Proposal for a Council Regulation extending the definitive anti-dumping duty imposed by Regulation (EC) No 368/98 on imports of glyphosate originating in the People's Republic of China to imports of glyphosate consigned from Malaysia or Taiwan, whether declared as originating in Malaysia or Taiwan or not, and terminating the investigation in respect of imports from one Malaysian and one Taiwanese exporting producer
Date: 2001-12-28
Institutions: European Commission
Subjects: Malaysia, Taiwan, anti-dumping duty, anti-dumping legislation, herbicide, import, originating product

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 28.12.2001
COM(2001) 793 final

Proposal for a

COUNCIL REGULATION

extending the definitive anti-dumping duty imposed by Regulation (EC) No 368/98 on
imports of glyphosate originating in the People's Republic of China to imports of
glyphosate consigned from Malaysia or Taiwan, whether declared as originating in
Malaysia or Taiwan or not, and terminating the investigation in respect of imports from
one Malaysian and one Taiwanese exporting producer

(presented by the Commission)

EXPLANATORY MEMORANDUM

Attached is a proposal for a Council Regulation extending the definitive anti-dumping duty,
imposed by Regulation (EC) No 368/98 on imports of glyphosate originating in the People's
Republic of China, as amended by Regulation (EC) No 1086/2000, to imports of glyphosate
consigned from Malaysia or Taiwan (whether declared as originating there or not), with the
exception of those produced by one Malaysian and one Taiwanese company.

The  proposal  contains  detailed  information  showing,  in  respect  of  the  non-cooperating
exporters, the existence of a change in the pattern of trade for which no due cause other than
the circumvention of the duty could be established. Furthermore, undermining of the remedial
effects  of the measures  in  terms  of  quantities  and  prices  and  a  significant  level  of  dumping
were established.

One Malaysian and one Taiwanese cooperating exporting producer showed that the change in
the  pattern  of  trade  in  their  respect  had  a  due  cause  other  than  the  circumvention  of  the
measures. A second cooperating Malaysian exporting producer failed to show that the change
in  the  pattern  of  trade  in  their  respect  had  a  due  cause  other  than  the  circumvention  of  the
measures, and undermining of the remedial effects of the measures in terms of  prices  and  a
significant  dumping  margin  were  established.  A  third  Malaysian  company  failed  to
satisfactorily disclose its relationship to another Malaysian company involved with glyphosate
and is considered as non-cooperating.

Consequently,  it  was  concluded  that  the  anti-dumping  duty  of  48%  imposed  by  Regulation
(EC)  No  368/98,  as  amended  by  Regulation  (EC)  No  1086/2000,  should  be  extended  to
imports  of  the  same  product  consigned  from  Malaysia  or  Taiwan,  whether  the  product  is
declared as originating in Malaysia or Taiwan or not, with the exception of those produced by
one Malaysian and  one  Taiwanese  company.  This  duty  should  be  collected  retroactively  on
the  imports  which  have  been  subject  to  registration  pursuant  to  Article  2  of  the  Regulation
initiating  the  investigation  on  circumvention  with  the  exception  of  those  produced  by  one
Malaysian and one Taiwanese company.

A  Commission  Regulation  is  being  adopted  ending  the  registration  of  imports  from  the
Malaysian Taiwanese exempted company.

2

Proposal for a

COUNCIL REGULATION

extending the definitive anti-dumping duty imposed by Regulation (EC) No 368/98 on
imports of glyphosate originating in the People's Republic of China to imports of
glyphosate consigned from Malaysia or Taiwan, whether declared as originating in
Malaysia or Taiwan or not, and terminating the investigation in respect of imports from
one Malaysian and one Taiwanese exporting producer

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having  regard  to  Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection
against dumped imports from countries not members of the European Community(1), and in
particular Article 13 thereof,

Having  regard  to  the  proposal  submitted  by  the  Commission  after  consulting  the  Advisory
Committee,

Whereas:

A.

PROCEDURE

1.

Existing measures

(1)

(2)

By Regulation (EC) No 368/98(2) ('the definitive Regulation'), the Council imposed an
anti-dumping  duty  of  24%  on  imports  of  glyphosate  originating  in  the  People's
Republic of China ('the PRC'). By Regulation (EC) No 1086/2000(3), the rate of duty
applicable was increased to 48% pursuant to Article 12 of Regulation (EC) No 384/96
('the basic Regulation').

2.

Request

On 26 March 2001, the Commission received a request pursuant to Article 13(3) of the
basic Regulation from the European Glyphosate Association (EGA) to investigate the
alleged  circumvention  of  the  anti-dumping  measures  imposed  on  imports  of
glyphosate  originating  in  the  PRC.  The  request  was  submitted  on  behalf  of  a  major
proportion of Community producers of glyphosate ('the Community Industry').

