G/SG/Q1/TPKM/8  
 
25 April 2014  
(14-2524)  Page: 1/7  
Committee on Safeguards  Original: English  
 
 NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLE 12.6 OF THE AGREEMENT 
REPLIES TO QUESTIONS POSED BY THE UNITED STATES1 REGARDING THE NOTIFICATION OF 
THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU2 
The following communication, dated 25 April 2014, is being circulated at the request of the 
Delegation of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu. 
 
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 Question 1 
 
With regard to Article 3 of Chapter 1 (General  Provisions) of the Revised Rules, Chinese 
Taipei states that in making a determination of  a threat of serious injury, in addition to 
the other factors, "the production capacity and export capability of the major exporting 
countries shall be considered so as to evaluate whether the said industry is to be seriously injured if the relief measure is no t adopted." This consideration appears to 
concern future serious injury and to be premis ed on an increase in imports that has not 
yet occurred, that is, a threat of increased imports. Please explai n how Chinese Taipei 
would apply such a provision and how such a provision would be consistent with Chinese Taipei's obligations under the WTO Agreement on Safeguards.  
 
Reply 
 
Article 4.2(a) of the Agreement on Safeguards requir es an evaluation of all relevant factors in the 
determination of a threat of serious injury, and the list of factors is not exhaustive. Indeed, all 
relevant factors, whether or not listed in Article 4.2(a) of the Agreement on Safeguards, must be 
examined. 
 Article 3(2) of the Revised Rules of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu requires that in the determination of a th reat of serious injury, all the factors listed in 
Article 3(1) of the Revised Rules be examined, al ong with "other relevant factors". The list of 
factors in Article 3(1) of the Revised Rules correlates fully with the non-exhaustive list of factors in Article 4.2(a) of the Agreement on Safeguards. In our Revised Rules, the "production capacity and 
export capability of the major exporting countries " is specifically mentioned as an additional 
relevant factor, in line with our obligation to evaluate all relevant factors whether or not listed in 
Article 4.2(a) of the Agreement on Safeguards.  
 
We would like to further note that by requiring the examination of an additional, specified relevant factor, Article 3(2) of the Revised Rules imposes a greater burden on the investigating authority in 
the determination of a threat of serious injury. 
 
Question 2  
With regard to Article 4 of Chapter 1 (General  Provisions) of the Revised Rules, the list 
of relief measures includes a "financing gu arantee, subsidy for te chnological research 
and development, assistance for changing the line of business, professional training or 
other adjustment measures or assistance." Please explain how relief measures in these 
                                               
1 G/SG/Q1/TPKM/7. 
2 G/SG/N/1/TPKM/3 (dated 28 January 2014). G/SG/Q1/TPKM/8 
 
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  forms, particularly measures in the form of a subsidy, would be consistent with Chinese 
Taipei's obligations under the WTO Ag reement on Safeguards and other WTO 
agreements.  
Reply 
 
Article 5.1 of the Agreement on Safeguards provides that "Members should choose measures most 
suitable for the achievement of these objectives." In other words, Members have a certain amount 
of discretion as to what is the most suitable measure for achieving the objectives of preventing/remedying serious injury and facilitating adjustment.  
Article 4(1) of the Revised Rules provides that safeguard measures can take the form of (i) 
adjusting the tariffs; (ii) imposing import quotas; and (iii) providing financing guarantees, subsidies for technological research and development, assistance with changing the line of 
business, and professional training or other adjustment measures or assistance. These 
"adjustment measures or assistance", if chosen, serve to facilitate adjustment within the meaning of Article 5.1 of the Agreement on Safeguards, and fall within the discretion of the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu as a WTO Member. The Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu is confident that any such "adjustment measures or assistance", if taken, will be fully consistent with Article 5.1 of the Agreement on Safeguards and other WTO Agreements, such as the Agreement on Subsidies and Countervailing 
Duties. 
 Question 3 
 
Articles 8 and 9 in Chapter 2 (Petition) of the Revised Rules set out requirements 
relating to the content of petitions and the situations that could cause the dismissal of 
the petition. Please explain wh ether the Ministry of Economic Affairs will provide notice 
to interested parties of the filing of a peti tion, make a public version of the petition 
available to interested parties for review, and provide opportunity for interested parties to comment on the petition. Please explain wh ether the petitioner would be expected to 
indicate if it is also seeking provisional sa feguard measures pending completion of the 
investigation, and if so, to state the type and amount of measure sought.  
 
