WORLD TRADE  
ORGANIZATION  G/ADP/Q1/TPKM/6 
G/SCM/Q1/TPKM/6 8 October 2007 
 
(07-4282) 
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 Questions Posed by the EUROPEAN COMMUNITIES1 and the UNITED STATES2 
Regarding the Notification of THE SEPARATE CUSTOMS TERRITORY  
OF TAIWAN, PENGHU, KINMEN AND MATSU3 
 
  The following communication, dated 3 May 2007, is being circulated at the request of the 
Delegation of the Separate Customs Territory  of Taiwan, Penghu, Kinmen and Matsu.   
 
_______________ 
 
 
REPLIES TO QUESTIONS POSED BY  THE EUROPEAN COMMUNITIES 
 
Question 1 
 
 Article 7.4 (4):  Could Chinese Taipei please clarify which criteria the investigating 
authorities would apply in deciding whether the applicant has a good reason for not being able to submit the information of the most recent thre e years relating to the injury to the domestic 
injury, and provide examples?    
Response
 
 
 Whether the applicant has a good reason for not being able to submit the injury information 
for the most recent three years is evaluated on a case-by-case basis.  One good example would be in a 
situation where the domestic industry has been producing the product at issue for less than three years.   
 Question 2   Article 16:  Could Chinese Taipei clarify what type of considerations the investigating 
authority would take into account in assessing the influence of the case on the overall economic 
interests of the country?   
 Response
 
  Factors taken into account in assessing the influe nce on the overall economic interests of the 
country vary from case to case.  Factors which have  been considered in previous cases include the 
impact of anti-dumping duties on the production cost s, profitability and employment of the up-stream 
and down-stream industries, as well as of the domestic industry producing the product in question.  
                                                     
 
1 G/ADP/Q1/TPKM/1 - G/SCM/Q1/TPKM/1.   
2 G/ADP/Q1/TPKM/2 - G/SCM/Q1/TPKM/2.   
3 G/ADP/N/1/TPKM/1 - G/SCM/N/1/TPKM/1.   G/ADP/Q1/TPKM/6 
G/SCM/Q1/TPKM/6 Page 2 
 
 
  Other factors previously considered are the impact of anti-dumping duties on the price of the end 
product, consumer choice, and te rms of trade and competition conditions in the market.   
 
Question 3 
 
 Article 18 provides that "Where necessary fo r the investigation and determination of 
the case, the authorities concerned shall extend  the respective period as set forth in the 
Regulations up to one half of the respective peri od".  Could Chinese Taipei please explain to 
what respective period this provision refers?    
Response
 
 
 The "respective period" set forth in Article 18 refers to the time limits for preliminary dumping and injury determination as provided in Ar ticle 12, and the time limits both for the final 
dumping and injury determination as provided in Article 14.  If necessary, these periods may be 
extended by up to half of the length of the original periods.   
 
Question 4 
 
 How is the respect of Articles 8.3 and 8.5 ADA ensured?    
Response
 
 
 Articles 8.3 and 8.5 of the Anti-dumping Agreement are incorporated into the application of "Regulations Governing the Im plementation of the Imposition of  Countervailing and Anti-Dumping 
Duties" via Article 48 of the said Regulations.  In addition, Article 23 of th e said Regulations requires 
that price undertaking offered by expor ters is subject to examination by  the responsible authorities.  In 
the event that a price undertaking is  rejected, the responsible authoriti es will inform the applicants of 
the reasons for the rejection, and will give them  an opportunity to make comments thereon.   
 
Question 5 
 
 When comparing the amended Regulations with their previous version 
(G/ADP/N/1/TPKM/1), the EC notes that many  comments made by WTO Members on the 
Regulations in their previous version have not been taken into account.  The EC regrets that 
Chinese Taipei has not used the current amendmen t as an opportunity to add or clarify the 
provisions concerned, or to align them with the ADA.    
 In the light of this, the EC would like to raise also the following questions:   
 
• The EC notes that Article 36.2 does not require that the price undercutting, price 
depression or suppression is significant.   Could Chinese Taipei please confirm that 
Article 36.2 should nevertheless be understood as requiring significant price 
undercutting or price depression or suppression, in accordance with Article 3.2 ADA?   
 Response
 
  Although the word "significant" as provided in Article 3.2 of the Anti-dumping Agreement is 
not duplicated in Article 36.2 of the said Regulati ons, in practice, the requirement for the level of 
price depression or suppression to be 'significant' is  always observed.  This WTO obligation, and any 
other obligations as required under the Antidumping Agreement are already incorporated into our 
Regulations through the enactment and applica tion of Article 48 of the said Regulations.    G/ADP/Q1/TPKM/6 
 G/SCM/Q1/TPKM/6 
 Page 3 
 
 
  • Could Chinese Taipei please explain how the appl ication of Article 3.5 ADA is ensured?   
 
