World Trade
Organization		
		
	G/ADP/N/1/TPKM/1
G/SCM/N/1/TPKM/1
5 June 2002	
	(02-3131)	
		
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

THE SEPARATE CUSTOMS TERRITORY OF TAIWAN,
PENGHU, KINMEN AND MATSU

	The following communication, dated  4 June 2002, has been received from the Permanent Mission of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.

_______________

	Pursuant to Article 18.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) and Article 32.6 of the Agreement on Subsidies and Countervailing Measures (Subsidies Agreement), the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu hereby notifies the Committee on Anti-Dumping Practices and the Committee on Subsidies and Countervailing Measures of its laws and regulations relevant to anti-dumping measures and countervailing duties, as follows:

1. 	Customs Law (Article 3, Article 62-64);

2. 	Implementation Regulation on the Imposition of Countervailing and Anti-Dumping Duties.

	Please note that these English texts are not an “official translation”.  Should there be any discrepancy between the Chinese texts and the English texts, the original Chinese texts shall govern, and in all instances of interpretation the Chinese original texts should be consulted. 

Customs Law
(Promulgated in 1967, as last amended on 31 October 2001)

Article 3

	Customs duty shall be collected by Customs either on an ad valorem basis or on a specific basis in accordance with the Customs Import Tariff under which different duty rates are classified into two columns, to goods imported from countries or areas having reciprocal treatment with the Republic of China and those having no such treatment.  Countries and areas subject to each duty rate shall be listed by the Ministry of Finance, after consulting with the other government agencies concerned and being reported to the Executive Yuan for approval.  The Executive Yuan shall then notify the Legislative Yuan of its approval for information.  The Customs Import Tariff shall be separately promulgated after enactment through the legislative process.

	The Ministry of Finance may establish a Tariff Commission to study and review matters relating to the amendment of the Customs Import Tariff and the levy of special customs duty.  The Commission’s organization and nomination of its members shall be drawn up by the Ministry of Finance and reported to the Executive Yuan for approval. Staff members for the Commission shall be selected from employees within the statutory quota of the Ministry of Finance.

Article 62

	Imported goods that have directly or indirectly received a bounty or other forms of subsidy during the process of manufacture, production, export, or transportation in the country of exportation or origin, thereby causing injury to industry in the Republic of China, may be subject to the imposition of an appropriate countervailing duty in addition to the customs duty leviable under the Customs Import Tariff.

Article 63

	Imported goods that are found to have been dumped at a price less than the normal value of its like product, thereby causing injury to industry in the Republic of China, may be subject to the imposition of an appropriate anti-dumping duty in addition to the customs duty leviable under the Customs Import Tariff.

	The "normal value" referred to in the preceding paragraph means the comparable domestic selling price in the country of exportation or origin in the ordinary course of trade.  In the absence of such a domestic selling price, the comparable selling price exported to an appropriate third country, or the constructed price consisting of the cost of production in the country of origin plus a reasonable amount for administrative, selling and other expenses, and normal profit as the basis for comparison.

Article 64

	The term "causing injury to industry in the Republic of China" referred to in the preceding two Articles means material injury, threat of material injury to the industry, or material retardation of the establishment of such an industry in the Republic of China.

	The amount of countervailing duty to be imposed shall not exceed that of the bounty and subsidy received for the imported goods, and the amount of anti-dumping duty imposed shall not exceed the dumping margin of the imported goods.

	The scope, subject, amount, commencement or termination date for imposing a countervailing or anti-dumping duty shall be prescribed by the Ministry of Finance after consulting with the relevant authorities and shall become effective on the date of the public announcement.

	Regulations governing the qualification of applicants, application contents, investigations, examinations, opinion statement, disposition procedure and any other required matters regarding the imposition of a countervailing duty and anti-dumping duty shall be drafted by the Ministry of Finance, together with the relevant authorities, and shall be submitted to the Executive Yuan for approval.

Implementation Regulation on the Imposition of Countervailing and Anti-Dumping Duties

(Promulgated on 3 July 1984. as amended on 17 November 1994, and 19 December 2001.)

Article 1

	This Regulation is prescribed in accordance with paragraph 4 of Article 63 of the Customs Law (hereinafter referred to as the Law).

Article 2

	The imposition of a countervailing duty and anti-dumping duty shall be approved, in accordance with the relevant laws and regulations, and publicized following the investigation and examination by the Ministry of Finance (hereinafter referred to as the MOF) as initiated ex officio, by an application, or by the referral of other government agencies.

Article 3

	With respect to a case on the imposition of a countervailing duty or anti-dumping duty (hereinafter referred to as the case), the authority responsible for investigating whether the imported product is subsidized or dumped shall be the MOF; whereas the authority responsible for investigating whether the subsidized or dumped imported products cause injury to the industry in the Republic of China (hereinafter referred to as the ROC) shall be the Ministry of Economic Affairs (hereinafter referred to as the MOEA).