Reply 
 
After the Commission decides to initiate an investigation, the Ministry of Economic Affairs will 
provide notice to interested parties of the filing of  a petition, make a public version of the petition 
available to interested parties for review, and provide the opportunity for interested parties to comment on the petition.  
Upon receipt of a petition, the investigating authority will confirm with the petitioner whether it is 
seeking a provisional safeguard measure, and if so will require that the petition include details of the type and amount of provisional measure being sought. 
 
Question 4  
Article 9.2, last paragraph, requires the Mi nistry of Economic Affairs to "immediately 
notify the petitioner and known interested pa rties in writing and give a public notice 
thereof" when it makes a decision on whether or not to institute an investigation. If the 
ministry does not announce that a petition wa s filed and does not disclose the contents 
to the public, please explain how the Minist ry will know who is a "known interested 
party" who must be notified.  
Reply 
 
The "known interested parties" are usually identified in the petition and will be notified accordingly. 
Furthermore, major exporting countries with representative offices in the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu, as well as the Committee on Safeguards at the WTO, will be notified of the decision. In addition , a public notice of initiation will indicate the 
registration methods for those wishing to participate in the investigation. 
 G/SG/Q1/TPKM/8 
 
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Question 5  Articles 13 and 20 of Chapter 3 (Investigation  Into Injury Caused To The Industry) of 
the Revised Rules discuss the process for a he aring to be held in conjunction with a 
safeguard investigation. Please clarify the following:  
a. How will notice be given to parties in ad vance of the date set for each hearing, 
and how far in advance will this notice be  given in order to provide "reasonable 
public notice" as stipulated in Article 3.1 of the WTO Agreement on Safeguards? 
b. Will parties which present information orally  at hearings be required to provide 
that same information in writing following  the hearing so that other interested 
parties have access to the informatio n presented during the course of a 
hearing? 
Reply 
 
a. A written notice of hearing will usually be sent to interested parties by mail or facsimile 
at least two weeks in advance of the date set for a hearing.  
b. Up to now, parties that have presented information orally at hearings were not required 
to provide that same information in writing following the hearings because verbatim  
records were made by the investigating authority. Interested parties have access to 
these verbatim  records.  
 
Question 6 
 
Article 16 bis of the Revised Rules addresses th e issue of provisional safeguard 
measures. Please explain the procedures that will be followed in making such 
determinations, including: 
 
a. Whether the Commission will automatically make critical circumstances 
determinations in all safegu ard investigations or only when requested to do so 
by the petitioner; 
b. Whether public notice will be provided of the intent to make a determination 
and the timing; and 
c. Whether interested parties will be provid ed with an opportunity provide views 
and information and to be heard.  
Reply 
 
a. The Commission usually makes critical circumstances determinations only when 
requested to do so by the petitioner. As mentioned in the answer to Question 3, upon receipt of a petition, the Commission will confirm with the petitioner whether it is 
seeking a provisional safeguard measure. 
b. Since the notice of initiation of a safeguard case includes information on whether a 
provisional safeguard measure is being sought  by the petitioner, no additional public 
notice will be provided on the Commission's intent to make such a determination. The 
timing of the determination is stipulated in Article 16bis of the Revised Rules. 
c. Once an investigation is initiated, interested parties will be given the opportunity to 
provide views and information, and to be heard on any related matters, including 
provisional measures, during the period of the safeguard investigation.  G/SG/Q1/TPKM/8 
 
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  Question 7 
 In addition, in Article 16 bis, last paragraph, please explai n what is meant by the phrase 
"When the Ministry of Economic Affairs gives a public notice that the market disruption 
does not exist." The term "market disrupti on" does not appear elsewhere in this 
context.   
Reply 
 
The phrase "market disruption does not exist" is an erroneous translation of the text. The correct 
translation should be "injury determination proved negative". 
 