(3)

The request alleged that there had been a change in the pattern of trade following the
imposition of anti-dumping measures on imports of glyphosate originating in the PRC

1

2

3

OJ  L  56,  6.3.1996,  p.  1.  Regulation  as  last  amended  by  Regulation  (EC)  No  2238/2000  (OJ  L  257,
11.10.2000, p. 2).
OJ L 47, 18.2.1998, p. 1.
OJ L 124, 25.5.2000, p. 1.

3

                                                
(4)

(5)

(6)

(7)

(8)

(9)

as shown by a significant increase in imports from Malaysia and Taiwan while imports
from the PRC had decreased substantially in the meantime.

This  change  in  the  pattern  of  trade  was  alleged  to  stem  from  the  transhipment  of
glyphosate  originating  in  the  PRC  via  Malaysia  or  Taiwan  and  also  from  the
formulation  in  Malaysia  or  Taiwan  of  glyphosate  originating  in  the  PRC.  It  was
claimed that the formulation was a relatively simple operation, which mainly consists
of  diluting  glyphosate  salt  with  water  and  blending  it  with  surfactant.  It  was  also
claimed that this operation led to an increase of the shipment costs for the importers.
The  request  concluded,  consequently,  that  there  was  insufficient  due  cause  or
economic justification for these practices other than the existence of the anti-dumping
duty on glyphosate originating in the PRC.

Finally, the Community Industry alleged that the remedial effects of the existing anti-
dumping  duty  on  glyphosate  were  being  undermined  both  in  terms  of  quantities  and
price  and  that  dumping  was  taking  place  in  relation  to  the  normal  values  previously
established, for imports consigned from Malaysia or Taiwan.

3.

Initiation

The  Commission  initiated  an  investigation  by  Regulation  (EC)  No  909/2001(4)
('initiating Regulation'). Pursuant to Articles 13(3) and 14(5) of the basic Regulation, it
directed  the  customs  authorities  to  register  imports  of  glyphosate  consigned  from
Malaysia or Taiwan, whether declared as originating in Malaysia or Taiwan or not, as
from 10 May 2001.

4.

Investigation

The Commission advised the representatives of Malaysia, the PRC and Taiwan of the
initiation of the investigation. Questionnaires were sent to the producers and exporters
in Malaysia and Taiwan named in the request, to the importers in the Community and
to the  exporters in the  PRC  known  to  the  Commission  as  well  as  to  other  interested
parties  who  came  forward  within  the  prescribed  time-limit.  Interested  parties  were
given the opportunity to make their views known in writing and to request a hearing
within the time limit set in the initiating Regulation.

A  number  of  exporting  producers  in  Malaysia  and  Taiwan,  as  well  as  Community
producers  and  importers,  made  their  views  known  in  writing.  All  parties  who  so
requested within the above time limit, and who demonstrated that there were particular
reasons why they should be heard, were granted the opportunity to be heard.

No reply to the questionnaire was received from exporters of glyphosate in the PRC.
Replies  to  the  questionnaire  were  received  within  the  prescribed  time-limits  from
eleven  unrelated  importers,  three  Malaysian  exporting  producers  and  one  Taiwanese
exporting producer that also acted as a trader. The Commission carried out verification
visits at the premises of the following companies:

Malaysian exporting producers:

– 

Crop Protection (M) Sdn. Bhd., Klang, Selangor D.E., Malaysia

4

OJ L 127, 9.5.2001, p. 35.

4

                                                
– 

Kenso Corporation (M) Sdn. Bhd., Petaling Jaya, Selangor D.E., Malaysia

–  Mastra  Industries  Sdn.  Bhd.,  Port  Klang,  Selangor  D.E.,  Malaysia  and  its

related exporter Agrimart Sdn Bhd, Petaling Jaya, Malaysia.

Taiwanese exporting producer/trader:

– 

5.

Sinon Corporation, Taichung, Taiwan.

Investigation period

(10)

The investigation period covered the period from 1 April 2000 to 31 March 2001 ('the
IP'). Data was collected from 1994 up to the IP to investigate the change in the pattern
of trade.

B.

RESULTS OF THE INVESTIGATION

1.

General considerations/degree of cooperation

(a) Malaysia

(11)

(12)

In  September  2001,  i.e.  three  months  after  the  expiry  of  the  deadline  for  receipt  of
replies to the questionnaire, the Commission received a submission on behalf of Halex
Industries  (M)  Sdn.  Bhd.  (Malaysia)  and  from  Agrolex  Private  Limited  (Singapore),
involved as producer and exporter respectively, in the formulation of glyphosate acid
in  Malaysia  and  exports  to  the  Community.  It  was  claimed  that  the  submission  had
already been made within the time-limits provided for in the basic Regulation and the
initiating  Regulation.  However,  the  Commission  had  no  record  of  earlier  receipt;  no
proof of successful transmission could be provided and it appeared that the submission
had been faxed to a telephone number. Given that the submission was received at such
an  advanced  stage  of  the  investigation  and,  in  addition,  would  have  required  further
explanations and verification, these companies could not be considered as cooperating
in the investigation and, therefore, findings in respect of them are made on the basis of
the facts available in accordance with Article 18(1) of the basic Regulation.