	The aforesaid investigation which the MOEA responsible for shall be conducted by its International Trade Commission (hereinafter referred to as the ITC).

Article 4

	The countervailing duty and anti-dumping duty shall be paid by the duty-payer as prescribed in Article 5 of the Law.

Article 5
	
	For the purpose of this Regulation, 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 imported product in question.  Although different in appearance or packaging, product which is composed of the same materials as those of the imported product in question, shall be considered as a like product.

	For the purpose of this Regulation, the term “domestic industry” shall be interpreted to mean the overall domestic producers of the like product (hereinafter referred to as the “domestic like product”) in the ROC, or to those of them whose collective output of the like products constitutes a major proportion of the total domestic production.  However, producers are related to importers or, who are exporters or are themselves importers of the product in question, should not be included in the domestic industry.

	For the purpose of the preceding paragraph, producers shall be deemed to be related to importers or exporters only if legally or operationally, one of them directly or indirectly controls the other, or together they directly or indirectly control a third person, or both of them are directly or indirectly controlled by a third person, provided that the effect of the relationship is to cause the producer concerned to behave differently.

Article 6

	The producers of a domestic like product or related commercial, industrial, labour, agricultural associations or other legal organizations, may apply for the imposition of a countervailing duty or anti-dumping duty against the imported product on behalf of the industry of the like product as long as they are legally established and can identify their representative of the industry.

	The aforesaid “representative of the industry” shall be determined by referring to the total production of the like product within the most recent year of the application.  The application shall be supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by the portion of the domestic industry expressing either support for or opposition to the application; and the production of the domestic producers expressing support for the application shall account for more than 25 per cent of the total production of the like product produced by the domestic industry.

Article 7

	Applicant applying for the imposition of a countervailing duty or anti-dumping duty on imported products shall file a written application containing the following items together with sufficient materials as required under Article 21 to the MOF.

1.	Information about the subject imported product:

	(1)	the description, quality, specification, use, tariff number or Commodity Classification Code, and other characteristics;

	(2)	the names of the country or countries of export or origin, and any known foreign producers, exporters and domestic importers.

2.	Information about the qualification of the applicant:

	(1)	the applicant’s identity, the producers of domestic like products expressing support for and opposition to the application, and their production;

	(2)	the name, quality, specification, use, tariff number or Commodity Classification Code, and other  characteristics of the like product.

3.	Information about the subsidy or dumping of the subject product:

	(1)	the applicant applying for the imposition of a countervailing duty on the imported product shall state that a bounty or other form of subsidy has been directly or indirectly received during the course of manufacture, production, exportation or transportation of the product in the country of export or origin;

	(2)	the applicant applying for the imposition of an anti-dumping duty on the imported product shall state the selling price to the ROC, the comparable selling price in the ordinary course of trade in the country of export or origin, or the comparable export selling price  to an appropriate third country provided that the price is representative, or the constructed price consisting of the cost of production in the country of origin plus a reasonable amount for administrative, sales and other relevant expenses, and for profits;

	(3)	where the applicant asserts that there is a necessity for the provisional imposition of countervailing or anti-dumping duty, the applicant shall state the reasons thereof; and

	(4)	the applicant who asserts the necessity for the imposition of a countervailing duty or anti-dumping duty on the imported product prior to the date of the provisional imposition of a countervailing duty or anti-dumping duty shall state the existence of situations prescribed under Article 43.

4.	Information about the injury to the ROC industry:

	(1)	the production, volume and value of sales, profits, employment and utilization of production capacity, during the most recent three years, for the applicant and the industry which the applicant represents;

	(2)	the total volume and value of the imports of the subject product during the most recent three years, the market share in the ROC, the volume and value of the imports from the country of export, and its impact on the prices of the domestic like product;

	(3)	where an assertion of a retardation of establishment of a domestic industry of the like product occurred, the applicant shall prove that the establishment of such an industry is imminent, and that the plan for the new industry has been substantially implemented;

	(4) 	where there is a good reason for not being able to submit the information of the most recent three years relating to the injury to the ROC industry, the applicant should nevertheless submit such information of the most recent period relating to the injury to the domestic industry.

Article 8

	With respect to an application for imposition of a countervailing duty or anti-dumping duty, the MOF shall consult with the relevant agencies to submit a proposal for whether to initiate an investigation to the Tariff Commission (hereinafter referred to as the Commission) for decision; provided, that the application shall be rejected for any of the following reasons:

1.	the applicant’s identity does not meet the conditions prescribed under Article 6;

2.	the contents of the application does not meet the requirements prescribed under the preceding Article, and the subsequent supplement and correction is not made within the prescribed time limit so required by the authority;

3.	the application is obviously not within the scope of the imposition of a countervailing duty or anti-dumping duty.

	With respect to the application as referred to in the preceding paragraph, the MOF shall, within 40 days from the next day of receipt of the application, submit the proposal to the Commission for decision.  However, the time spent by the applicant for supplement and correction under preceding sub-paragraph 2 shall be excluded in this 40 day period.