Response  
 
 Article 3.5 of the Anti-dumping Agreement is pa rtially reflected in Article 36 of the said 
Regulations.  This is supplemented by the reference to Article 3.5 of the ADA through the application 
of Article 48 of the same Regulations.  In practice, every single final determination always covers the 
analysis of causal linkage between the dumped imports  and the injury as well as the analysis of factors 
other than the dumped imports which are at the sa me time injuring the domestic industry, as required 
under the Agreement.    
• How is transparency, in particular with re gard to access to the non-confidential file, 
hearings, and disclosure ensured in the absence of provisions corresponding to Article 6.1.2, 6.2, 6.3, 6.4 and 6.9 ADA?   
 Response
 
  Articles 6.1.2, 6.2, 6.3, 6.4 and 6.9 of the Anti-dumping Agreement are incorporated into the 
"Regulations Governing the Im plementation of the Imposition of  Countervailing and Anti-Dumping 
Duties" through the application of Ar ticle 48 of the said Regulations.   
 
 The non-confidential information submitted by  interested parties or collected by the 
responsible authorities will be provided to in terested parties in stages as follows:   
 
 (i) Upon the initiation of the investigation, the public version of the application will be 
sent directly to the parties involved, and w ill also be available on the website of the 
responsible authorities.   
 (ii) Exporters are required to submit both confidential and non-conf idential versions of 
questionnaire responses to the responsible authorities.  The public version will be 
open to viewing by interested parties.   
 (iii) Before the final determination, the responsible authorities will provide interested 
parties with a non-confidential version of in formation that they have collected and 
verified during the investigation.   
 (iv) Both preliminary determinations and fi nal determinations will,  again, be sent to 
relevant parties directly, and will also be available on the website of the responsible 
authorities.   
 
• Can Chinese Taipei please confirm that prio r agreement of the firm concerned and the 
government of the Member concerned will be so ught for an on spot investigation, in 
accordance with Article 6.7 ADA?   
 Response
 
  It is confirmed that each and every one of our on-site verifications  is conducted on the 
conditions that:   
  (i) prior agreement is obtained from the firms concerned, and  
 (ii) no disagreement is expressed by the government of the Member concerned.   G/ADP/Q1/TPKM/6 
G/SCM/Q1/TPKM/6 Page 4 
 
 
  • Article 34:  Where sampling is applied, are exporters, producers or importers concerned 
consulted in line with Article 6.10.1 ADA?   
 Response
 
  Sampling is always conducted with the coope ration of the exporters.  Where sampling is 
applied, several top exporters, accounting for the larg est percentage of imports of the product at issue 
into our territory, will be selected.  This practice is in line with Article 6.10.1 of the ADA.  In 
addition, we have received no complaints fro m anyone in our past investigations.   
 
• How does Chinese Taipei ensure that provision is made for a prompt refund of duties 
paid in excess of the margin of dumping, in accordance with Article 9.3.2 ADA?   
 
Response
 
 
 Article 9.3.2 of the Antidumping Agreement is, again, enacted by Article 48 of the said 
Regulations.  In practice, the refund of any excess duty paid is conducted upon request by the 
exporters concerned.  If the authorities decide that  the duty paid does indeed exceed the margin of 
dumping, a refund shall be provided to the exporters  concerned.  To date, however, no such requests 
have been brought up.   
 
 
REPLIES TO QUESTIONS POSED BY THE UNITED STATES 
 
Question 1 
 
 Please clarify whether the Customs Act has been notified to the Committee on 
Antidumping Practices (the Committee).  If not, wh en will Chinese Taipei notify this legislation, 
in accordance with Article 18.5 of Agreement on  Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 (the Agreement)?    
Response
 
