WORLD TRADE
ORGANIZATIONG/ADP/Q1/TPKM/3
G/SCM/Q1/TPKM/3
25 October 2002
(02-5891)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  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 23 October 2002, has been received from the Permanent
Mission of Taiwan, Penghu, Kinmen and Matsu.
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Replies to Questions posed by the European Communities
Q1. The Implementation Regulation on the Im position of Countervailing and Anti-Dumping
Duties does not appear to include provisions concerning some essential rights of third parties in
an anti-dumping investigation, such as:
- access to evidence and information presented by other interested parties (cf.
Article 6.1.2, 6.3 and 6.4 of the Anti-Dumping Agreement);
Reply
(1) Implementing Article 6.1.2 of the Anti-Dumping Agreement:
Pursuant to Article 20 of the Implementation Regulation on the Imposition of Countervailing
and Antidumping Duties (see G/ADP/N/1/TPKM/1, hereinafter referred to as “the Regulation”), all
interested parties may request to see the information relevant to the antidumping investigation,
including non-confidential evidence presented as stipulated under Article 6.1.2 of the Anti-DumpingAgreement.
(2) Implementing Article 6.3 of the Antidumping Agreement:
Pursuant to Paragraph 3 of Article 19 of the Regulation, oral information provided should
subsequently be reproduced in writing.  All interested parties may request to see those written
information in accordance with Article 20 of the Regulation as mentioned above.
                                                     
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/1G/ADP/Q1/TPKM/3
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(3) Implementing Article 6.4 of the Antidumping Agreement:
Interested parties may request to see all information that is relevant to the presentation of their
cases in accordance with Article 20 of the Regulation as mentioned above.
- disclosure before a final determination is made (cf. Article 6.9 of the Anti-Dumping
Agreement);
Reply
Before a final determination is made on whether to apply definitive measures, written
notifications to applicants and all interested parties, as well as public notices shall all be made in
every stage regarding determinations on dumping and injury pursuant to Articles 13, 14 and 17 of the
Regulation.  Essential facts, as stipulated under Article 6.9 of the Anti-Dumping Agreement, are all
provided with in the relevant written notifications to the parties concerned and in the public notices.
- prior agreement of the firm and the Memb er State concerned for an investigation and
disclosure of the results (cf. Article 6.7 of the Anti-Dumping Agreement).  Could the
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu explain how
compliance with the aforementioned provisio ns of the WTO Anti-dumping Agreement is
ensured?
Reply
Though not directly specified in the Regulation, an on-site investigation to verify information
provided would be carried out only after we receive prior agreement of the firms and the Memberconcerned.  This obligation, as stipulated under Article 6.7 of the Anti-Dumping Agreement, is
implemented by applying Article 48 of the Regulation, which enables the investigating authorities to
refer directly to relevant provisions of the Anti-Dumping Agreement when there is no specific
provision prescribed in the Regulation.
Result of such investigations shall be included in the report of final determinations on
dumping and injury, which will also be included in relevant written notifications and public noticesmade pursuant to Article 14 of the Regulation.  In addition, interested parties may request to see all
information that is relevant to the presentatio n of their cases, including the result of on-site
investigations in accordance with Article 20 of the Regulation as mentioned above.
Q2. Could the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu explain
how the application of the requirements of Ar ticle 3.5 of the Anti-Dumping Agreement is
ensured?
Reply
Subparagraphs 1 to 3 under Article 37 of the Regulation already provide detailed factors to be
considered when determining whether the dumped imports are causing injury to the domestic
industry.  Factors other than dumping imports that cause injury to the domestic industry would also be
examined in accordance with Article 3.5 of the An ti-Dumping Agreement, as authorized by Article 48
of the Regulation.
Q3. Article 21, second paragraph of the Implementation Regulation provides that the
authority concerned should disregard informatio n where the request for confidentiality is not
warranted or where the non-confidential summar y is not provided.  Could such information inG/ADP/Q1/TPKM/3
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accordance with Article 6.5.2 of the Anti-Dumping Agreement nevertheless be used, when it can
be demonstrated from appropriate sources that it is correct?