	With respect to an application for imposition of countervailing duty, the MOF shall, prior to the submission of the proposal to the Commission for decision, inform the country or countries of export or origin to engage in negotiation to reach a settlement, and provide opportunities for further negotiation during the investigation period.

	The aforesaid negotiation shall not impede the proceedings of the decision and subsequent investigation of the case.

Article 9

	For the case in which the Commission decides not to initiate the investigation, the MOF shall immediately notify the applicant and the known interested parties in writing, close the case and make a public notice thereof.  For the case in which the Commission decides to initiate the investigation, the MOF shall immediately notify the applicant and the known interested parties in writing and make a public notice thereof.

	Upon initiation of an investigation, the MOF shall provide text of the application as required under Article 7 to the government of the exporting country or countries or its representative and the known exporters.  However, this provision does not apply with respect to information which shall be kept confidential pursuant to the relevant laws and regulations.

Article 10

	The “interested party” as set forth in this Regulation shall include the following:

1.	a foreign producer, exporter, and domestic importer of the product under investigation, and a commercial, industrial, or agricultural association in which a majority of the members of which are domestic importers, foreign producers or exporters;

2.	the government or its representative of the exporting country or area of the product under investigation, or the country or area of origin of the product under investigation;

3.	a producer of domestic like products or a commercial, industrial, or agricultural association in which a majority of the members of which are domestic producers;

4.	other interested parties as determined by the authority concerned.

Article 11

	For the case in which the Commission determines to initiate an investigation, the MOF shall proceed with an investigation over the existence of a subsidy or dumping, and shall immediately refer such case to the MOEA for investigation over the existence of injury to the ROC industry.

Article 12

	When the MOEA conducts an investigation pursuant to the preceding Article, it shall examine the information submitted by the applicant and the interested parties, and any other relevant information available, and shall notify the MOF regarding its preliminary determination within 40 days from the next day of receipt of the case.  For the case where the preliminary determination made is that there was no injury to the ROC industry, the MOF shall, after the Commission determines to terminate the case, immediately notify the applicant and the known interested parties in writing, and make a public notice thereof.  For the case where the preliminary determination made is that there has caused injury to the ROC industry, the MOF shall, within 70 days from the next day of receipt of the above notice, submit the case to the Commission to make a preliminary determination of whether there is a subsidy or dumping, and shall notify the applicant and the known interested parties in writing, and make a public notice thereof.

Article 13

	When the MOF makes a preliminary determination that there is the existence of a subsidy or dumping and decides that there is an emergency to provide provisional protection for the domestic industry concerned, the MOF should, after consulting with the authorities concerned, impose countervailing duty or anti-dumping duty provisionally on the imported products, and shall immediately notify the applicant and the known interested parties in writing, and shall make a public notice thereof. 

	The provisional imposition of a countervailing duty or anti-dumping duty as referred to in the preceding paragraph should be secured by the duty-payer by providing government bonds or other securities recognized by the MOF in an amount equivalent to the duty.

	The period of the provisional imposition of a countervailing duty or anti-dumping duty shall not exceed 4 months.  Upon the request of the foreign exporter, the period of the provisional imposition of an anti-dumping duty should be extended to 6 months following an approval.

	When the MOF, in the course of an investigation, considers to examine whether a duty lower than the margin of dumping would be sufficient to remove injury, the aforesaid imposition periods of 4 months and 6 months should be extended to 6 months and 9 months respectively following the Commission's determination.

Article 14

	For the case in which the preliminary determination is made, the MOF shall proceed with the investigation, whether there is a subsidy or dumping involved, and shall, within 60 days from the next day of the preliminary determination, submit the case to the Commission to make its final determination.

	For the case in which the final determination is that there is no existence of a subsidy or dumping, the MOF shall terminate the case and notify the applicant and the known interested parties in writing, and make a public notice thereof.  At the same time, the MOF shall notify the MOEA of the termination of its investigation.  For the case in which the final determination is that there is the existence of a subsidy or dumping, the MOF shall immediately notify the applicant and the known interested parties in writing, and make a public notice thereof, and refer the case to the MOEA.  The MOEA shall complete, within 40 days from the next day of receipt of the notice, the final investigation and determination of whether the subsidy or dumping causes injury to the ROC industry, and shall notify the MOF of its final determination.

Article 15

	Where the authorities concerned find the case under investigation to be subject to one of the following situations, the MOF shall submit the case to the Commission for determination, and thereby terminate the investigation:

	(1)	insufficient evidence of subsidy, dumping or injury;
	(2)	the amount of subsidy is less than 1 per cent of the price of the product in question imported into the ROC;

	(3)	the dumping margin is, upon the final determination, less than 2 per cent of the price of the like product imported from the country or countries of export or origin into the ROC; and

	(4)	the respective volumes of dumped or subsidized imports of countries in question are found to account for less than 3 per cent of the imports of like products, except that the total imports of all such countries in question exceeds 7 per cent of the total imports of the like product.