 
 The Customs Act was notified to the Committee on 2 May, 2002 under WTO documents G/SCM/N/1/TPKM/1 and G/ADP/N/1/TPKM/1.  The current  version of this Act is also available on 
our web-site:  http://www.mof.gov.tw/engweb/ct.asp?xItem=25373&ctNode=684&mp=2
.   
 Question 2   Please clarify whether the statement "relevant acts and regulations" in Article 2 of the 
notified regulations refers only to paragraph 4 of Article 69 of the Customs Act.  If other acts or 
regulations govern the conduct of Chinese Ta ipei's antidumping and countervailing duty 
actions, please identify such legislation and indi cate when it was notifi ed to the Committee, in 
accordance with Article 18.5 of the Agreement.    
Response
 
 
 We confirm that "relevant acts and regulations" in Article 2 of the notif ied regulations refers 
only to paragraph 4 of Article 69 of the Customs Act.    G/ADP/Q1/TPKM/6 
 G/SCM/Q1/TPKM/6 
 Page 5 
 
 
  Question 3 
 
 Several articles of the notified regulations specify that public notices will be issued by 
the administering authorities.  Please identify  the publications or other media in which public 
notices will be made and how the notices w ill conform to the transparency and public 
notification provisions embodied in Articles 6 and 12 of the Agreement.    
Response
 
 
 Articles 6.1.2, 6.2, 6.3, 6.4 and 6.9 of the Anti-dumping Agreement are incorporated into the "Regulations Governing the Im plementation of the Imposition of  Countervailing and Anti-Dumping 
Duties" through the application of Ar ticle 48 of the said Regulations.   
  The non-confidential information submitted by interested parties or collected by the 
responsible authorities will be provided to in terested parties in stages as follows:   
  (i) After the investigation is initiated, the public version of the application will be sent 
directly to the parties involved, and will also be available on the website of the 
responsible authorities.   
  (ii) Exporters are required to submit both confidential and non-conf idential versions of 
questionnaire responses to the responsible authorities.  The public version will be 
open to viewing by interested parties.   
 
 (iii) Before the final determination, the responsible authorities will provide interested 
parties with a non-confidential version of in formation that they have collected and 
verified during the investigation.   
 
 (iv) Both preliminary determinations and fi nal determinations will,  again, be sent to 
relevant parties directly, and will also be available on the website of the responsible 
authorities.   
 Question 4   Please describe the circumstances under wh ich an antidumping or countervailing duty 
investigation would be initiated by "referral of other government agencies", as described in 
Article 2 of the notified regulations, and explain how such an initiation would be consistent with Article 5.6 of the Agreement and Article 11.6 of the Agreement on Subsidies and Countervailing 
Measures.    
Response
 
 
 Referrals made by other government agencies ar e treated as the initial stage that could lead to 
ex officio investigations.  The requirements to make  a successful referral, therefore, are the same as 
those provided under Article 5.6 of the Antidumpi ng Agreement, and under Article 11.6 of the SCM 
Agreement.  That is, the agencies making the re ferral shall provide the responsible authorities 
sufficient prima faci  evidence illustrating dumping, or subsidies for SCM cases, injury and causal 
links that can justify the initiation of an investigation.   G/ADP/Q1/TPKM/6 
G/SCM/Q1/TPKM/6 Page 6 
 
 
  Question 5 
 
 Please indicate whether the International Trade Commission will be revising its Rules 
for Handling Import Cases in light of the notified  regulations, and if so, when Chinese Taipei 
expects to notify such new rules to the Commi ttee pursuant to Article 18.5 of the Agreement.   
 
Response
 
 
 There will be no accompanying revision to  the Rules for Handling Import Relief Cases 
because the modifications made under the current notif ication will not affect its application under the 
safeguard investigations.   
 
Question 6 
 
 Article 5 of the notified regulations also states, "the term "like product" shall be 
interpreted to mean a product which is identical to, or composed of the same materials and is of 
the same characteristics or features as the im ported subject product …" (emphasis added).  
What is the legal difference between the two alternative like product standards set forth in Article 5 of the notified regulations?   
 
Response
 
 
 There is no legal difference between the two a lternative like-product standards with respect to 
the antidumping and countervailing dut y investigations.  This Article  is enacted in accordance with 
Article 2.6 of the Antidumping Agreement.   
 
Question 7 
 
 Article 8 of the notified regulations suggests that the "Tariff Commission" must 
approve the initiation of antidumping and count ervailing duty proceedings.  Please explain in 
detail the role of the Tariff Commission in Chin ese Taipei's administration of antidumping and 
countervailing duty actions and the extent of the Tariff Commission's authority to approve, 
reject or modify decisions made by the Mini stry of Finance (MOF) and the Ministry of 
Economic Affairs (MOEA).    
Response
 
 
(i) The Tariff Commission is a task force subor dinated to the MOF.  This Commission is 
composed of 12 members, who are the chiefs or  the deputies of related government agencies 
or are scholars or experts in the field of anti-dumping or subsidy.  The Commission is chaired 
by the Vice Minister of Finance.   
 