The  verification  visit  revealed  that  Mastra  Industries  (M)  Sdn.  Bhd.  ('Mastra
Industries')  was  related  to  another  company  in  Malaysia  belonging  to  the  Nufarm
group,  Nufarm  Malaysia  Sdn.  Bhd.  ('Nufarm  Malaysia')  and  that  Nufarm  Malaysia
was, at least, involved in imports into Malaysia of glyphosate acid originating in the
PRC  and  in  the  formulation  of  such  glyphosate  acid  in  Malaysia.  Nufarm  Malaysia
had  stated  at  the  beginning  of  the  investigation  that  neither  it  nor  any  related
subsidiary  company  of  Nufarm  Malaysia  had  at  any  time  exported  any  glyphosate
products,  either  directly  or  indirectly,  to  any  country  in  the  Community.  In  reply  to
this, the Commission informed Nufarm Malaysia that it was not required to fill in the
questionnaire if it had not been involved in imports of glyphosate into Malaysia from
the PRC or exports of glyphosate to the Community during the IP. Nufarm Malaysia
subsequently merely confirmed its original statement. In its reply to the questionnaire,
Mastra  Industries  presented  the  'Mastra  group'  of  related  companies,  to  which  it

5

belonged,  without  mentioning  its  relationship  to  Nufarm  Malaysia  and  other
relationships to the Nufarm group(5).

(13) As in all anti-dumping investigations, a determination has to be made in respect of the
economic  entity  formed  by  the  cooperating  exporting  producer  and  all  its  related
companies  which  are  involved  with  the  production  and/or  trade  of  the  product
concerned.  This  was  made  impossible  by  the  absence  of  verified  information  on  the
corporate  structure,  purchases,  production/processing  (including  costs)  and  sales  of
Nufarm  Malaysia.  In  accordance  with  Article  18(4)  of  the  basic  Regulation,  Mastra
Industries was informed of these findings and invited to present comments and further
explanations.

(14) Mastra Industries confirmed its relationship with Nufarm Malaysia and explained that
the  Commission  reply  to  Nufarm  Malaysia  led  Mastra  Industries  to  believe  that
Nufarm Malaysia was not involved in any way. It should, however, be noted that (i)
this reply was given on the basis of wrong information submitted by Nufarm Malaysia
and  (ii)  the  questionnaire  drew  attention  to  the  necessity  for  all  related  companies
involved  with  the  product  concerned  to  complete  the  questionnaire.  A  definition  of
related  company  was  also  provided  in  the  questionnaire.  In  addition,  following
analysis  of  Mastra  Industries'  questionnaire  reply,  Mastra  Industries  was  asked  to
identify the shareholders of the related companies listed as being all its subsidiaries or
other related companies in all countries involved directly or indirectly with glyphosate.
Mastra Industries failed to disclose before the verification visit the shareholders of two
of these companies, Mastra K.K (Japan) and Mastra Corporation Pty Ltd (Australia),
which  would  have  shown  the  relationship  to  the  Nufarm  group.  Nufarm  Malaysia
eventually  offered  to  provide  every  information  required  to  verify  that  it  had  never
exported  any  glyphosate  products  to  the  Community,  but  did  not  submit  any
supporting  information,  which  would  have  been,  in  any  case,  submitted  at  a  very
advanced stage of the investigation.

(15) Given  that  incorrect  information  has  been  submitted  and  that  necessary  information
(concerning the relationship between Nufarm Malaysia and Mastra Industries) and the
questionnaire reply by Nufarm Malaysia have not been provided within the time limits
provided for  in the  basic  Regulation,  findings in respect  of  Mastra  Industries  and  its
related  companies  are  made  on  the  basis  of  the  facts  available  in  accordance  with
Article 18(1) of the basic Regulation.

(16)

The  two  exporting  producers  in  Malaysia  that  cooperated  accounted  for  less  than
50%(6) in volume and value of the total imports of glyphosate from Malaysia during
the IP, as reported by Eurostat at TARIC level.

(b)

Taiwan

(17)

The  sole  Taiwanese  exporting  producer  that  cooperated  in  the  investigation,  Sinon
Corporation, accounted for less than 25%(6) in volume and value of the total imports
of glyphosate from Taiwan during the IP, as reported by Eurostat at TARIC level.

5

6

Two  companies  related  to  Mastra  Industries,  Mastra  K.K.  (Japan)  and  Mastra  Corporation  Pty  Ltd
(Australia), were related to Nufarm (Australia) via shareholdings and directorship.
Precise data is not given for confidentiality reasons.

6

                                                
2.