	Where the investigation is terminated pursuant to the preceding paragraph, the MOF shall immediately notify the applicant and any known interested parties in writing, and make a public notice thereof, and close the case thereafter.

Article 16

	For the case in which the final determination made by the MOEA is that there is no injury to the ROC industry, the MOF shall, after the Commission determines to terminate the case, immediately notify the applicant and any known interested parties in writing, and make a public notice thereof.  Where the final determination is made that there is injury to the ROC industry, the MOF shall, within 10 days from the next day of receipt of the notice from the MOEA, submit the case to the Commission to determine whether to impose a countervailing duty or anti-dumping duty.  For the case in which the Commission determines to impose a countervailing duty or anti-dumping duty, the MOF shall, pursuant to the relevant laws and regulations, approve the products in question, the country or countries of export, respective duties and the commencement or closing date of the imposition of the countervailing duty or anti-dumping duty, and shall immediately notify the applicant and any known interested parties in writing, and make a public notice thereof.

	In deliberating the imposition of a countervailing duty or anti-dumping duty as referred to in the preceding paragraph, the Commission shall take the existence of a subsidy or dumping and the injury to the industry as its primary consideration, and should also consider the influence of the case on the overall economic interests of the ROC.

Article 17

	The public notice concerning the initiation of the investigation, the preliminary or final determination, the provisional imposition of a countervailing duty or anti-dumping duty pursuant to this Regulation, and the suspension or termination of the investigation following the acceptance of an undertaking pursuant to Article 24, unless confidentiality is required, shall state the following:

1.	Public notice concerning the initiation of the investigation:

	(1)	the names of the country or countries of export or origin, and the products involved;

	(2)	the date of the initiation of the investigation;

	(3)	the basis on which the subsidy or dumping is alleged;

	(4) a summary of the economic factors of the alleged injury to the industry;  and

	(5) 	the time-limits allowed for interested parties to make their views known, and the address to which written opinion by interested parties should be directed.

2.	Public notice concerning preliminary or final determination:

	(1) 	the result of the determination on major assertion;  and

	(2) 	the reasons and legal bases of the determination.

3.	Public notice concerning the provisional imposition of a countervailing duty or anti-dumping duty:

	(1)	the reasons and legal bases of the preliminary determination of the existence of subsidy, dumping and injury;

	(2)	the names of the foreign producers, exporters, country or countries of export or origin;

	(3)	the description of the products involved;

	(4)	the reasons for the determination of the subsidy or dumping margin thereof;  and

	(5)	the main reasons leading to the determination of the provisional imposition of a countervailing duty or anti-dumping duty.

4.	Public notice concerning the suspension or termination of the investigations following the acceptance of an undertaking:

	(1)	the relevant facts and legal bases for the acceptance of an undertaking;

	(2)	the reasons for accepting or rejecting the opinions provided by the interested countries, foreign exporters and domestic importers;

	(3)	the reasons for the determination of a subsidy or dumping margin, and injury thereof;  and

	(4)	the information of undertaking which is non-confidential.

Article 18

	Where necessary for the investigation and examination of the case, the authority concerned should extend the respective period as set forth in this Regulation up to one half.

	The authority concerned shall notify the extension of the aforesaid period to the applicant and any known interested parties in writing, and shall make a public notice thereof.

Article 19

	With respect to the investigation of the case, the authority concerned shall:

	1.	request the applicant and the known interested parties to respond to the questionnaire, or to provide relevant information;

	2.	conduct an appropriate investigation of the relevant evidence and information presented in writing by the applicant and the interested parties;

	3.	where necessary, send officers to conduct an investigation at the premises of the domestic importers or producers of the like product, the foreign producers or exporters;  and

	4.	where necessary, notify the applicant or the known interested parties to present their opinions, or accept the requests with reasons made by the applicant or the interested parties to express their opinions.

	When the questionnaire is delivered to the foreign producers or exporters pursuant to the first subparagraph of the preceding paragraph, the foreign producers or exporters shall be given at least 30 days to reply from the day of receipt.  Any requests with reasons for an extension of the above period should be granted where necessary.

	Oral information furnished by the applicant or the interested parties under subparagraph 4 of the first paragraph shall be subsequently presented in writing.

Article 20

	The applicant and the interested parties may request to see the information relevant to the countervailing or anti-dumping investigation, unless the information is confidential pursuant to this Regulation.

Article 21

	With respect to the information submitted, the applicant and the interested parties shall separately identify which information may be disclosed and which may not.  However, where confidentiality is requested, the non-confidential summary shall be furnished.

	Where the request for confidentiality, pursuant to the preceding paragraph, is not warranted, or where the non-confidential summary is not provided, the authority concerned should disregard such information.  The applicant and the interested parties may retrieve such information within 7 days from the next day of receipt of the notice.

	Where the applicant and the interested parties request for confidentiality of the information so provided is warranted, the authorities concerned shall not disclose such information without the specific permission of the party submitting it.