(ii) The findings of dumping by the MOF and the findings of injury by the MOEA shall be 
submitted to this Commission for overall consid eration and determination.  This Commission 
has the authority to make recommendations to  the MOF regarding whether to initiate or 
terminate investigations, and whether toimpo se or not to impose duties at the end of 
investigations.   
 
(iii) The Commission's recommendations shall be s ubject to the final approval of the MOF and if 
approved, will be published and put into force by this Ministry.    G/ADP/Q1/TPKM/6 
 G/SCM/Q1/TPKM/6 
 Page 7 
 
 
  Question 8 
 
 Are there any written provisions describing the nature of the investigation preceding the 
preliminary injury determination conducted by the MOEA described in Article 12 of the notified regulations?   
 
Response
 
 
 The nature of the investigation preceding the pr eliminary injury determination is the evidence 
collecting process to facilitate the investigating aut hority to make its prelim inary determination.  
There is no specific provision directly dealing with such  definition.  Reference is  nevertheless made to 
Articles 22 and 36 that both regulations shall a pply to both stages of preliminary and final 
determinations.    Question 9  
 Article 13 of the notified regulations indicates that parties will have opportunities to 
comment during the course of an antidumping or countervailing duty proceeding.  Please 
describe each of the options available to part ies to address comments to the administering 
authorities and when and in what fora such comm ents can be made, consistent with Article 6 of 
the Agreement and Article 12 of the ASCM.   
 Response
 
 (i) Upon the initiation of the investigation, the public version of the application will be sent to 
the parties involved, and will be published as well as be made available on the website of the 
responsible authorities.  Any comments at this stage shall be made directly to the Ministry of Finance.   
 
(ii) Exporters are required to submit both confid ential and non-confidentia l versions of their 
responses to those questionnaires issued by responsible authorities.  The public version will 
be open to viewing by interested parties.  Any comments at this stage shall be made directly 
to the MOF regarding dumping margins, and the MOEA regarding injuries.   
 
(iii) Before the final determination, the responsib le authorities will provide interested parties with 
a non-confidential version of information that they have collected and verified during their 
investigation.  Any comments at this stage sh all be made directly to the MOF and the MOEA 
respectively.   
 Question 10   Please describe the procedures by which the MOF and MOEA ensure that sufficiently 
detailed non-confidential versions of all informatio n submitted by parties, as well as all relevant 
information generated by the MOF and MOEA, a re made available to interested parties on a 
timely basis, as provided for under Articles 6.4 a nd 6.5 of the Agreement and Article 12.3 of the 
ASCM.    
Response
 
 
 MOF ensures the transparency principles as se t under Articles 6.4 and 6.5 of the Antidumping 
Agreement, as well as Article 12.3 of the SCM Agreement as follows:   
 G/ADP/Q1/TPKM/6 
G/SCM/Q1/TPKM/6 Page 8 
 
 
   The public version of the Application will be av ailable on the website of this Ministry upon 
initiation.   
 
(i) Responses provided by the companies involved will be required to provide two versions - 
public and non-public – where the former will be available to the applicants and the latter to 
interested parties.   
 (ii) Before final determination, investigating authorities shall provide a public version of those 
verified and investigated materials to be review ed by the applicants and the other interested 
parties.   
 
(iii) MOEA, in addition, ensures these transparency principles by offering the interested parties to 
access to the public version of all the informa tion gathered during the investigation.   
 Question 11  
 Article 15 of the notified regulations provides that an antidumping investigation will be 
terminated if the final dumping margin is "… less than two percent of the price of the like product imported from the country or countries of export or origin into this country…".  Please 
confirm that should a definitive antidumping me asure ultimately be imposed, that producers or 
exporters receiving an individual de minimis or zero margin will be excluded from the measure, 
consistent with Article 5.8 of the Agreement a nd the Appellate Body's report in Mexico -- Rice.
4   
 
Response  
 
 We confirm that the producers or exporters re ceiving an individual de minimis or zero margin 
will be excluded from a definitive anti-dumping measure.    Question 12   Please explain how the provision identified in Article 27.2 of the notified regulations is 
given effect.  Specifically, what is meant by "where  the subsidy is not granted on the basis of the 
quantity or production or exportation"?  How is the period of time determined for allocating 
the subsidy under this provision?    
Response
 
 
 Article 27 of the said Regulations is made with  reference to Annex 4 of the SCM Agreement.  
So far, we have no experience of investigating subs idy cases.  Should there be a subsidy investigation, 
the SCM Agreement will be followed and related international practi ces will be taken into account.   
 