Reply
Pursuant to Paragraph 2, Article 21 of the Regulation, the investigation authorities “may” - a
better translation than the “should” used in our notification - disregard information where the request
for confidentiality is not warranted or where the non-confidential summary is not provided.  In
practice, when it is demonstrated from other sources that the information provided is correct, the
authorities would nevertheless take the information into consideration.  The application of that
provision is in conformity with Article 6.5.2 of the Anti-Dumping Agreement.
Q4. Article 31.1 and 31.3 of the Implementation Regulation do not refer to the use of data
for the same general category of products, as foreseen by Article 2.2.2 of the Anti-Dumping
Agreement. Could the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu
explain how this provision is to be applied?
Reply
Even though Article 31 has never been invoked in previous investigations initiated by our
authorities so far, we do recognize discrepancy on wordings between Subparagraph 1, Article 31 ofthe Regulation and Item (i), Article 2.2.2 of the Anti-Dumping Agreement.  That provision is meant to
be applied to cases where data would be collected from the same general category of products.  And
the authorities will conduct their investigations, where appropriate, in accordance with Article 2.2.2 of
the Anti-Dumping Agreement directly.
Q5. Could the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu explain
how the application of the requirement of Article 7.3 of the Anti-Dumping Agreement is
ensured?
Reply
Provisional measures can be applied only after the relevant authorities made their preliminary
determinations on dumping and injury.  In principle, Ministry of Economic Affairs will spent no more
than 40 days to make preliminary determination on injury, and  Ministry of Finance will spent no
more than 70 days to make preliminary determination on dumping thereafter.  Please refer to
Articles 12 and 13 of the Regulation.  In practice, the investigating authorities have always used up
most of the 110 maximum days.  In any events, the investigating authorities will abide by the 60minimum days as required by Article 7.3 of the Anti-Dumping Agreement.
Q6. The Implementation Regulation does not appear to contain the equivalent of Article
9.3.1 or 9.3.2 of the Anti-Dumping Agreement.  How would the application of these provisions
be ensured?
Reply
Though not specified in the Regulation, the amount of the anti-dumping duties is assessed on
a prospective basis, as illustrated in Article 9.3.2 of the Anti-Dumping Agreement.  Paragraph 2,Article 64 of the Customs Law stipulates that th e antidumping duties levied shall not exceed the
dumping margin of the imported goods.  Therefore, any duties paid in excess would be refunded upon
application to the Ministry of Finance.  Even though time periods for refund process are not stipulatedG/ADP/Q1/TPKM/3
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in the Regulation, the investigating authorities will follow those time limits as set up in Article 9.3.2
of the Anti-Dumping Agreement.
Q7. Could the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu confirm
that, for the purpose of the inju ry determination, Article 37.2 of the Implementing Regulation
should be understood as referring to a “significant” price undercutting or price depression?
Reply
It is confirmed that, for the purpose of the injury determination, Subparagraph 2, Article 37 of
the Regulation refers to “significant” price undercutting and “significant” price depression, as
stipulated in Item (iii), Article 3.7 of the Anti-Dumping Agreement.
Q8. Could the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu explain
the procedure(s) for judicial review of anti-dumping determinations?
Reply
Determinations made by the investigating authorities can be appealed by any interested
parties to the Administrative Court, which is a body of the judicial branch.  This independent judicial
review mechanism is in conformity with Article 13 of the Anti-Dumping Agreement.
Replies to Questions posed by the United States
Q1. The United States thanks Chinese Taipei for its recent notification of its anti-dumping
law and  regulations.  With regard to its notification:
• Has Chinese Taipei issued any procedures concerning antidumping proceedings,
apart from those included in the above no tification?  If so, when does Chinese
Taipei intend to notify these to the Committee?