Article 22

	Where the applicant and the interested parties fail to submit the necessary information within the specified time, or otherwise impede the investigation, the authority concerned will be free to make determinations on the basis of the facts available.

Article 23

	Unless otherwise set forth in this Regulation, the ITC shall apply mutatis mutandis to the relevant provisions under Chapter III of the “Rules Handling Import Relief Cases” to conduct the investigation on whether there is injury to the ROC industry.

Article 24

	Following the preliminary determination, upon receipt of satisfactory undertakings from the government of the exporting country or the foreign exporters to eliminate the injurious effect of the subsidy or dumping, or other effective measures, so as to remove the injury to the ROC industry, the MOF may accept such undertakings.

	With respect to the undertaking accepted pursuant to the preceding paragraph, the MOF should request the government of the exporting country or the foreign exporters to periodically provide information relevant to the fulfilment of such undertakings.

Article 25

	Upon acceptance of the undertakings pursuant to the preceding Article, the MOF should suspend the proceedings and the provisional imposition of a countervailing duty or anti-dumping duty, and notify the applicant and the known interested parties and make a public notice thereof.

	Where the government of the exporting country or the foreign exporter is in violation of the undertakings, the authorities concerned shall continue the investigation pursuant to Article 14. In cases when the countervailing duty or anti-dumping duty was not provisionally imposed or when such imposition was suspended, the MOF may, when necessary, provisionally impose the countervailing duty or anti-dumping duty after submission of facts available to the Commission for determination.  Where the imposition of a countervailing duty or anti-dumping duty is determined pursuant to the Law and Regulations, the definitive duties may be levied on products imported not more than 90 days before the application of such a provisional imposition of the duties.  However, the imposition of definitive duties shall not apply to products imported prior to the violation.

Article 26

	Where the MOF accepts the undertaking pursuant to Article 24 hereof, the authorities concerned should continue the investigation ex officio, or at the request of the government of the exporting country or the foreign exporters.

	Where a negative determination of subsidy, dumping or injury is made, the undertaking shall automatically lapse, except in cases where such a determination is due in large part to the existence of the undertaking.

Article 27

	For the purpose of this Regulation, a subsidy shall be deemed to exist if any of the following measures is provided directly or indirectly by the government or a public body of the exporting country to the specific enterprise or industry and thereby a benefit is conferred:

	1.	provides grants, loans or equity infusions

	2.	provides loan guarantees

	3.	expunges or does not collect taxes that are otherwise due.

	4.	purchases goods or provides goods or services other than for general infrastructure.

	5.	income or price support.

	The following circumstances shall not be considered as conferring a benefit:

	1.	the provision of equity capital by the government or a public body of the exporting country consistent with the private sectors’ usual investment practice.

	2.	no difference between the commercial loan that the firm receiving from the government or a public body of the exporting country and the commercial loan  the firm could actually obtain on the market.

	3.	no difference between the amount that the firm receiving the guarantee pays on a loan guaranteed by the government or a public body of the exporting country and the amount the firm would pay on a comparable commercial loan absent the government guarantee.

	4.	the provision of goods or services by the government or a public body of the exporting country is no less than adequate remuneration or the purchase of goods is no more than adequate remuneration.  The adequacy of remuneration shall be determined in relation to prevailing market conditions.

Article 28

	For the purpose of this Regulation, the amount of subsidy shall be determined by the amount received on a per unit basis of the imported product, and any of the following circumstances shall be taken into account accordingly:

	1.	where the expenses incurred are for obtaining the subsidy, or where the export duty or tax is imposed by the exporting country to counteract the subsidy, such expenses, and duty or tax shall be deducted;

	2.	where the subsidy is not granted on the basis of the quantity of production or exportation, the total amount of the subsidy shall be allocated to the products produced or exported during a specific period of time;

	3.	where the subsidy is granted in the form of a loan or loan guarantee, it shall be calculated by referring to the difference between the interest actually paid, or payable by the recipient, and the interest payable under the comparable commercial loan or loan guarantee in the exporting country.

Article 29

	Any of the following circumstances shall not be treated as being in the ordinary course of trade pursuant to paragraph 2 of Article 63 of the Law, and the price thereof shall not be considered as the normal value:

	1.	where the cost or price is affected because of an association or a compensatory arrangement between the purchaser and seller; or

	2.	where sales of the like product in the country of origin or sales to a third country at prices below per unit costs of production plus administrative, selling and other relevant costs, which are made within an extended period of time, and all the weighted average selling prices of the transactions are below the weighted average per unit cost, or that the volume of sales below per unit costs represents more than 20 per cent of the volume sold in the transaction, and are at prices which do not provide for the recovery of all costs within a reasonable period of time.  If prices which are below per unit costs at the time of sale are above weighted average per unit costs for the period of investigation, such prices shall be considered to provide for recovery of costs within a reasonable period of time.