Question 13 
 
 Article 28 of the notified regulations specifies that "… the price thereof shall not be considered as the normal value:  1.  where the cost or price is affected because of an association 
or compensatory arrangement between the pu rchaser and seller…".  Please explain how the 
normal value will be determined in situations  where such affiliated party transactions are 
disregarded as outside the ordinary course of trade in a manner consistent with Article 2.2 of 
the Agreement.   
                                                     
 
4 WT/DS295/AB/R, 29 November 2005.    G/ADP/Q1/TPKM/6 
 G/SCM/Q1/TPKM/6 
 Page 9 
 
 
  Response  
 
(i) Affiliated party transactions will not necessarily  be disregarded.  Such transactions will be 
used to calculate normal value, if they are f ound to be in the ordinary course of trade.   
 
(ii) Where affiliated party transactions are disreg arded and the remaining quantity is considered 
sufficient to represent domestic sales, as provided by footnote 2 of the Antidumping Agreement, the normal value will be calcula ted based on the data illustrated by those 
remaining transactions.   
 (iii) Where affiliated party transactions are disr egarded and there is no sufficient quantity for 
domestic sales as provided by footnote 2 of the Antidumping Agreement, the normal value 
will be constructed in accordance with Article 30 of the said Regulations, which is a replica of 
Article 2.2.2 of the Antidumping Agreement.   
 
Question 14 
 
Article 34 of the notified regulations states that Chinese Taipei may decline to determine 
individual margins where the number of produce rs or exporters is so large as to "affect" the 
investigation.  Please explain the manner in whic h the administering authorities will make such 
a determination, and in such cases, how they  will select which producers and exporters will 
receive individual margins, pursuant to Article 6.10 of the Agreement.  Please explain how the 
margin will be determined for producers or ex porters not afforded an individual margin in a 
manner consistent with Article 6.10 of the Agreement.   
 Response
 
 (i) Article 34 of the said Regulations is a duplicate of Article 6.10 of the ADA.  Where sampling 
is applied, several top exporters , accounting for the largest per centage of our imports, will be 
selected.   
 
(ii) The producers that are not sampled will be s ubject to "all others rate", which is based on the 
weighted average of the dumping margins of the sampled producers, excluding margins that 
are zero, de minimis, or based on facts availa ble, in accordance with Article 35 of the said 
Regulations.  This Article is a duplicate of Article 9.4 of the Antidumping Agreement.   
 Question 15   Article 6.9 of the Agreement and Article 12.8 of the ASCM require authorities to inform 
interested parties of the essential facts und er consideration prior to issuing a final 
determination.  How does Chinese Taip ei implement these requirements?   
 Response
 
 (i) The essential facts related to injury determina tion will be published by the International Trade 
Commission, MOEA (ITC).  Then the ITC will hol d a public hearing for interested parties to 
comment on these facts before the final injury determination.   
 
(ii) For the essential facts related to dumping determination, as well as the overall result of the 
investigation, a non-confidential version of in formation that the Ministry of Finance has 
collected and verified will be provided to interested parties for further comments.   G/ADP/Q1/TPKM/6 
G/SCM/Q1/TPKM/6 Page 10 
 
 
  Question 16 
 
 Article 13 of the Agreement and Article 23 of the ASCM require that Members 
maintain judicial, arbitral, or administrative review provisions pertaining to final determinations made by their investigating au thorities.  How does Chinese Taipei implement 
these requirements?    
Response
 
 
 The remedy provided by Article 13 of the Antidumping Agreement and Article 23 of the 
SCM Agreement is implemented in accordance with our Law of Administrative Appeals.  According 
to this Law, where an interested party disagrees with the final determinati ons related to anti-dumping 
or subsidy investigations, the party may appeal to  the higher office of the original governmental 
agency.  If he (she) still disagrees with the decision of this review, then he  (she) will be entitled to 
bring this matter to the Higher Administrative Court,  and finally to the Supreme Administrative Court 
for judicial review.   
 
 
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