G/ADP/Q1/USA/31  
G/SCM/Q1/USA/31  
 
17 October 201 6 
(16-5612) Page: 1/4 
Committee on Anti -Dumping Practices  
Committee on Subsidies and Countervailing Measures  Original: English  
 
 NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS  
REPLIES TO QUESTIONS1 POSED BY THE SEPARA TE CUSTOMS TERRITORY  OF TAIWAN,  
PENGHU, KI NMEN AND MATSU REGARD ING THE NOTIFICATION  
OF THE UNITED STATES  
 
The following communicati on, dated 14 October 2016, is being circulated at the request of the 
Delegation of the United States . 
 
_______________  
 
 
Question 1  
Period of Investigation  
 
Sec. 165.2 of the Regulations provides that "[e]ntries that may be the subject of an 
allegation…are  those entries of allegedly covered merchandise made within one year 
before the receipt of an allegation  under Sec. 165.11…".  
 
1.1. Is the one -year period of investigation determined by counting back from the date 
of receipt of the allegations specified in  Sec. 165.12(a)?  
 
Reply : 
 
Yes, as stated in the regulations, the one -year period is determined by counting back from the 
date of receipt of an allegation.  
 
1.2. When read together with Sec. 165.11(a), does Sec. 165.2 suggest that the 
interested party is no t required to and may not specify the period of investigation?  
 
Reply : 
 
Section 165.11 covers the filing requirements and procedures surrounding the submission of an 
allegation.  As stated in the answer above, normally, the one -year period is determined by counting 
back from the date of receipt of an allegation.  In addition, as stated in section 165.2 of the 
regulations, U.S. Customs and Border Protection (CBP), the entity primarily conducting these 
investigations, may, at its discretion, investigate other e ntries of such covered merchandise.  
 
Question 2  
Scope of Allegation and Investigation  
 
Sec. 165.11(a) provides that "[e]ach allegation must be limited to one importer, but an 
interested party may file multiple allegations." Sec. 165.11(b) requires that th e 
allegation shall include "[a]pplicable AD/CVD orders".  
 
2.1. Does the plural term "[a]pplicable AD/CVD orders" used here suggest that during 
the course of one investigation, CBP may investigate multiple AD, CVD evasions, or 
                                                
1 G/ADP/Q1/USA/30 -G/SCM/Q1/USA/30 (dated 5 October 20 16). G/ADP/Q1/USA/31 • G/SCM/Q1/USA/31  
 
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  evasions of both measures, whi ch may be imposed on merchandise originating 
from different countries and e xported by different exporters?  
 
Reply : 
 
The allegation must be specific to one importer.  There are instances where a type of merchandise 
is covered by both an antidumping and a cou ntervailing duty order, or one importer may be 
importing merchandise covered by several orders; therefore, the plural of "orders " is appropriate.  
 
2.2. Does an allegation/investigation cover all entries  of the merchandise made by the 
alleged evader? Or, do es the interested party or CBP need to specify the scope of 
the allegation/investigation as it relates to certain entries, for example, to those 
originating from certain cou ntries or by certain exporters?  
 
Reply : 
 
Section 165.11 sets forth what is required  in an allegation.  As to the contents of a specific 
allegation, section 165.11(b)(6) includes "information reasonably available to the interested party 
to support its allegation that the importer with respect to whom the allegation is filed is engaged in 
evasion. " As a result, the facts and circumstances of specific allegations will vary.  
 
2.3. The last sentence of Sec. 165.2 grants CBP the discretion to investigate entries 
outside the one -year period. Does CBP have the same discretion to investigate 
entrie s not covered by an allegation, for example, entries made by non -alleged 
importers or entries covere d by non -alleged AD/CVD orders?  
 