Product under consideration and like product

(18)

The product under consideration is, as defined in the original investigation, glyphosate
currently classifiable within CN  codes  ex 2931  00  95  (TARIC  code 2931  00 95*80)
and ex 3808 30 27 (TARIC code 3808 30 27*10). Glyphosate is a herbicide which can
be produced in different grades or forms of concentration of which the main ones are
the following: acid (generally with 95% glyphosate content), cake (generally with 84%
glyphosate  content),  salt  (generally  with  46%  glyphosate  content),  and  formulated
(generally  with  36%,  by  volume,  glyphosate  content),  the  latter  being  the  only  form
that is used as an end product.

(19)

The investigation showed that the glyphosate exported to the Community originating
in the PRC and that consigned from Malaysia or Taiwan to the Community have the
same  basic  physical  and  chemical  characteristics  and  have  the  same  uses.  They  are
therefore to be considered as like  products within the  meaning  of  Article  1(4) of the
basic Regulation.

3.

Change in the pattern of trade

(a) Cooperating exporting producers

Malaysia

(20)

The  two  cooperating  exporting  producers  in  Malaysia  substantially  increased  their
exports  to  the  Community  between  1998  and  the  IP,  following  the  imposition  of
measures on glyphosate originating in the PRC. The rate of increase was even higher
than  that  registered  for  the  non-cooperating  companies  and  in  both  cases,  export
records  showed  a  clear  change  in  the  pattern  of  trade  to  the  Community  at  the
beginning of 1998.

Taiwan

(21)

The  cooperating  exporting  producer  in  Taiwan,  Sinon  Corporation,  re-started  its
exports to the Community in 1998 and these increased substantially between then and
the IP.

Conclusion

(22) A change in the pattern of trade was therefore established in respect of the cooperating
exporting  producers  and  coincided  in  the  case  of  both  exporting  countries  with  the
entry into force of anti-dumping measures on glyphosate originating in the PRC at the
beginning of 1998.

(b) Non-cooperating companies

(23) As  far  as  the  non-cooperating  companies  are  concerned,  the  Commission  had  to
establish the exports to the Community on the basis of the facts available pursuant to
Article  18  of  the  basic  Regulation.  Considering  that  the  CN  codes  also  include
products  other  than  glyphosate,  it  was  considered  that  Eurostat  data  at  TARIC  level
was the best information available to establish the findings in respect of exports to the
Community  following  the  imposition  of  the  anti-dumping  duty  on  imports  of
glyphosate  originating  in  the  PRC.  Deductions  were  made  in  respect  of  the  export

7

quantities of the cooperating exporting producers(7). Eurostat data at TARIC level was
only available for full calendar years beginning from 1998. Therefore, the comparison
of  the  share  of  each  country  in  the  total  volume  of  imports  of  glyphosate  into  the
Community during the original IP (September 1994 - August 1995) and the current IP
was  made based on Eurostat data at CN  level.  For the  same  reason,  Eurostat  data  at
CN  level  was  used  to  confirm  the  pattern  of  trade  over  the  period  1994  to  the  IP,
which confirmed the conclusions reached with Eurostat data at TARIC level(8).

Malaysia

(24)

Imports into the Community of glyphosate from Malaysia increased from 740 tons(9)
in  1998  to  1.045  tons(9)  of  95%  acid  equivalent  in  the  IP,  reaching  a  peak  of
1.370 tons(9)  in  1999.  The  share  of  Malaysia  in  the  total  volume  of  imports  of
glyphosate  into  the  Community  has  also  increased  from  2,3%  in  the  original  IP  to
5,2% in the current IP. Analysis at TARIC level(10) showed an increased share, rising
from 22% to 29,7%.

(25)

Eurostat  data  at  CN  level  for  the  period  1994  to  the  IP  shows,  at  the  beginning  of
1998,  a  marked  change  in  the  pattern  of  trade  from  a  slow  increase  to  a  significant
increase, similar to that observed at TARIC level.

Taiwan

(26)

Imports into the Community of glyphosate from Taiwan increased from 36 tons(9) in
1998 to 922 tons(9) of 95% acid equivalent in the IP, reaching a peak of 1.335 tons(9)
in  2000.  The  share  of  Taiwan  in  the  total  volume  of  imports  of  glyphosate  into  the
Community has  also  increased from  0,8%  in  the  original  IP to 3% in the  current  IP.
Analysis at TARIC level(10) showed an increased share, rising from 1,4% to 19,7%.

(27)

Eurostat  data  at  CN  level  for  the  period  1994  to  the  IP  shows,  at  the  beginning  of
1998,  a  marked  change  in  the  pattern  of  trade  from  a  slow  decrease  to  a  significant
increase, similar to that observed at TARIC level.

