1. LEGAL PROVISIONS

 

Article 6.9 of ADA provides as follows:

 

“The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests.”

 

Rule 16 of the Anti-dumping Rules provides as  follows:

 

“Disclosure of information: The designated authority shall, before giving its final findings, inform all interested parties of the essential facts under consideration which form the basis for its decision”

 

2. OPERATING PRACTICE

 

After conducting investigation in a fair and transparent manner by giving all the parties an opportunity to participate at every stage of the investigation and examining, analysing, tabulating and recording all relevant information, it’s time to issue Disclosure Statement.

 

The team after meticulously examining all the facts/data/information under consideration as per the procedure mentioned in the Rules, presents the case to DG and after discussions submits drafts of disclosure statement to DG proposing to disclose there levant facts to all the interested parties.

 

The disclosure must contain all factual details available with the authority till this stage. The disclosure should be issued as per the timelines indicated in Circular No.2 dated 27.2.2018 and revised vide O.M. No.4/7/2018 dated 12.4.2018, annexed herewith.

 

The disclosure is not the decision of the investigation but a communication with respect to there levant facts taken into consideration for the concerned investigation which will form the basis of the Final Finding.

 

It should contain all the submissions/arguments made by various interested parties at different stages of the investigation considered relevant for processing the investigation. Irrelevant submissions and information may be disregarded.

 

The disclosure statement is to be prepared both in confidential and non- confidential versions. Confidential version is for the office file and every care is to be taken that it is not released. Whereas non-confidential version (NCV) of the disclosure statement is circulated to all the interested parties who have provided any meaningful submissions during the investigation.

 

The NCV version should be carefully drafted. It is advisable that the soft copy should be freshly created when it is to be issued. The non-confidential version of the disclosure statement hides (by replacing confidential numbers/statements by an asterix symbol) all that information which is being submitted on a confidential basis by the interested parties and the Authority has agreed to grant the confidentiality, the details of which are as mentioned in earlier chapter 7on the subject based on the guidelines issued in this regard vide Trade Notice Nos. 10/2018 dated 07.09.2018 and 14/2018 dated 01.10.2018.

 

After discussions and specific approval of DG for issue of Disclosure statement, the final NCV should be converted into a PDF file and emailed to all the responding interested parties. The emails of all the relevant responding parties should be collected and kept ready in advance so that none of them are missed out, otherwise it may lead to redundancy of the whole exercise as non-receipt of disclosure can be a cause of action and the aggrieved party may approach Court. Disclosure Statement should also be emailed to the respective Embassy if they have participated by way of making any submission or attended the hearing.

 

The disclosure statement mentions the relevance of the document in the covering letter and has 4 Annexures containing submissions, counter submissions and its examination under following subheadings:

 

Annexure I -General Disclosure : It contains the details that need to be provided under the following heads:

 

(i) Procedures: Facts in a chronological order starting from receipt of application, intimation to embassies, source of data relied upon in the initiation and subsequently obtained during the course of investigation, list of stakeholders which were asked to file response, list of registered interested parties, list of stakeholders who have filed responses/submissions, exchange rate applied for the conversion, date of hearing etc.;

 

(ii) In case of sunset review, the disclosure statement may also outline the history of reviews of the measures since the time they were first imposed;

 

(iii) Product under Consideration (as dealt with in Chapter 3 of this Manual);

 

(iv) Domestic Industry Standing (as dealt with in Chapter 4 of this Manual);

 

(v) In case of mid-term reviews, the applicant and scope of the review may also be mentioned;

 

(vi) Confidentiality; and

 

(vii) Miscellaneous submissions made by different parties to the extent considered relevant by the Authority.

