I General Provisions
Article 1 These Regulations are enacted in accordance with the relevant provisions of the Foreign Trade Law of the People's Republic of China for the purpose of promoting the healthy development of foreign trade.
Article 2 The increase in the volume of imported products that causes material damage and/or threatens serious economic loss to the domestic industry that produces like products or directly competitive products (hereinafter generally referred to as "damage" unless otherwise specified) shall be investigated pursuant to the provisions of these Regulations and the necessary safeguard measures shall be taken.
Chapter II Investigations
Article 3 A relevant natural persons, legal persons or other organizations (hereinafter referred to as applicants) in the domestic industry may, pursuant to the provisions of these Regulations, file an application in writing to the Ministry of Commerce (hereinafter referred to as MOFCOM) requesting the latter to invoke relevant provisions of the safeguard measures.
The MOFCOM shall treat the application with the urgency it deserves and decide whether, or otherwise decline, to accept to launch investigation against a foreign persons, legal persons and/or other organization that is accused or engaging in unfair competition against a specified domestic industry.
Article 4 The MOFCOM may decide to register a case for investigation and invoke relevant provisions of the safeguard measures if it has, and is in possessions of adequate and sufficient proofs to believe that the domestic industry has been exposed to, and indeed suffered from, unfair competition and/or economic and financial loss as a result of the increase of a specified imported products, although no formal petitions, requests and/or any application received from the domestic industry.
Article 5 The decision to register a case for investigation shall be officially announced and made public by the MOFCOM.
The MOFCOM shall, in a timely manner, inform the Committee for Safeguard Measures of the WTO (hereinafter referred to as the CSM of the WTO) of the decision to register a case for investigation.
Article 6 The investigation and determination of measure of damage shall be conducted and calculated respectively by the MOFCOM, but where the investigation to be conducted is related to the damage of agricultural products, such safeguard measures shall be decided joint by the MOFCOM and the Ministry of Agriculture.
Article 7 The term "the increase of the quantity of imported products" shall refer to the absolute increase of the volume of imported products or the relative increase as compared with local production.
Article 8 The following factors shall be taken into account in the determination of the value of economic loss suffered and/or incurred by, and/or damage caused to, the domestic industry by the increase of the volume of imported products:
(1) The absolute and relative increase rate and the increased volume of the imported products;
(2) The proportion of the increased products in the domestic market;
(3) The impacts of the imported products on the domestic market, including the impacts on the domestic industry in terms of volume, sales, market share, productivity, capacity utilization, profits and losses, employment, tax etc;
(4) Other factors that cause damage to the domestic industry.
The determination of the threat to cause material damage shall be based on facts instead of simply on charges, conjectures or minor possibilities.
In determining the value of economic loss suffered and/or incurred from, and/or damage caused by, the increase of volume of imported products on the domestic industry, the value of economic loss suffered and/or incurred by, and/or damage caused to, the domestic market by those factors other than the increase of import may not be attributed to the increase of import.
Article 9 During the period of the conduct of any investigations, the MOFCOM shall in a timely manner, publicize detailed analyses of the cases and those factors relevant to the examination, etc
Article 10 The term "domestic industry" shall refer to all producers that manufacture similar or directly competitive products within the People's Republic of China or all producers whose total volume approximates to a major and significant percentage of the total volume of similar products or directly competitive products of the whole country.
Article 11 The MOFCOM shall, on the basis of objective facts and sufficient proofs, determine whether there are causal relations between the increase in the volume of any imported products and the likely economic loss to the domestic industry.
Article 12 The MOFCOM shall create a level-playing ground for companies and organizations engaging in import-export business and any other parties concerned to articulate their opinions and arguments and defend their actions why the MOFCOM shall or shall not commence investigations and/or invoke the provisions of the safeguard measures.
Investigations may be made by way of questionnaires or hearings or other means.
Article 13 The relevant documents and information gathered and obtained during investigations may, if the providers thereof think it necessary to keep them confidential, be treated as confidential by the MOFCOM.
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