Reply
No.  We have not issued any antidumping procedures other than the Implementation
Regulation on the Imposition of Countervailing and Anti-Dumping Duties as notified in document
G/ADP/N/1/TPKM/1 (hereinafter referred to as “the Regulation”).
• Article 23 of the “Implementation Regulation on the Imposition of
Countervailing and Anti-Dumping Duti es” (“Implementation Regulations”)
references “Rules Handling Import Relief Cases”.  What is the nature of these
rules?  Has Chinese Taipei notifi ed these rules to the Committee?
Reply
“Rules Handling Import Relief Cases” is our legislation on safeguard measures.  That
legislation has been notified to the Safeguard Committee in G/SG/N/1/TPKM/1.  The procedures for
investigation on injury in safeguard cases also apply, mutatis mutandis , to antidumping cases.G/ADP/Q1/TPKM/3
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• Article 4 of the Implementation Regulati ons refers to Article 5 of the Customs
Law to define the “duty-payer” responsible for paying antidumping duties.
However, Article 5 of the Customs Law does not appear to have been included in
the above notification.  Has Chinese Taipei notified this article, and if not, when
will it do so?
Reply
Article 4 of the Regulation simply says that whoever pays duties on imported goods shall be
responsible to pay for the antidumping duties.  Article 5 of the Customs Law, as referred to by
Article 4 of the Regulation, defines persons responsi ble for paying duties which, we believe, has little
relevancy in anti-dumping investigations.
Q2. Please explain the status of the Custom s Law and the Implementation Regulations
under Chinese Taipei’s legal system.  Does th e Implementation Regulations have the same
status as the Customs Law?  Are the Implemen tation Regulations binding on the Ministry of
Finance (MOF) and the Ministry of Economic Affairs (MOEA)?
Reply
The Regulation is enacted in accordance with the Customs Law (Please refer to Article 1 of
the Regulation).  The Customs Law, therefore, has higher status than the Regulation.  The Regulationis binding on both Ministry of Finance and Ministry of Economic Affairs.
Q3. Article 3 of the Customs Law and Article 8 of the Implementation Regulations indicate
that a Tariff Commission will be formed to “study and review matters relating to the
amendment of the Customs Import Tariff and th e levy of special customs duty”.  Please explain
the circumstances under which such Commissions are formed, the duties of the Commission
and under whose auspices the Commission will act.
Reply
The Tariff Commission is a standing body established in accordance with Paragraph 2,
Article 3 of the Customs Law.  The Commission c onsist of government officials and experts and/or
scholars, including Vice Minister of Finance (as the Chairperson), Vice Minister of Economic Affairs,
Vice Chairperson of Council of Agriculture, Director -General of Board of Foreign Trade, Director-
General of Industrial Development Bureau, Director-General of Directorate-General of Customs,
Director-General of Department of Customs Administration and, in addition, 4 to 6 experts/scholars.
The mandates of the Commission are to discuss issues relating to tariff schedule amendments,application of ant-dumping and countervailing measures and other major tariff policies.  The
Commission will provide its advisory opinion to the Ministry of Finance for final approval.
Q4. Does the final sentence of the second paragraph of Article 5 of the Implementation
Regulations mean that Chinese Taipei will automa tically exclude from the domestic industry all
domestic producers that import or export the product under investigation or are related to
importers or exporters?
Reply
Paragraph 2, Article 5 of the Regulation provides the possibility to exclude from domestic
industry all domestic producers that import or export the product under investigation, or are related to
importers or exporters.  A better translation of the said provision would be that, in appropriateG/ADP/Q1/TPKM/3
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circumstances, producers who import or export the products in question “may be excluded” from the
scope of domestic industry under investigation.
Q5. Please confirm that Chinese Taipei’s application of provisional measures, as described
in Article 13 of the Implementation Regulations, will be consistent with ADA Article 7.
