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The New "Principle for the Investigation of Retroactive levy of Anti-Dumping Duties"

Doris Lin/Serena Cheng


According to Article 42 of the "Regulations Governing the Implementation of the Imposition of Countervailing and Anti-Dumping Duties", retroactive levy of anti-dumping duties (hereinafter "retroactive levy"), the Ministry of Finance (MOF) adopted the "Principle for the Investigation of Retroactive Levy of Anti-Dumping Duties" on 2 September 2016, which entered into force immediately. The key points of the Principle are as follows:
 
I.        The requirement of retroactive levy and the determination criteria of MOF (Articles 2 and 5):
 
1.      The product in question has a history of dumping that caused injury: The product in question has a history of dumping that caused injury and the anti-dumping measure has been applied in our territory or is being applied in other territories.
 
2.      The importer is, or should be, aware that the exporter is practising dumping and that such dumping would cause material injury to a domestic industry: When the exporter under investigation sells the product in question to an unrelated importer, the calculation of dumping margins by actual export price is over 25%; when the exporter under investigation sells to a related importer, the calculation of dumping margins by constructed export price is over 15%.
 
3.      Individual importer or importers of the industry import a significant amount of dumped product within a relatively short time, which is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied: From the date of the initiation of the investigation, the import volume during the last three months is higher than previous three months. The determination could be adjusted by the seasons, consumption in importing Member, or other factors.
 
II.      MOF and Ministry of Economic Affairs (MOEA) shall give the importer concerned an opportunity to comment before the determination is made (Article 4). The division of the investigation and determination matters between MOF and Ministry of MOEA is as follows:
 
1.      MOF
 
(1)   The product in question has a history of dumping that caused injury.
 
(2)   The importer is, or should be, aware that the exporter is practising dumping.
 
(3)   Individual importer or importers of the industry import a significant amount of dumped product within a relatively short time.
 
2.      MOEA
 
(1)   The product in question is imported in significant amounts within a relatively short time, which causes injury to domestic industry.
 
(2)   Remedies of anti-dumping duty may be seriously undermined.
 
III.    The authorities make positive determination of retroactive levy when MOF determines that injury is caused by a significant amount of dumped imports of a product, MOEA determines there is material injury to a domestic industry, and both of the said authorities determine that a significant amount of dumped imports of a product within a relatively short time is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied. A definitive anti-dumping duty may be levied on products that entered for consumption not more than 90 days prior to the date of application of provisional measures (Article 6).

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