Reply : 
 
Investigations are specific to the importer in the allegation.  As stated in section 165.47 of the 
regulations, "CBP and other government agencies reserve the right to undertake additional 
investigations or enforcement actions in cases covered by these provisions.  Nothing within this 
part prevents CBP from assessing penalties of any sort related to such cases or taking action under 
any other relevant laws. " 
 
2.4. Does the term "one importer" include affiliated importers?  
 
Reply : 
 
Section 165.11 states that an allegation must provide the "name and address of importer against 
whom the allegation is brought. " Whether that c overs affiliated importers will depend on the 
specific allegation that is brought and the facts and circumstances in the allegation.  
 
Question 3  
Determination by CBP  
 
If CBP makes an affirmative evasion determination, Sec. 165.28(a)(1)(i) provides that 
"CBP will suspend the liquidation of unliquidated entries of covered merchandise that is 
subject to the determination and that entered on or after the date of the initiation of the 
investigation". In addition, CBP may ask DOC for the applicable assessment ra tes or 
cash deposit rates, in accordance with Sec. 165.28(b).  
 
3.1. Does that suggest that all the future entries  made by the evader will be subject to 
the applicable AD/CVD measures? If not, how will CBP determine which future 
entries are subject to the AD/CVD measures?  
 
Reply : 
 
CBP will collect cash deposits and appropriate security on entries that are subject to an AD/CVD 
order. As to what specific entries are covered, this will depend on the allegation made and CBP 's 
determination.  
 G/ADP/Q1/USA/31 • G/SCM/Q1/USA/31  
 
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  3.2. In the case of  evasion by misreporting of the physical characteristics of the 
merchandise, how will CBP implement its determination with regard to future 
entries made by the evader?  
 
Reply : 
 
This is a difficult question to answer in the abstract. CBP 's implementation o f its determination will 
depend on the scope of the allegation, the facts and circumstances of the allegation, the duty 
evasion activity, and CBP 's findings in its determination. In other words, CBP 's implementation will 
vary case -by-case based on the fact s, circumstances, and findings of each individual investigation.  
 
Question 4  
Investigation Procedures  
 
Sec. 165.15(d)(1) provides that CBP will notify the parties to the investigation no later 
than 95 calendar days of its initiation decision. The US expla ins that this timeframe 
takes into account "…the need to provide adequate time for CBP's investigatory 
process.2" 
 
4.1. Please elaborate on the "investigatory process" that CBP needs to conduct during 
the 95 -day period before notifying the parties to the i nvestigation.  
 
Reply : 
 
CBP will use its authority to collect and evaluate record evidence to determine if there is a 
reasonable suspicion that such merchandise was entered into the United States through evasion 
and if so, apply interim measures not later t han 90 days after initiating the investigation.  
 
4.2. In the absence of notification from the CBP, do the parties to the investigation or 
other interested parties have any other access to information concerning the 
investigation?  
 
Reply : 
 
The regulations ( e.g., section 165.23(c)) explain that the parties to the investigation must serve 
the other parties to the investigation with the public versions of their submissions.  
 
4.3. In the course of one investigation, what information and documents (e.g. 
allegatio n, initiation decision, interim decision, final determination, and so on) are 
available to the public? Please specify how and where they are published.  
 
Reply : 
 
Due to the nature of these investigations, the regulations do not provide for publication of th e 
types of documents listed in the question. Any release of information regarding the investigation is 
made to parties to the investigation.  
 
Question 5  
Standards of Determination  
 
5.1. In addition to the definition of evasion provided in Sec. 165.1, do a ny other laws, 
regulations, or documents lay down more specific standards of determining 
evasions, (for example, production processes in third counties or in the US which 
add a specific amount of value to the finished merchandise may not be determined 
as evasion)?  
5.2. If so, could the US please specify?  
 
                                                
2 G/ADP/N/1/USA/1/Suppl.25 -G/SCM/N/1/USA/1/Suppl.24 (dated 26 August 2016), page 6.  G/ADP/Q1/USA/31 • G/SCM/Q1/USA/31  
 
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  Reply : 
 
The statute, 19 U.S.C. sec. 1517(a)(5), in addition to section 165.1 of the regulations, provides 
the legal definition for evasion.  
 
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