Reply
Article 13 of the Regulation is a combination of Articles 7 and 12 of the Anti-Dumping
Agreement.  Although Article 7.3 of the Anti-Dumping Agreement is not directly mentioned, the
application of Article 13 of the Regulation will nevertheless be adhered to the Anti-DumpingAgreement.  Provisional measures can be applied only after the relevant authorities made their
preliminary determinations on dumping and injury.  In principle, Ministry of Economic Affairs will
spent no more than 40 days to make preliminary determination on injury, and  Ministry of Finance
will spent no more than 70 days to make preliminary determination on dumping thereafter.  Please
refer to Articles 12 and 13 of the Regulation.  In practice, the investigating authorities have alwaysused up most of the 110 maximum days.  In any events, the investigating authorities will abide by the
60 minimum days as required by Article 7.3 of the Anti-Dumping Agreement.
Q6. Article 6 of the Implementation Regulati ons says that other legal organizations may
apply for the imposition of an anti-dumping dut y.  Please clarify what types of organizations
would be considered “other legal organizations” for purposes of this article.
Reply
In addition to the producers, the related commercial associations, the related industrial
associations, the related labour associations, the related agricultural associations, Article 6 of the
Regulation also list “other legal  organizations” to be eligible to apply for antidumping investigation,
as long as they can identify their representative of the industry.  In practice, there has not been any
“other legal  organizations” identified in previous anti-dumping investigations.
Q7. Please explain how the current legal regime will ensure that petitions contain sufficient
evidence of dumping, injury and causation to comply with Article 5.2 of the ADA.
Reply
Article 7 of the Regulation illustrate “sufficient materials” to be provided when applying for
anti-dumping investigation.  Substantive criteria as prescribed under Article 5.2 of the Anti-DumpingAgreement, if not covered under Article 7 of the Regulation, would also have direct application as
authorized by Article 48 of the Regulation.  Pursuant to Subparagraph 2, Paragraph 1, Article 8 of the
Regulation, application with insufficient evidence will be rejected.
Q8. Please clarify how Chinese Taipei will identify the universe of respondent firms to be
investigated.  Article 17.1(5) of the Implementa tion Regulations suggests that response to a
published notice of initiation may be necessary, whereas Article 19 of the Implementation
Regulations suggests that parties will be asked to respond to a questionnaire delivered to them.
Reply
In anti-dumping investigations, notice of init iation will be delivered to those defendants
pointed out by the applicants.  In addition, relevant information will also be announced in the public
notice in which all others are welcomed to identify themselves, where appropriate, as defendants orG/ADP/Q1/TPKM/3
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interested parties.  Pursuant to Subparagraph 5, Paragraph 1, Article 17 and Article 19 of the
Regulation, defendants originally identified upon initiation as well as self-identified defendants in a
later stage will all be served with questionnaires.  This practice is in conformity with Articles 6.2 and
12.1.1 of the Anti-Dumping Agreement.
Q9. Under Article 19(4) of the Implementati on Regulations, the authority may “where
necessary, notify the applicant or the known in terested parties to present their opinions, or
accept the requests with reasons made by the applic ant or the interested parties to express their
opinions”.  What restrictions, if any, are placed on  interested parties’ right to present views and
defend their interests as provided for in Article 6.2 of the ADA?
Reply
In addition to the known interested parties to the investigation, all other self-identified
interested parties can approach the investigating authorities and request to present their views and
defend their interests.  In practice, all such requests have been accepted and opportunities for theirpresentation were all provided, which is in compliance with Article 6.2 of the Anti-Dumping
Agreement.
Q10. What provision does Chinese Taipei ma ke for public access to the non-confidential
portions of the record of the investigations?
Reply
Pursuant to Article 20 of the Regulation, all interested parties may request to see the
information relevant to the anti-dumping investigation, including non-confidential evidence presentedas stipulated under Article 6.1.2 of the Anti-Dumping Agreement.  In addition, general public can
access to non-confidential information in government archive in accordance with relevant provisions
under the Administrative Procedure Code and the Rules for Access to Administrative Information.
