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WORLD TRADE G/ADP/N/1/THA/3
ORGANIZATION 13 January 1997
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing Measures
NOTIFICATION OF LAWS AND REGULATIONS
UNDER ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
The following communication, dated 17 December 1996, has been received from the Permanent Mission of Thailand.
With reference to the notification requirement under Article 18.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, I would like to forward to the Committee on Anti-Dumping Practices the Unofficial Translation of the Notification of the Ministry of Commerce on the Imposition of Anti-Dumping and Countervailing Duties B.E. 2539, which comes into force on 14 September 1996. This Notification is to replace the Notification of the Ministry of Commerce on Criteria and Consideration Procedures for the Imposition of Special Duty on Products which are Imported into Thailand at Unfair Prices and for the Imposition of Special Duty on Products which are Subsidized and Imported into Thailand (G/ADP/N/1/THA/2-G/SCM/N/1/THA/2).
NOTIFICATION OF THE MINISTRY OF COMMERCE
ON THE IMPOSITION OF ANTI-DUMPING AND
COUNTERVAILING DUTIES B.E. 2539
In order to protect the Thai domestic industry from dumped or subsidized products, the Minister of Commerce, by virtue of Articles 5(6) and 6 of the Export and Import of Goods Act B.E. 2522, and with the approval of the Cabinet, hereby issue the notification as follows:
Article 1 This Notification is to be called "Notification of the Ministry of Commerce on the Imposition of Anti-Dumping and Countervailing Duties B.E. 2539".
Article 2 This Notification is to be effective after its publication in the Royal Gazette.
Article 3 The Notification of the Ministry of Commerce regarding Rules and Procedures on the Imposition of Special Duties on Dumped and Subsidized Imports, B.E. 2534 is hereby nullified.
Article 4 In this Notification,
"Subject goods" means products which are alleged to be dumped or subsidized.
"Like product" means product which is identical to the subject goods or in the absence of such product, another product which has characteristics closely resembling those of the subject goods.
"Level of trade" means stages of the products ranging from the production to distribution to consumers.
"Dumping margin" means the margin by which the normal value exceeds the export price of the subject goods.
"Interested party" means
(1) a foreign producer or exporter or the importer of the subject goods, or a trade association a majority of the members of which are producers, exporters or importers of such subject goods, as the case may be;
(2) the government of a country in which the subject goods are exported to Thailand;
(3) a producer of the like product in Thailand, or a trade or business association a majority of the members of which produce such product in Thailand;
(4) any person or party which may be prescribed by the Minister of Commerce as an interested party.
"Minister" means the Minister of Commerce.
"Committee" means the Committee on Dumping and Subsidy.
Article 5 General
5.1 An act of dumping or subsidization specific to an enterprise which is causing injury to the domestic industry in a manner prescribed in this Notification is unlawful.
A determination as to whether to take any measures against the actions specified in the preceding paragraph shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry, consumers and the public interest.
5.2 The petitioners, importers and exporters may request disclosure of the essential facts and considerations on which the imposition of provisional measures, duty or the review of duty are based. This request shall be made in accordance with rules and procedures prescribed by the Department of Foreign Trade.
The request referred to in the preceding paragraph shall be submitted within one month after the date on which provisional measure is imposed.
5.3 The refund of duty under the provisions of this Notification shall be in accordance with the rules and procedures prescribed by the Department of Foreign Trade.
Article 6 Dumping
6.1 For the purpose of this Notification, dumping means the importation of a product into the commerce of Thailand at less than normal value of the like product.
6.2 The export price shall be the price actually paid or payable for the product exported from the exporting country to Thailand.
In a case where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement among the relevant parties, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer; or, if the products are not resold to an independent buyer; or are not resold in the condition in which they are imported, on any reasonable basis.
In a case referred to in the second paragraph above, adjustment for all costs and expenses including duties and taxes, incurred between importation and resale, and for profits accruing, shall be made so as to establish an export price.
6.3 The normal value shall normally be based on the prices paid or payable for the like product in the ordinary course of trade by independent customers in the exporting country. Sales of the like product destined for consumption in the domestic market of the exporting country shall normally be used to determine normal value if such sales volume constitutes 5% or more of the sales of the product exported to Thailand from that exporting country. However, a lower ratio may be used when the prices charged are considered representative in the market of the exporting country.
Where there are no sales of the like product as described in the preceding paragraph or where the price is unreliable because of an association or a compensatory arrangement among the relevant parties or because of the particular market situation in the domestic market of the exporting country, such sales do not permit a proper comparison, the normal value shall be determined as follows:
(1) on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative; or
(2) on the basis of the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits.