Article 30

	For the purpose of this Regulation, the term “in the absence of the comparable domestic selling price” as referred to Article 63 of the Law indicates that the domestic market of the country of export or origin is subject to one of the following situations:

	1.	where there are no sales of the like product in the ordinary course of trade;

	2.	where the volume of sales of the like product is less than 5 per cent the volume of sales of such product to the ROC.  However, a lower ratio should be acceptable if the sales are made under ordinary course of trade and are representative;

	3.	where there is a particular market situation.

Article 31

	Pursuant to paragraph 2 of Article 63 of the Law, when there is no comparable domestic selling price and the constructed value is used as the basis for comparison, the amounts for administrative, selling and other relevant expenses, and for normal profits shall be based on actual data pertaining to production and sales of the foreign producer or exporter in the ordinary course of trade of the product in question.  When such amounts cannot be determined on this basis, the amounts shall be determined on the basis of:

	1.	the actual amounts incurred and realized by the foreign producer or exporter under investigation in respect of production and sales in the domestic market of the country of origin of the like product;

	2.	the weighted average of the actual amounts incurred and realized by other foreign producers or exporters subject to investigation in respect of production and sales of the like product in the domestic market of the country of origin;

	3. 	any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realized by other exporters or producers on sales of the like product in the domestic market of the country of origin.

Article 32

	For the case in which there is no imported selling price into the ROC or where it appears that the selling price of the product under investigation is unreliable because of association or a compensatory arrangement between the foreign exporter and the domestic importer or a third party, the selling price may be constructed by the MOF on the basis of the price at which the imported products are first resold to an independent buyer.

Article 33

	For the purpose of this Regulation, the dumping margin shall be determined by the difference between the imported selling price into the ROC and its lower normal value.

	The aforementioned dumping margin may be established on the basis of a comparison of a weighted average imported selling price into the ROC with a weighted average normal value, or by a comparison of the imported selling price and normal value on a transaction-to-transaction basis.  Where the imported selling prices into the ROC differs significantly among different purchasers, regions or time periods, the individual selling price may be compared with a weighted average normal value.

	With respect to the constructed imported selling price into the ROC determined pursuant to the preceding Article, the following expenses incurred between importation and resale shall be deducted prior to making a comparison with the normal value:

	1.	insurance, transportation, handling, loading and unloading, and other relevant expenses;

	2.	customs duties and other taxes;  and

	3.	reasonable profit or commission normally realized.

	For the case in which products are not imported directly form the country of origin but are exported to the ROC from a third country, the dumping margin shall be determined by comparing the imported selling price into the ROC and the normal value in the third country pursuant to paragraph 1.  However, a comparison may be made between the normal value in the country of origin, if the products are merely transshipped through the third country, or if such products are not produced in the third country, or if there is no normal value for them in the third country.

	When the country of origin or export is a non-market economy, the normal value shall be determined by comparing comparable selling price or constructed value of the like product in a market economy third country, or by comparing comparable selling price of the like product from such a third country to another market economy country, or to the ROC, or where these are not possible, on another reasonable basis.

Article 34

	The determination of the dumping margin, pursuant to the preceding Article, shall comply with the following as well:

	1.	comparison made between the imported selling price into the ROC and the normal value, shall be made at the same level of trade and at as nearly as possible the same time.

	2.	adjustments shall be made for differences in physical characteristics, taxation, level of trade, transaction time, quantity, terms of sale, and other factors which affect price comparability.

	When the comparison under the preceding sub-paragraph 1 requires a conversion of currencies, such conversion shall be made using the rate of exchange on the date of sale.  The exporter shall be given an opportunity to adjust their imported selling price into the ROC to reflect sustained movements in exchange rate during the period of investigation.

Article 35

	The dumping margin as referred to in Article 33 shall be determined individually for each known foreign producer or exporter under investigation.

	For the case in which the number of foreign producers, exporters, domestic importers, or types of products involved are so large as to make such a determination impracticable, the authorities concerned may limit their investigation either to a reasonable number of interested parties or products, or to parties of the largest percentage of the volume of the exports from the country in question, so as to determine the individual dumping margin for each foreign producer or exporter under investigation.

	Pursuant to the preceding paragraph, the MOF shall determine an individual dumping margin and applicable duty rate for any foreign producer or exporter not initially selected who submits the necessary information in time, except where the number of producers or exporters is so large as to affect the investigation.

Article 36

	Any anti-dumping duty applied to foreign producers or exporters not included in the initially selected investigation, pursuant to the preceding Article, shall not exceed the weighted average dumping margin established with respect to the selected foreign producers or exporters.

	Where any dumping margin established for selected foreign producers or exporter with respect to the circumstances referred to in sub-paragraph 3 of paragraph 1 of Article 15, or Article 22, such dumping margin shall be disregarded in the calculation of the aforementioned weighted average.