Question 8  
Articles 16 bis and 22 of the Revised Rules discuss the imposition of provisional and final 
measures, respectively. However, Article 16 bis of the Revised Rules seems to require 
the approval of the Executive Yuan prior to  imposition of a measures, while Article 22 
requires that the Ministry of Economic Affair s gives public notice of final decision and 
presents that final decision to the Executiv e Yuan for recordal. Pl ease explain whether 
the Executive Yuan has any decision-making authority in the course of a safeguard 
investigation and, if so, whether Executiv e Yuan can amend the level of measures 
recommended in any way. 
 Reply 
 The Executive Yuan's decision-making authority varies according to the particular form of safeguard measures involved. 
 
With respect to safeguard measures that take the form of tariff adjustments, including provisional 
and final safeguard measures, Article 16 bis and Article 22 of the Revised Rules, together with 
Article 72 of the Customs Act of the Separate Cu stoms Territory of Taiwan, Penghu, Kinmen and 
Matsu, require that the decision to take such measures be submitted to the Executive Yuan for 
approval, which means that the Executive Yuan has the authority to amend, if it so wishes, the 
level of the safeguard measures. 
 
With respect to safeguard measures that take the form of import quotas, or adjustment measures or assistance, Article 22 of the Revised Rules requires that the decision to take such measures be 
submitted to the Executive Yuan for recordal, whic h means that the Executive Yuan does not have 
the authority to amend the level of the safeguard measures.  Question 9 
 
Article 19 of the Revised Rules appears to pr ovide a different test and procedure in the 
case of an investigation involving a perishab le agricultural product. In this regard: 
 
a. Please explain what is meant by the phra se "where the serious injury would be 
difficult to cure if relief measures are not adopted in time," including whether 
this phrase only relates to the decision on whether to initiate an investigation, 
to a determination of critical circumstan ces, or to a final determination, and 
how this test is consistent with Chin ese Taipei's obligations under the WTO 
Agreement on Safeguards;  
b. Please explain whether such a decision would be made at the request of the 
petitioner or by the Ministry on its own volition;  
c. Please explain what is meant by the term  "perishable agricultural product" and 
please identify the factors or definitions that would considered in defining such 
a product; and 
d. Please identify what body comprises th e "central agricultural authority" and 
describe how it makes its decisions, in cluding whether it provides opportunity G/SG/Q1/TPKM/8 
 
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  for interested parties, including import ers and foreign producers, to provide 
information and views, as well as the opport unity to appear at a public hearing.  
Reply 
 
a. The phrase in Article 19 of the Revised Rules "where the serious injury would be difficult 
to cure if relief measures are not adopted in time" relates to initiation and final determination within a shorter timeframe, due to the particular characteristics of 
perishable agricultural products. This does not pertain to the determination of critical 
circumstances or provisional safeguard measures, which are governed by Article 16 bis.  
Nothing in the Agreement on Safeguards prevents Members from adopting a shorter 
timeframe for investigations dealing with perishable agricultural products, and Article 19 
of the Revised Rules will be applied in a manner consistent with the Agreement on 
Safeguards. 
b. Such a decision would usually be made at the request of the petitioner. 
c. The term "perishable agricultural product" shall be determined by the central agricultural 
authority on a case-by-case basis. The term usually applies to fresh fruits and fresh vegetables of every kind and character.  
d. The "central agricultural authority" comprises the Council of Agriculture, Executive Yuan. 
This body makes decisions on whether a product qualifies as a "perishable agricultural product" on a case-by-case basis. However, it is not the Council of Agriculture but the Investigating Authority that conducts investigations involving perishable agricultural 
products. As we answered in Question 6c, once an investigation is initiated, interested 
parties will be given the opportunity to provide views and information, and to be heard on any related matters, including "perishable agricultural products", during the period of 
the safeguard investigation.  
Question 10 
 
Article 20 of the Revised Rules provides that the Commission "shall notify the petitioner 
of the injury decision in writing and give  a public notice thereof." Please explain 
whether other interested parties, including importers and foreign pr oducers, will also be 
given written notice at the same time as the petitioner. 
 