Sales pursuant to the first paragraph or (1) above made at prices below production costs plus administrative, selling and general costs may be treated as not being in the ordinary course of trade and may be disregarded in determining normal value if it is determined that such sales are made within an extended period of time in substantial quantities and are at prices which do not provide for the recovery of all costs within a reasonable period of time. If prices which are below costs at the time of sale are above weighted average costs per unit for the period of investigation, such prices shall be considered to provide for recovery of costs within a reasonable period of time.
6.4 In the case of imports from non-market economy countries, normal value described in Article 6.3 shall be determined by comparison within information in a comparable market economy third country or where that is not possible, on any reasonable basis, including the price of the like product sold in Thailand.
6.5 In the case where products are not imported from the country of origin but are exported to Thailand from an intermediate country, information existing in the exporting country shall normally be used as the basis for establishing the normal value described in Article 6.3. However, the price in the country of origin may be used in determining normal value if, for example, the products are merely transhipped through the products exporting country or such products are not produced in the exporting country or there is no comparable price for them in the exporting country.
6.6 A fair comparison shall be made for the purpose of determining a dumping margin. This comparison shall be made at the same level of trade and time. Due allowances shall be made for differences which affect price comparability. In case where the export price and normal value are not in the same level of trade or are not from nearly the same time, due allowances, in the form of adjustments, shall be made for differences in factors which affect price comparability.
Subject to the preceding paragraph, the dumping margin per unit shall be determined on the following basis unless there is a reasonable ground to use other methods:
(1) a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions; or
(2) a comparison of normal value and export prices on a transaction-to-transaction basis; or
(3) a comparison of weighted average normal value and prices of individual export transactions if there is a pattern of export prices which differs significantly among different purchasers, regions or time periods, and if the methods specified in (1) and (2) above would not reflect the full degree of dumping.
Sampling in accordance with the rules and procedures prescribed by the Department of Foreign Trade may be used in determining the dumping margin.
Article 7 Injury
7.1 Unless otherwise specified in the Notification, injury means:
(1) material injury;
(2) threat of material injury; or
(3) material retardation.
7.2 A determination of material injury to domestic industry under Article 7.1(1) shall be based on positive evidence of the following:
(1) the volume of dumped imports and the effects of the dumped imports on prices of the like product in the domestic market of Thailand; and
(2) the consequent impact of these imports on domestic industry.
Where imports of a product from more than one country are simultaneously subject to anti-dumping proceedings, in making a determination of injury under Article 7.1(1), the effects of such imports mentioned in the preceding paragraph may be cumulatively assessed if it is determined that the dumping margin established in relation to the imports from each country is more than de minimis and that the volume of imports from each country is not negligible as defined in Article 9.3 and a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between dumped imports and the conditions of competition between the dumped imports and the like product in the domestic market of Thailand.
7.3 In determining an injury referred to in Article 7.1(1), the demonstration of a causal relationship between the dumped products and the injury to the domestic industry shall be based on an examination of all relevant evidence including any known factors other than dumped products which at the same time are injuring the domestic industry. Factors which may be relevant in this respect include inter alia, the volume and prices of imports not sold at dumping prices, contraction in demand and changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry.
7.4 A determination of threat of material injury to domestic industry referred to in Article 7.1(2) shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent or indicate the imminent likelihood of further dumped exports and that, unless protective action is taken, material injury will occur. In making a determination regarding the existence of a threat of material injury, consideration should be given to factors such as:
(1) a significant rate of increase of dumped imports into the domestic market of Thailand indicating the likelihood of substantially increased imports;
(2) sufficient freely disposable capacity of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased dumped exports to Thailand, account being taken of the availability of other export markets to absorb any additional exports;
(3) whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which would have occurred, and would probably increase demand for further imports; and
(4) inventories of the product being investigated.
7.5 In order to determine whether material retardation of a domestic industry under Article 7.1(3) exists, factors which may lead to a material retardation including the possible viability and time period required for the establishment and development of such domestic industry shall be present.
Article 8 Domestic industry
For the purpose of this notification, domestic industry shall be interpreted as referring to the domestic producers of the like products whose collective output of the products constitutes more than half of the total domestic production of those products, except that:
(1) when producers are themselves importers of the dumped product or are related to the exporters or importers, the term "domestic industry" may be interpreted as referring to the rest of the producers;
(2) the territory of Thailand may, for the production in question, be divided into two or more competitive markets and the producers of the like products within each market may be regarded as a separate industry if the producers within such market sell all or almost all of their production of the product in question in that market, and the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in Thailand.