The PRC

(28)

From  the  imposition  of  the  measures,  the  share  of  the  PRC  in  the  total  volume  of
imports of glyphosate into the Community has decreased from 24,6% in the original IP
to  8,5%  in  the  current  IP.  Analysis  at  TARIC  level(10)  showed  a  decreased  share,
changing from 24,6% to 11,9%, and an even more substantial decrease, from 19,9% to
1,5%, if imports under the normal customs regime (subject to the payment of the anti-

7

8

9

10

Analysis of Eurostat data at TARIC level was carried out after first converting quantities to 95% acid
equivalent,  using  the  best  information  available,  in  order  to  allow  for  the  different  forms  of
concentration. Import statistics registered under the TARIC code 3808 30 27*10 were converted, using
the  most  common  36%  glyphosate  content  for  formulated  product.  For  imports  registered  under  the
TARIC  code  2931  00  95*80,  since  no  information  was  available  on  the  proportion  of  acid  and  salt
imported and on their concentration, conversion to  95%  was  limited  to  the  quantities  declared  by  the
cooperating exporting producers and deducted from the total imports.
For  the  analysis  of  Eurostat  data  at  CN  level  quantities  were  not  converted  to  95%  acid  equivalent
because this was considered unreliable given that the CN codes include products other than glyphosate.
Real figures have been amended by a certain percentage to preserve confidentiality.
The volume in the original IP was established by applying to the quantities registered at CN level the
ratio  of  quantities  at  CN  level/quantities  at  TARIC  level  for  1998  and  converting  to  95%  acid
equivalent.

8

                                                
dumping  duty)  are  exclusively  considered,  since  most  imports  were  made  under
inward processing regimes.

(29)

Export statistics from the PRC at a level equivalent to CN level show, for glyphosate
not put up for retail sale, a substantial increase between 1997 and the IP of the exports
to Malaysia (from an index of 100 to 171) and Taiwan (from an index of 100 to 187).

Conclusion

(30) A  change  in  the  pattern  of  trade  was  therefore  established  in  respect  of  the  non-
cooperating companies and coincided, in the case of both exporting countries, with the
entry into force of anti-dumping measures on glyphosate originating in the PRC at the
beginning of 1998.

4.

Insufficient due cause or economic justification

(a) Cooperating exporting producers

Malaysia

(31) Crop Protection (M) Sdn. Bhd. ('Crop Protection')  transformed purchased  glyphosate
acid,  part  of  which  was  originating  in  the  PRC,  into  salt  or  formulated  products.
However,  their  purchases  of  PRC  origin  acid  increased  less  significantly  than  their
purchases of non-PRC origin acid and did not show a constant movement (plunge in
1998,  increase  up  to  2000,  decrease  within the  IP). Moreover, most of the supply  of
PRC  origin  acid  was  caused  by  Monsanto  (M)  Sdn.  Bhd.  (Malaysia)(11)  due  to  its
inability  to  supply  Crop  Protection  with  the  US  origin  acid  it  had  ordered.  Direct
purchases  from  another  supplier  in  the  PRC  were  minor.  Additionally,  to  satisfy
customers' requests, Crop Protection limited the use of acid originating in the PRC for
production of glyphosate exported to the Community. It was therefore considered that
Crop  Protection  reasonably  established  that  the  imposition  of  the  anti-dumping  duty
on glyphosate originating in the PRC did not drive the change in its pattern of trade.

(32) Kenso Corporation (M) Sdn. Bhd. ('Kenso Corporation') transformed glyphosate acid
exclusively  supplied  from  the  PRC  into  salt  or  formulated  products.  Kenso
Corporation advanced arguments to justify economically the formulation in Malaysia
of PRC origin acid. These arguments related to the low know-how in the PRC and cost
efficiency in Malaysia. However, this did not explain why Kenso Corporation started
to sell to a customer for export to the Community soon after the time of the imposition
of the anti-dumping measures on the PRC. Though concerned by the investigation, this
customer  did  not  cooperate.  The  general  pattern  and  developments  of  Kenso
Corporation's  exports  did  not  explain  either  their  appearance  on  the  Community
market. Therefore, the change in the pattern of trade remained unexplained.

Taiwan

(33)

Sinon  Corporation  produces  glyphosate  starting  from  the  initial  stage  of  producing
glyphosate  acid  and  also  formulates  purchased  glyphosate  acid  which  does  not
originate in the  PRC,  both  operations being carried  out  in  Taiwan.  The  investigation
has shown that Sinon has exported to the Community its own produced product, with

11

Related to Monsanto Europe, one of the complainants.

9

                                                
the  exception  of  limited  quantities  of  formulated  glyphosate  purchased  from  a
Malaysian  company  and  shipped  directly  from  Malaysia  to  the  Community.  It  was
therefore considered that Sinon Corporation reasonably established that the imposition
of  the  anti-dumping  duty  on  glyphosate  originating  in  the  PRC  did  not  drive  the
change in its pattern of trade.

Conclusion

(34) Given  the  above,  it  is  considered  that  Crop  Protection  and  Sinon  Corporation  have
shown  that  there  were  reasonable  grounds,  other  than  the  imposition  of  the  anti-
dumping duty on glyphosate originating in the PRC, for the change in their pattern of
trade.  Consequently,  the  investigation  with  regard  to  glyphosate  produced  by  these
two companies should be terminated.