	After the final determination is made and upon request, the MOF shall promptly carry out a review to determine individual margins of dumping for any producers or exporters of the exporting country in question who have not exported the product in question to the ROC during the period of investigation, provided that these producers or exporters can show that they are not related to any of the producers or exporters in the exporting country who are subject to the anti-dumping duties on the product.  The MOF may request guarantees amount to the anti-dumping duty under paragraph 1 from the date of the initiation of the review.  In addition, should such a review result in a determination of dumping in respect of such foreign producers or exporters, anti-dumping duties so determined shall be levied.

Article 37

	With respect to the determination of whether the dumped or subsidized imports are causing injury to ROC industry, the authority concerned shall investigate the following matters:

1.	the increase of the imports in question, including either in absolute terms or relative to production or consumption in the ROC.

2.	the effect of the imports in question on the market price of the domestic like products, including whether there has been a price undercutting, or whether the effect of such imports is to depress prices or prevent price increases, and whether the price of such imports is lower than the price of a domestic like product.

3.	the impact of the imports in question on the domestic industry, including an evaluation of the following economic factors, having a bearing on the state of the industry:

	(1)	output;
	(2)	productivity;
	(3)	utilization of capacity;
	(4)	inventories;
	(5)	sales;
	(6)	market share;
	(7)	selling price;
	(8)	margin of dumping;
	(9)	profits;
	(10)	return on investments;
	(11)	cash flow;
	(12)	employment and wages;
	(13)	growth;
	(14)	ability to raise capital or investments;
	(15)	other relevant factors.

Article 38

	In making a determination regarding the existence of a threat of material injury pursuant to Article 64 of the Law, in addition to conducting an investigation pursuant to the preceding Article, the authority concerned shall take into account, inter alia, such factors as the rate of increase of subsidized or dumped imports, capacity, inventories, export ability of foreign producers or exporters, and imported selling price, and consider whether further subsidized or dumped imports are imminent and material injury to the ROC industry would occur unless protective action is taken.

Article 39

	In assessing the effect of subsidized or dumped imports in relation to the domestic industries, when available data permit the separate identification of that production on the basis of the production process, producers’ sales and profits, the authority concerned shall take the production of the domestic like product as the basis for assessment.

	Where separate identification of that production of the domestic like product pursuant to preceding paragraph is not possible, the authorities concerned shall assess, according to information available, the effects of the subsidized or dumped imports by the examination of the production of the narrowest group or range of products, which includes the like product.

Article 40

	Where imports of a product from more than one country are simultaneously subject to subsidy or anti-dumping investigations, the authority concerned may cumulatively assess the effects of such imports, after taking into account the followings:

	1.	the absence of circumstances prescribed in subparagraph 2, 3 and first sentence of subparagraph 4 of paragraph 1 of Article 15 hereof.

	2.	the conditions of competition between imported products.

	3.	the conditions of competition between the imported products and the domestic like products.

Article 41

	Where a case concerning the provisional imposition of a countervailing duty or anti-dumping duty is falling into one of the following situations, the countervailing duty or anti-dumping duty may be levied retroactively from the date when the provisional imposition of such duty has been applied:

	1.	a final determination of material injury to the ROC industry is made;

	2.	in the existence of the provisional imposition of a countervailing duty or anti-dumping duty which has lead to a final determination of a threat of material injury other than material injury to the ROC industry.

	Except as provided in subparagraph 2 of the preceding paragraph, where a final determination of a threat of material injury or retardation is made, a countervailing duty or anti-dumping duty shall be imposed from the date of such determination, and any cash or securities deposited for the provisional imposition of such a duty, shall be refunded or released by the MOF.

Article 42

	Where a final determination is negative, any cash or securities deposited for the provisional imposition of a countervailing duty or anti-dumping duty shall be refunded or released.

	Where a case is determined to impose a countervailing duty or anti-dumping duty pursuant to paragraph 1 of the preceding Article, if the amount of the definitive duty is higher than the duty provisionally imposed, the difference shall not be collected; if such amount is lower than the duty provisionally imposed, the difference shall be refunded.

Article 43

	Where the subsidized or dumped imports is falling into one of the following situations, the MOF shall consult with the authorities concerned, to impose a countervailing duty or anti-dumping duty on the product imported not more than 90 days before the application of the provisional duty:

	1.	the injury to the ROC industry is caused by the massive import of a product benefiting from the subsidies in a relatively short time;

	2.	the injury to the ROC industry is caused by the persistence of dumping, or the domestic importer was, or should have been, aware that the foreign exporter practices dumping, or massively imported the product in question in a relatively short time.

Article 44

	After one year of the public notice of the imposition of a countervailing duty or anti-dumping duty, the MOF may submit the case to the Commission for a review on whether to initiate an investigation on the lapse or change in reasons that justify the imposition of such duty, ex officio, or upon the request by the applicant or any interested party which submits positive information substantiating the need for a review.

	For the case in which the Commission decides to initiate an investigation pursuant to the preceding paragraph, the authorities concerned shall, within 9 months from the next day of the public notice on the investigation, make a determination.  Where necessary, the period may be extended, but the investigation shall normally be concluded within 12 months form the date of initiation of the investigation.