For the purpose of (1) above, producers shall be deemed to be related to exporters or importers only if one of them directly or indirectly controls the other; or both of them are directly or indirectly controlled by a third person; or together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. For the purpose of this paragraph, one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter.
In the case where the territory of Thailand is divided into two or more competitive markets pursuant to (2) above, injury may be found to exist even where a major portion of the total domestic industry is not injured. In such circumstances, anti-dumping surcharge shall be levied only on the products in question consigned for final consumption to that area. When it is not practicable to levy anti-dumping surcharge on such a basis or the adequate assurances under Article 13.2 have not been given promptly, anti-dumping surcharge may be levied on all the dumped products imported into Thailand.
Article 9 Anti-Dumping proceeding
9.1 Any information which is by nature confidential, or which is provided on a confidential basis by parties to an investigation shall be treated as such.
Information provided on a confidential basis shall not be disclosed without permission of the party submitting it. The supplier of that information shall be required to furnish non-confidential summaries thereof. If the supplier of the information does not furnish such non-confidential summaries and is unwilling to authorize its disclosure to the public within the time period specified, that information may be disregarded in the consideration process.
9.2 In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a time period specified, or does not cooperate and thus relevant information is being withheld, or significantly impedes the investigation, determinations may be made on the basis of the facts available. This situation could lead to a result which is less favourable to the interested party than if the party did cooperate.
9.3 Anti-dumping proceedings shall be terminated in cases where it is determined that the dumping margin is de minimis as prescribed by the Department of Foreign Trade or the volume of dumped imports is negligible as prescribed by the Department of Foreign Trade.
9.4 If the authorities deem it appropriate they may conduct a verification of the claims or evidence involved in an anti-dumping proceeding.
The verification may be conducted at any time during the course of an investigation and may be carried out in Thailand, the exporting country or any relevant countries.
9.5 After the notice of dumping and injury investigation is published in accordance with Article 11.1, if there are reasonable grounds for suspecting that eventually the definitive anti-dumping duty may be collected retroactively prior to the date of application of provision measures, the Committee may propose to the Minister to impose a duty on the subject goods imported during the said period.
Article 10 Initiation of proceedings
10.1 An anti-dumping proceeding shall be initiated in the following manner:
(1) when the Department of Foreign Trade deems appropriate upon a sufficient evidence of dumping and injury in accordance with the provisions of this Notification; or
(2) when a petition is submitted in accordance with Article 10.2.
10.2 A petition for the Committee to conduct an anti-dumping proceeding may be submitted by or on behalf of the domestic industry to the Department of Foreign Trade.
The petition referred to in the preceding paragraph shall be supported by those domestic producers whose collective output constitutes more than 50% of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the petition and provided further that those domestic producers expressly supporting the petition account for not less than 25% of total production of the like product produced by the domestic industry.
The submission of the petition shall be in compliance with the rules and procedures prescribed by the Department of Foreign Trade.
10.3 If the petition referred to in Article 10.2 is not supported by sufficient or accurate evidence, the Department of Foreign Trade shall notify such petitioner to complete or correct the petition within the time period specified.
When the petition is supported by sufficient and accurate evidence, the Department of Foreign Trade shall submit that petition to the Committee for consideration.
10.4 The petitioner pursuant to Article 10.2 may withdraw the petition. However, if the notice of anti-dumping and injury investigations has been made in conformity with Article 11.1, the Committee may terminate or continue with the investigation as it deems appropriate.
10.5 In cases in which the Department of Foreign Trade deems it appropriate to initiate the anti-dumping investigation or when the Committee determines that the petition under Article 10.2 above is supported by sufficient grounds, the Department of Foreign Trade shall notify the Department of Internal Trade. The Department of Foreign Trade and the Department of Internal Trade shall promptly carry out their duties under this Notification.
If the Committee determines that the petition is not supported by sufficient grounds, the Department of Foreign Trade shall notify the petitioner of such determination as soon as possible.
10.6 If the government of any country files a complaint that dumped products imported into Thailand are causing injury to the domestic industry of that country and if the Department of Foreign Trade deems it appropriate, it may proceed with an anti-dumping proceeding on the alleged dumping and the provisions of Articles 9 to 13 shall apply, mutatis mutandis. The decision to proceed with the case must be approved by the World Trade Organization prior to initiation of the proceeding.