(35) Kenso  Corporation  failed  to  submit  evidence  of  sufficient  due  cause  or  economic
justification for the change in its pattern of trade. An investigation was  consequently
carried out, in its respect, to assess the undermining of the remedial effects of the duty
and the existence of dumping in relation to the normal values previously established.

(b) Non-cooperating companies

(36)

(37)

(38)

In the absence of cooperation, and given the coincidence in time with the imposition
of the anti-dumping measures on the PRC, it has to be concluded that the change in the
pattern  of  trade  stemmed  from  the  imposition  of  the  anti-dumping  duty  rather  than
from  any  other  sufficient  due  cause  or  economic  justification  within  the  meaning  of
Article 13(1), second sentence of the basic Regulation.

This conclusion is reinforced by the following. Export statistics from the PRC show a
substantial  increase  in  exports  to  Taiwan  or  Malaysia  between  1997  and  the  IP  (see
recital  29  above)  for  glyphosate  not  put  up  for  retail  sale  (i.e.  non  formulated).  The
significant  increase  in  imports  to  the  Community  from  Malaysia  or  Taiwan  was
mainly registered on the non formulated glyphosate . Exports from the PRC to Taiwan
were,  in  Taiwanese  imports  statistics,  either  (i)  not  registered  (systematically  for
formulated glyphosate whose import into Taiwan from mainland China is, in any case,
prohibited by Taiwanese customs law) or  (ii) registered in much lower quantities for
non formulated glyphosate.

The  Commission  has  also  investigated  whether  the  development,  in  Malaysia  and
Taiwan, of transformation operations of the glyphosate acid into another form (salt or
formulated product) could justify the change in the pattern of trade. The added value
of the operations is minor (around 5% on the cost of manufacturing). Information on
manufacturing and transport costs from cooperating companies in Malaysia (quantities
from Taiwan are too low to draw conclusions) give no evidence that transforming the
acid into salt locally rather than in the Community is cost saving. Even if formulating
acid locally rather than in the Community can compensate for the increased shipping
costs  involved,  this  does  not  explain  why  exports  to  the  Community  surged
immediately after the imposition of anti-dumping measures on the PRC.

(39)

It  was,  therefore,  concluded  that  no  reasonable  grounds,  other  than  avoiding  the
existing anti-dumping duty on imports of glyphosate originating in the PRC, could be
established for the change in the pattern of trade of the non cooperating companies and
that the investigation of the other criteria should be continued in their respect.

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5.

Undermining  of  the  remedial  effects  of  the  duty  in  terms  of  the  prices
and/or the quantities of the like products

(40)

(41)

In view of the conclusions reached in recitals 31 to 39, the analysis of the undermining
of the remedial effects of the duty in terms of quantities and prices has been limited to
those economic operators for which the change in pattern of trade was found to have
insufficient due cause or economic justification.

Since the imposition of measures in the original investigation, a quantitative change in
the pattern of Community imports occurred, which undermined the remedial effects of
the measures in terms of the quantities imported into the Community. The imports of
glyphosate  from  the  PRC  in  the  IP  of  the  original  investigation  (1  397  tons)  were
exceeded by exports from Taiwan and Malaysia in the IP (representing 1 864 tons).

(42) With  regard  to  prices,  and  regarding  the  cooperating  Malaysian  exporting  producer
Kenso Corporation, the investigation revealed that the export prices submitted by this
company(12)  are  still  below  the  non-depressed  level  of  Community  prices  as
established in the original investigation. In fact, they were even lower than the export
prices established in the original investigation.

(43) Regarding  non-cooperating  companies  from  Malaysia  and  Taiwan,  the  investigation
also revealed that the prices of these imports, on the basis of the responses provided by
unrelated  importers  in  the  Community  and  representing  a  volume  of  around  50%  of
the Chinese imports in the previous investigation, were also below the non-depressed
level of Community prices as established in the original investigation and even lower
than the export prices established in the original investigation

(44)

It is therefore concluded that the  imports  concerned undermined  the remedial effects
of the duty both in terms of quantities and prices.

6.

Evidence  of  dumping  in  relation  to  the  normal  values  previously
established for like or similar products

(45)

(46)

It  has  to  be  recalled  that  Article  13(1)  of  the  basic  Regulation  requires  evidence  of
dumping in relation to the normal values previously established for the like or similar
products but does not require the establishment of a new dumping margin.

The  investigation  into  the  absence  of  movement,  or  insufficient  movement,  in  the
resale prices or subsequent selling prices in the Community, concluded by Regulation
(EC) No 1086/2000, re-examined the normal values of the original case (see recital 1
above). Consequently, the normal values used in the present investigation were those
as re-examined, since these represent the normal values previously established for the
like or similar products in accordance with Article 13(1) of the basic Regulation.

(a) Cooperating exporting producer

(47) Given that the change in the pattern of trade of Crop Protection and Sinon Corporation
was considered as having  a due cause other than the  imposition  of  the  anti-dumping
duty  on  the  PRC,  the  evidence  of  dumping  was  investigated  only  in  respect  of  the
exports to the Community of Kenso Corporation.