 

 

Annexure II - Normal Value, Export Price and Dumping Margin

 

(i) The submission of DI alleging dumping and market/non market status of subject countries/ specific exporters;

 

(ii) Details of responses received from producer/exporter/importer/user etc.;

 

(iii) Summary of submissions received from responding producer exporters from responding country(ies);

 

(iv) In case any of the exporter or subject country is not considered to be operating in Market Economy conditions, then it should be specified giving reasons thereof;

 

(v) Normal value determination for cooperating exporters: reasons should be given wherever the normal value is not computed from the response of the co-operating exporter and instead normal value is constructed in terms of para 7-8 of Annex I or in view of incompleteness of the response;

 

(vi) Export price of cooperating producer exporters;

 

(vii) Dumping margins for cooperating producer exporters;

 

(viii) Normal value for non-cooperating exporters/residuary   category;

 

(ix) Export price for non-cooperating exporters/residuary  category;

 

(x) Dumping margins for non-cooperating exporters/residuary category; and

 

(xi) The dumping margin should be reflected in terms of Range of units of 10;

 

(xii) Any specific situations regarding exporters explaining particular market situation and related party details.

 

Note: The cooperating exporters separately should be provided all the details of calculation of its dumping margin.

 

Annexure III - Methodology for Injury Assessment and examination of Injury and Causal Link

 

(i) Injury factors & analysis;

 

(ii) Volume effect of dumped imports;

 

(iii) Price effect of dumped imports on the domestic industry:

   (a) Price undercutting;

   (b) Price underselling; and

   (c) Price suppression and depression.

 

(iv) Economic parameters of the domestic industry:

   (a) Market share;

   (b) Profitability;

   (c) Return on Investment;

   (d) Production and Capacity Utilization;

   (e) Sales Volumes;

   (f) Selling Price;

   (g) Employment and wages;

   (h) Productivity;

   (i) Magnitude of dumping;

   (j) Cash flow;

   (k) Inventories;

   (l) Ability to raise capital investment;

   (m) Factors affecting domestic prices;

   (n) Growth; and

   (o) Any other economic factor which may be relevant for the injury analysis.

 

(v) Conclusion on material injury.

 

(vi) Magnitude of injury (Injury Margin): However, in case of SSR/MTR, the analysis of injury in terms of the aforementioned economic parameters is more important and injury margin need not be indicated.

 

(vii) Likelihood analysis in case of review investigations

 

(viii) Other known factors and Causal Link: a comprehensive analysis should be mentioned with a focus stating that that the alleged dumped imports are actually causing/ not causing the injury. The causality should be direct and not distantly indicative. The performance of DI vis a vis supporting producers and other producers (including opposers, if any) may be relevant in this regard.

 

(ix) Non-attribution analysis: A comprehensive analysis should be undertaken with a specific object to analyse and eliminate various factors which could be otherwise responsible for the injury instead of alleged dumped imports. The analysis of economic parameters should indicate actual injury on some or all parameters. The factors like inter se competition between producers in the country resulting in injury to the applicants should be carefully seen.

 

(x) In case of SSR cases where the duties have already been in existence for a long time, it should be analysed as to how the existing duties have helped gain ground for the domestic industry and relevance of the duties to the overall economic health of the industry.

 

(xi) The economic indicators and information in that regard submitted by co-operative producer exporter may also be seen, if required.

 

Annexure-IV:  Methodology  For Determination  of Non-Injurious Price

 

(i) A brief of the methodology followed for determination of NIP in terms of Annex III of the Rules is to be mentioned and details are mentioned in Chapter 9 of this Manual.

 

(ii) The NIP so determined is disclosed only to the respective Domestic Industry as the computation of the NIP contains confidential data of the respective producer(s).

 

The covering letter of the Disclosure statement should state the date and time up to which all the interested parties can make their submissions. The parties should be given at least five days or such other reasonable period as the Authority may deem fit, for submission of comments.

 

It is important to note that the export price and normal value as stated in the Disclosure Statement and adjustments affecting normal value are not final determination, but are only proposed calculations.

 

Non confidential Disclosure Statement should be individually sent via email to the interested parties which have participated by way of questionnaire response or legal submissions. This should be followed by:

 

(i) an email to DI with its details of NIP working;

 

(ii) an email to respective producer exporter with detailed NV, NEP and LV working. This email can be sent to the legal counsel/ authorised representative of the interested party.

 

The interested parties to an investigation are as decided in terms of the Rules. The procedure for registration of interested parties is defined in Trade Notice 11/2018 dated 10.9.2018 attached to Chapter 6 of this Manual.

 

Source: Manual Of Operating Practices For Trade Remedy Investigations