Q11. How will Chinese Taipei ensure that, in accordance with Art. 6.8 of the ADA, the
provisions of Annex II to the ADA will be observed?
Reply
Pursuant to Paragraph 2, Article 21 of the Regulation, the investigating authorities “may” -- a
better translation than the “should” used in our notification -- disregard information where the request
for confidentiality is not warranted or where the non-confidential summary is not provided.  Inpractice, when it is demonstrated from other sources that the information provided is correct, the
authorities would nevertheless take the information into consideration.  Procedures prescribed under
Article 6.8 and Annex II of the Anti-Dump ing Agreement are always adhered to.
Q12. Article 3.4 of the ADA states that no one or several of the factors pertaining to impact
specified in these provisions shall necessarily gi ve decisive guidance.  How does Chinese Taipei
implement this concept with respect to the impa ct factors specified in Article 37(3) of the
Implementation Regulations?
Reply
Pursuant to Article 3.4 of the Antidumping Agr eement, and in practice, none of the relevant
factors listed under Subparagraph 3, Paragraph 1, Article 37 of the Regulation shall give decisive
guidance.G/ADP/Q1/TPKM/3
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Q13. Please explain the meaning of  Article 40(1) of the Implementing Regulations.  Does this
mean that imports from countries which are subject to termination under Article 15 are not
subject to cumulation?
Reply
Yes.  Instances subject to termination under Article 15 of the Regulation, such as negligible
imports and de minis  dumping are not subject to cumulation under Subparagraph 1, Paragraph 1,
Article 40 of the Regulation.
Q14. How does Chinese Taipei intend to meet the requirement of ADA Article 9.3.2 that,
when duties are assessed on a prospective basis,  provision shall be made for a prompt refund of
duties paid in excess of the margin of dumping?
Reply
Though not specified in the Regulation, the amount of the antidumping duties is assessed on a
prospective basis, as illustrated in Article 9.3.2 of the Anti-Dumping Agreement.  Paragraph 2,
Article 64 of the Customs Law stipulates that the anti-dumping duties levied shall not exceed the
dumping margin of the imported goods.  Therefore, any duties paid in excess would be refunded uponapplication to the Ministry of Finance.  Even though time periods for refund process are not stipulated
in the Regulation, the investigating authorities will follow those time limits as set up in Article 9.3.2
of the Anti-Dumping Agreement.
Q15. Article 44(2) of the Implementation Regulation concerns changed circumstances
investigations “where the case merely concerns wh ether the situations of injury to the ROC
industry have lapsed or changed”.  The provision states that MOEA will conduct an
investigation and submit a determination to MOF.  It also states that “[a]s the MOEA notifies
the MOF of its determination, the MOF, sha ll in turn submit a proposal on whether to
terminate or change the imposition, and notify the interested parties and make a public notice
accordingly”.  Could Chinese Taipei explain the me aning of the latter sentence?  Does this mean
that MOF has the authority to review MOEA’s inju ry determinations?  If so, what is the nature
of such review and how is it conducted?  Does the latter sentence mean that, even if MOEA
should determine that injury is not likely to continue or recur if the order under review is
revoked, MOF could continue to leave the order in place?  If so, how is such a result consistent
with Article 11.2 of the ADA?
Reply
Pursuant to Article 3 of the Regulation, Ministry of Finance is responsible for dumping
investigations, while Ministry of Economic Affairs is responsible for injury investigations.  Their
determinations are independent and will not be altered or subject to any review by each other.
Q16. Article 13 of the ADA requires that Members whose national legislation contains
AD/CVD measures “maintain” procedures for prompt review of such measures by tribunals or
procedures “independent” of the authorities responsible for making the determinations in
question.  How does Chinese Taipei provide a legal framework for fulfilling this obligation?G/ADP/Q1/TPKM/3
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Reply
Determinations made by the investigating authorities can be appealed by any interested
parties to the Administrative Court, which is a body of the judicial branch.  This independent judicial
review mechanism is in conformity with Article 13 of the Anti-Dumping Agreement.
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