12

The export prices were duly adjusted for import duty and post importation costs.

11

                                                
(48)

(49)

(50)

(51)

(52)

(53)

For the purpose of a fair comparison between the normal value and the export price,
due  allowance,  in  the  form  of  adjustments,  was  made  for  differences  which  affect
prices  and  price  comparability.  These  adjustments  were  made  in  accordance  with
Article 2(10) of the basic Regulation in respect of level of trade, transport, insurance,
handling, loading and ancillary costs, credit and commissions.

In  the  original  investigation,  normal  value  was  established  for  the  two  forms  of
glyphosate produced and sold in the selected analogue country (Brazil), i.e. glyphosate
acid and formulated glyphosate. Since exports by Kenso Corporation of another form
was negligible in the IP and Article 13(1) of the basic Regulation does not require the
establishment  of  a  new  dumping  margin,  no  normal  value  was  established  for  this
type. In accordance with Article 2(11) and (12) of the basic Regulation, the weighted
average  normal  value  of  each  form  of  glyphosate  exported  to  the  Community  was
compared  to  the  weighted  average  export  price  of  the  corresponding  form.  The
difference,  expressed  as  a  percentage  of  the  CIF  import  price  at  the  Community
frontier duty unpaid, showed a significant level of dumping.

(b) Non-cooperating companies

The export prices were established on the basis of the total export value and volume
reported by Eurostat at TARIC level, from which the quantities and values exported by
the cooperating exporting producers were deducted for their respective countries.

The  weighted  average  price  of  exports  registered  under  the  TARIC  code  3808  30
27*10  (herbicides,  glyphosate)  was  compared  to  the  normal  value  for  formulated
glyphosate. The other forms of glyphosate are registered under the TARIC code 2931
00 95*80 (organo-inorganic compounds, glyphosate). To ensure a proper comparison
which was unaffected by the product mix of the exports registered under this TARIC
code,  the  weighted  average  export  price  was  compared  to  both  the  normal  value  for
glyphosate  acid  and  to  the  lower  normal  value  for  formulated  glyphosate.  In  both
cases, substantial levels of dumping were established.

For the purpose of a fair comparison between the normal value and the export price,
due  allowance,  in  the  form  of  adjustments,  was  made  for  differences  which  affect
prices  and  price  comparability.  These  adjustments  were  made  in  accordance  with
Article  2(10)  of  the  basic  Regulation  in  respect  of  transport,  insurance,  handling,
loading and ancillary costs, credit and commissions.

In accordance with Article 2(11) and (12) of the basic Regulation, the comparison of
weighted  average  normal  values  and  weighted  average  export  prices  expressed  as  a
percentage of the CIF import price at the Community frontier duty unpaid, showed a
significant level of dumping.

C.

REQUESTS FOR EXEMPTION FROM REGISTRATION OR EXTENSION

OF THE DUTY

(54)

The  Commission  received  requests  for  exemption  from  the  registration  or  measures
from  four  unrelated  importers  and  two  cooperating  exporting  producers,  Crop
Protection  and  Sinon  Corporation.  Given  that  the  alleged  circumvention  was  taking
place outside the Community, exemption of imports from registration or measures was
dependent on the findings in respect of the exporters. No decision could therefore be
taken by the Commission purely on the basis of the exemption requests presented by

12

individual importers. Importers will however benefit from exemption from registration
or  measures  to  the  extent  that  their  imports  are  from  exporters  which  have  been
granted such an exemption.

(55) By Regulation (EC) No……/2001, the Commission amended the initiating Regulation
in order to cease registration of imports of glyphosate produced by those companies in
the  countries  concerned  found  not  to  be  circumventing  the  anti-dumping  duties,
namely Crop Protection and Sinon Corporation.

(56)

In  accordance  with  the  above  findings  that  these  companies  were  found  not  to  have
circumvented  the  anti-dumping  measures  in  force,  these  companies  should  also  be
exempted from the extension of the measures envisaged.

D.

MEASURES

(57)

(58)

(59)

In  view  of  the  above  finding  of  circumvention  within  the  meaning  of  Article  13(1),
second  sentence,  of  the  basic  Regulation  and  in  accordance  with  Article  13(1),  first
sentence,  of  the  basic  Regulation,  the  existing  anti-dumping  measures  on  glyphosate
originating  in  the  PRC  should  be  extended  to  the  same  product  consigned  from
Malaysia  or  Taiwan,  whether  declared  as  originating  in  Malaysia  or  Taiwan  or  not.
Exception should be made for glyphosate consigned from Malaysia and produced by
Crop  Protection  and  for  glyphosate  consigned  from  Taiwan  and  produced  by  Sinon
Corporation.