The rules and procedures for the proceedings referred to in the preceding paragraph shall be in accordance with those prescribed by the Department of Foreign Trade.
Article 11 Anti-Dumping and injury investigation
11.1 In anti-dumping proceedings, the Department of Foreign Trade shall be responsible for conducting an investigation into the existence of dumping and the Department of Internal Trade shall be responsible for conducting an investigation into the existence of injury.
An anti-dumping and injury investigation shall be initiated by a public notice of the initiation thereof given by the Department of Foreign Trade and a publication in a generally circulated daily newspaper as it deems fit.
A public notice of the initiation of an anti-dumping and injury investigation shall contain the following information:
(1) the name of the product involved;
(2) the name of the exporting country or countries involved;
(3) the summary of the information;
(4) the request for information from the authorities and the fees involved;
(5) the time-limits allowed to interested parties for making themselves known and to present their views in writing;
(6) the period within which interested parties may apply to be heard in a dumping investigation conducted by the Department of Foreign Trade and in an injury investigation conducted by the Department of Internal Trade.
The Department of Foreign Trade shall inform in writing the petitioner, exporters, importers or representative thereof known to it of the initiation of the anti-dumping and injury investigation.
11.2 Once the anti-dumping and injury investigation is completed, the Department of Foreign Trade and the Department of Internal Trade, as the case may be, shall prepare a report on its findings and shall submit the same to the Committee for further deliberation.
Article 12 Provisional measures
12.1 If the Committee makes an affirmative preliminary determination of dumping and consequent injury and determines provisional measures necessary to prevent injury being caused to the domestic industry, the Committee shall propose to the Minister to impose provisional measures by applying provisional duty. The provisional duty imposed shall not be greater than the provisionally estimated margin of dumping.
12.2 Provisional measures shall be applied no sooner than 60 days from the date of publication of the notice of the initiation of the anti-dumping and injury investigation.
The application of provisional measures shall be limited only to the period necessary and shall be in compliance with the following:
(1) under normal circumstances, the application of provisional measures may not exceed four months;
(2) upon request by exporters representing a significant percentage of the trade involved, the application period may be extended to a maximum of six months;
(3) if, in the course of an investigation, the question of whether a duty lower than the margin of dumping would be sufficient to remove injury is examined, the period referred to in (1) above may be extended to six months and the period referred to in (2) may be extended to nine months, respectively.
Article 13 Undertakings
13.1 Anti-dumping proceedings may be suspended or terminated with respect to any exporter without the imposition of provisional measures upon the receipt of satisfactory undertakings by the Department of Foreign Trade from such exporter to revise its prices or to cease exports of the dumped products in question.
The Department of Foreign Trade may accept an undertaking only if it is satisfied that, by accepting such undertaking, the injurious effect of the dumping will be eliminated. However, price increases under such undertakings shall not be higher than necessary to eliminate the dumping margin.
The undertakings, to become effective, must be approved by the Committee.
13.2 Undertakings may be accepted only after the Committee has made a preliminary determination.
Undertakings may be sought by the Department of Foreign Trade or proposed by exporters.
The Department of Foreign Trade may reject the undertakings offered by the exporters for any reasons including reason of general policy. In such a case, the Department of Foreign Trade, where practicable, shall provide to the exporter the reasons which have led it to consider acceptance of an undertaking as inappropriate.
13.3 The fact that exporters do not offer the undertakings, or do not accept an invitation to do so from the Department of Foreign Trade, shall in no way prejudice the consideration of
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e-Chairman is present at the meeting or able to perform his assigned functions, the members in attendance shall elect an acting Chairman among themselves.
A decision of the Committee shall be made by a majority vote of all the members present at the meeting. Each member has one vote. In the event of a tie, the Chairman shall cast the final, decisive vote.
Dissenting views together with the reasons therefore which are offered during any meeting shall be recorded in the minutes of the meeting. Any member of the Committee may request the incorporation of his dissenting views in the determination.
17.7 For the purposes of performing its duties and functions under the provisions of this notification, the Committee may appoint a sub-committee to perform any of its duties and functions on its behalf.
Article 18 Provisional terms
This notification shall apply to all the petitions which were filed under the notification of the Ministry of Commerce regarding Rules and Procedures on the Imposition of Surcharges on Dumped and Subsidized Imports, B.E. 2534 but has not been finalized.
Article 19 The Minister of Commerce shall be responsible for the administration of this notification.
Minister of Commerce