Reply 
 
This is an erroneous translation of the text. Arti cle 20 of the Revised Rules requires that both the 
petitioner and known interested parties (including importers and foreign producers) be given 
written notice of the decision at the same time. 
 
Question 11  Article 20 also states that with regard to the recommendation not to impose final 
measures "…if the Ministry of Economic A ffairs does not find its [the Commission's] 
recommendation acceptable, the Ministry of Economic Affairs shal l promptly order the 
Commission to hold a hearing within 30 days on the import relief measure measures to 
be adopted…" Articles 24 and 26 of the Revi sed Rules contain similar language. Please 
clarify under what criteria the Ministry of Economic Affairs may not accept the 
Commission's recommendation and may instea d hold a hearing on the import relief 
measures to be adopted or may choose  to extend a safeguard measure. 
 Reply 
 
The Ministry of Economic Affairs decides on whether to accept the Commission's recommendation 
on a case-by-case basis, considering all relevant factors including those listed in Article 23 of the Revised Rules. It should be noted that, up to this moment in time, no such recommendation has 
ever been submitted to the Ministry of Economic Affairs. 
 G/SG/Q1/TPKM/8 
 
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  Question 12 
 Articles 20, 24, and 26 of the Revised Rules a ll indicate that the Mi nistry of Economic 
Affairs "shall promptly" give public notice of a determination relevant under each 
specific article. Please explain the meanin g of the term "promptly" and identify an 
approximate period of time for the relevant public notices. 
 
Reply 
 
The meaning of the term "promptly" as referred to  in the Revised Rules is "without undue delay". 
 
The approximate period of time within which the rele vant public notice will be given is usually not 
expected to exceed 10 days.  
Question 13 
 Article 22 of Chapter 4 (Import Relief) of th e Revised Rules states "{t}he Ministry of 
Economic Affairs may (emphasis added), if  necessary, notify and consult with the 
interested countries before making the decisi on referred to in the preceding paragraph." 
Please confirm that adequate opportunity will  be provided "for prior consultations with 
those Members having a substantial interest as exporters of the product concerned…" as 
required by Article 12.3 of the WTO Agreement on Safeguards. 
 Reply 
 We confirm that adequate opportunity will be prov ided "for prior consultations with those Members 
having a substantial interest as exporters of the product concerned", as required under Article 12.3 
of the Agreement on Safeguards. 
 Question 14  
Article 24 of the Revised Rules states that in terested parties may request termination or 
modification of the relief me asures if the reason for the measures ceases to exist or 
there is a change in circumstances. Please explain whether the term "interested parties" 
includes importers and foreign producers, th e nature of the reasons and evidence they 
must include in their request, the nature  of the investigation the Commission will 
conduct, including the time for completing the investigation, and whether it will hold 
hearings and provide interested parties wi th an opportunity to appear and provide 
information and views.   Reply 
 Article 5 bis of the Revised Rules defines the term "interested parties" as including importers and 
foreign producers. 
 
Interested parties must include in their request sp ecific reasons and evidence substantiating their 
positions.  
 
The nature of the investigation the Commission will conduct in that case is the same as that provided in Chapter III.  
Question 15 
 Please confirm that any extension of safegu ard measures under Article 25 of the Revised 
Rules will continue to be liberalized as requ ired under Article 7.4 of the WTO Agreement 
on Safeguards.  G/SG/Q1/TPKM/8 
 
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  Reply 
 
Any extension of safeguard measures under Article 25 of the Revised Rules will continue to be liberalized, in a manner consistent with Arti cle 7.4 of the Agreement on Safeguards, which 
provides that an extended safeguard measure "should continue to be liberalized." 
 
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