	The procedures of review in this Article are subject to the following:

	1.	where the case merely concerns whether the situations of subsidy or dumping have lapsed or changed, the MOF, after the completion of the investigation,  shall submit a proposal on whether to terminate or change the imposition to the Commission for decision, and notify the interested parties and make a public notice accordingly.

	2.	where the case merely concerns whether the situations of injury to the ROC industry have lapsed or changed, the MOF, shall immediately refer the case to the MOEA for the investigation and determination.  As the MOEA notifies the MOF of its determination, the MOF, shall in turn submit a proposal on whether to terminate or change the imposition, and notify the interested parties and make a public notice accordingly.

	3.	where the case not merely concerns whether the situations of subsidy or dumping, but also injury to the industry have lapsed or changed, the MOF shall, in addition to referring the injury part to the MOEA for investigation, complete the investigation on whether the situations of subsidy or dumping have lapsed or changed, and submit it to the Commission for decision.  For the case in which the Commission decides that the situations of subsidy or dumping have lapsed, the MOF shall notify the MOEA to terminate the investigation, and on the other hand notify the interested parties and make a public notice of terminating the imposition.

	4.	having completed the investigation on whether the situations of injury to the industry have lapsed or changed and made a determination pursuant to the preceding subparagraph, the MOEA shall notify the MOF of its result.  The MOF shall submit the result together with its determination on whether the situations of subsidy or dumping have lapsed or changed, to the Commission for decision on whether to terminate or change the imposition of duty, and notify the interested parties and make a public notice accordingly.

	With respect to the investigation and determination under the preceding paragraph, the authorities concerned shall take into account whether the continued imposition of the duty is necessary to offset subsidy or dumping, and whether the injury would be likely to continue or recur if the duty were removed or varied.  The procedures thereof shall be applied mutatis mutandis to this Regulation, except for Article 12 and Article 14.

	For the case in which an undertaking has been accepted under Article 24, the provisions of this Article shall apply mutatis mutandis to the procedures concerning the investigation and determination on whether the situations supporting such an undertaking have lapsed or varied. 

Article 45

	The imposition of a countervailing duty or anti-dumping duty shall be terminated if such an imposition period has lasted for 5 years and, after investigation, it is determined that the subsidy or dumping is no longer existent and there is no longer any injury to the domestic industry, or the expiry of the duty would not lead to recurrence of subsidy or dumping and injury.

	Before the imposition of a countervailing duty or anti-dumping duty exceeds 4 years and 6 months, the MOF shall make a public notice that the imposition period is approaching 5 years.  And if the interested parties under subparagraph 3 of Article 10 consider that the continuous imposition is necessary, they shall make such an application within 1 month following the public notice.  The MOF shall submit the application to the Commission for decision on whether to initiate the review.

	With respect to the case where the initiation of a review has been decided under the preceding paragraph, the MOF shall, within 6 months from the date when the initiation of the review is publicized, complete the investigation on subsidy and dumping under paragraph 1 and notify the MOEA.  The MOEA shall, within 8 months from the date when the initiation of the review is publicized, complete the investigation on injury under paragraph 1 and notify the MOF.  The MOF shall, within 10 days from the next day of receipt of the notice, submit the case to the Commission for decision.  Where it is decided that the imposition shall continue, the MOF shall notify the known interested parties and make a public notice thereof.

	The period prescribed in the preceding paragraph may be extended where necessary; however, in no event shall the extension exceed 12 months.  This Regulation, except for Article 12 and Article 14, shall apply mutatis mutandis with respect to the procedures used thereof.

	Where the interested parties pursuant to paragraph 2 do not provide substantiated evidence, or do not submit application within the prescribed period pursuant to paragraph 2, or the Commission decides not to initiate the review, or not to continue the imposition;  the MOF shall notify the known interested parties and make a public notice thereof.

	With respect to undertakings accepted under Article 24, the procedures thereof shall be applied mutatis mutandis to the provisions of this Article.

Article 46

	Where the imported product subject to the imposition of a countervailing duty or anti-dumping duty, is further processed and exported, such a duty shall not be refunded; however, where the imported product is re-exported in its original form which meets the requirements for an exemption of customs duty under the Law, such a duty may be refunded.

Article 47

	Where it is found that the producers or exporters of the exporting country provide or compensate the amount of the countervailing duty or anti-dumping duty which is paid by the duty-payer, such an amount shall be further imposed as a countervailing duty or anti-dumping duty.

Article 48

	With respect to issues related to investigation, examination and determination of the case pursuant to this Regulation, the authorities concerned may refer to relevant international agreement or customary practices, provided that there is no specific provisions prescribed in the Law and this Regulation.

Article 49

	With respect to making public notices pursuant to this Regulation, the MOF shall publicize each of them in its Gazette, and may place such notices in daily newspapers.

Article 50

	This Regulation shall become effective from the date of promulgation.

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