In  accordance  with  Article  14(5)  of  the  basic  Regulation,  which  provides  that
measures may be applied against registered imports from the date of registration, the
anti-dumping  duty  should  be  collected  on  imports  of  glyphosate  consigned  from
Malaysia or Taiwan which entered the Community under registration imposed by the
initiating  Regulation,  except  on  imports  of  glyphosate  consigned  from  Malaysia  and
produced by Crop Protection and of glyphosate consigned from Taiwan and produced
by Sinon Corporation.

The  exemption  from  this  extension  which  is  granted  to  Crop  Protection  and  Sinon
Corporation was established on the basis of the findings of the  present investigation.
Therefore, it reflects the situation found during that investigation with respect to these
companies.  The  non-extension  is  thus  exclusively  applicable  to  imports  of  products
consigned  from  Malaysia  and  produced  by  Crop  Protection,  and  to  those  consigned
from Taiwan and produced by Sinon Corporation. Imported products produced by any
other company not specifically mentioned in the operative part of this Regulation with
its name and address, including entities related to those specifically mentioned, cannot
benefit  from  the  exception  and  should  be  subject  to  the  duty  rate  imposed  by  the
definitive Regulation.

(60) Any claim requesting the application of this exception would have to be addressed to
in  particular  any

the  Commission  forthwith,  with  all  relevant 
modification in the company's activities linked to production and export sales.

information, 

(61)

Taiwanese or Malaysian exporters requesting an exemption pursuant to Article 13(4)
of the basic Regulation will be required to complete a questionnaire in order to enable
the  Commission  to  determine  whether  an  exemption  may  be  warranted  and  the
Commission would normally also carry out an on-spot verification visit.

13

(62) Where exemption is considered appropriate, the Commission would, after consultation
of the Advisory Committee, amend the Regulation accordingly by updating the list of
companies benefiting from the exception

E.

PROCEDURE

(63)

Interested parties were informed of the essential facts and considerations on the basis
of  which  the  Commission  intended  to  propose  the  extension  of  the  definitive  anti-
dumping  duty  in  force  and  were  given  the  opportunity  to  comment.  No  comments
which were of a nature to change the above conclusions were received,

HAS ADOPTED THIS REGULATION:

1.

2.

3.

4.

1.

Article 1

The definitive anti-dumping duty imposed by Regulation (EC) No 368/98 on imports
of glyphosate falling within CN codes ex 2931 00 95 (TARIC code 2931 00 95*89)
and ex 3808 30 27 (TARIC code 3808 30 27*19) originating in the People's Republic
of  China  as  amended  by  Regulation  (EC)  No  1086/2000,  is  hereby  extended  to
imports of glyphosate consigned from Malaysia (whether declared as originating in
Malaysia  or  not)  (TARIC  codes  2931  00  95*81  and  3808  30  27*11)  with  the
exception of those produced by Crop Protection (M) Sdn. Bhd., Lot 746, Jalan Haji
Sirat  4  1/2  Miles,  off  Jalan  Kapar,  42100  Klang,  Selangor  Darul  Ehsan,  Malaysia
(TARIC additional code A309).

The definitive anti-dumping duty imposed by Regulation (EC) No 368/98 on imports
of glyphosate falling within CN codes ex 2931 00 95 (TARIC code 2931 00 95*89)
and ex 3808 30 27 (TARIC code 3808 30 27*19) originating in the People's Republic
of  China  as  amended  by  Regulation  (EC)  No  1086/2000,  is  hereby  extended  to
imports  of  glyphosate  consigned  from  Taiwan  (whether  declared  as  originating  in
Taiwan  or  not)  (TARIC  codes  2931  00  95*81  and  3808  30  27*11),  with  the
exception  of  those  produced  by  Sinon  Corporation,  No.  23,  Sec.  1,  Mei  Chuan  W.
Rd, Taichung, Taiwan (TARIC additional code A310).

The duty extended by paragraph 1 and 2 of this Article shall be collected on imports
registered in accordance with Article 2 of Regulation (EC) No 909/2001 and Articles
13(3) and 14(5) of Regulation (EC) No 384/96.

The provisions in force concerning customs duties shall apply.

Article 2

Requests for exemption from the duty extended by Article 1 shall be made in writing
in one of the official languages  of  the  Community  and  must be signed by a person
authorised  to  represent  the  applicant.  The  request  must  be  sent  to  the  following
address:

European Commission
Directorate-General for Trade
Unit C-3

14

B - 1049 Brussels
Fax (32-2) 295 65 05

2.

The  Commission,  after  consulting  the  Advisory  Committee,  shall  authorise,  by
decision,  the  exemption  of  imports  from  companies  which  do  not  circumvent  the
anti-dumping duty imposed by Regulation (EC)  No  368/98  from  the  duty  extended
by Article 1.

Customs authorities are hereby directed to discontinue the registration of imports, established
in accordance with Article 2 of Regulation (EC) No 909/2001.

Article 3

This  Regulation  shall  enter  into  force  on  the  day  following  that  of  its  publication  in  the
Official Journal of the European Communities.

Article 4

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the Council
The President

15