A. Initiation

 

1. LEGAL PROVISIONS

 

Rule 5 of the Anti-Dumping Rules provides as follows:

 

“Initiation of investigation. –

 

Except as provided in sub-rule (4), the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry.

 

(1) An application under sub-rule (1) shall be in the form as maybe specified by the designated authority and the application shall be supported by evidence of –

 

(a) dumping

(b) injury, where applicable, and

(c) where applicable, a causal link between such dumped imports and alleged injury.

 

(2) The designated authority shall not initiate an investigation pursuant to an application made under sub-rule (1) unless:

 

(a) it determines, on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic  industry:

Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty-five per cent of the total production of the like article by the domestic industry, and

 

(b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding-

 

(i) dumping,

(ii) injury, where applicable; and

(iii) where applicable, a causal link between such dumped imports and the alleged injury, to justify the initiation of an investigation.

 

Explanation. - For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application.

 

(3) Notwithstanding anything contained in sub-rule (1) the designated authority may initiate an investigation suo motu if it is satisfied from the information received from the Commissioner of Customs appointed under the Customs Act, 1962 (52 of 1962) or from any other source that sufficient evidence exists as to the existence of the circumstances referred to in clause(b) of sub-rule (3).

 

(4) The designated authority shall notify the government of the exporting country before proceeding to initiate an investigation.”

 

2. OPERATING PRACTICES

 

The Application is to be examined in terms of the provisions of Rule 5 to decide whether an investigation is required to be initiated or not:

 

- Domestic Industry or their representative body, is the applicant in case of an original investigation, anti-circumvention and sunset review investigation. The Rules also permit suo motu initiation of an original investigation as well as a sunset review investigation, although it is preferable that an investigation is initiated on the basis of a written application from an eligible applicant.

 

- Exporter or Importer or DI or their representative body can be the applicant in case of mid-term review investigations. The Rules allow suomotu initiation of a Mid Term Review investigation, the circumstances of which are explained in Chapter 17.

 

- The new exporter is the applicant in case of New Shipper Review investigation.

 

The application should be in the specified format along with all applicable/ relevant Annexures. The application shall be supported by evidence of:

 

(i)dumping;

(ii) injury; and

(iii) a causal link between such dumped imports and the alleged injury.

 

The onus is on the DI to file evidence in support of its case on the above- mentioned factors.

 

Once an application is received,it should be examined for the following:

 

(i) Identification of PUC and like Article as detailed in Chapter 3 of this Manual.

(ii) DI standing of the applicants as detailed in Chapter 4 of this Manual.

(iii)The suitability of POI and the injury period as detailed in Chapter 5 of this Manual.

(iv) The accuracy and adequacy of the evidence provided in the application should also be examined.

 

The team should put up a detailed note as prescribed vide Circular 6/2018 dated 26 September, 2018.

 

The Investigation team shall inform the Government of the subject country through their Embassy in India about the receipt of an application for initiation of an investigation4. This letter shall be sent prior to the issuance of the initiation notification particularly in the original investigation (Rule 5 is not applicable for MTR/SSR investigation hence prior intimation is not mandatory, but it is desirable). However, in certain bilateral trade arrangements, longer periods are specified for giving advance intimation such as:

 

S. No.	Trading partner	Timelines
1	Japan	10 working days in advance of the date of initiation with a copy of full text of the application.
2	Singapore	7 working days in advance of the date of initiation
3	Korea	10 working days in advance of the date of initiation

 

Only after the Authority is satisfied that there is sufficient (prima facie) evidence regarding dumping, injury and causal link, can the Authority initiate an investigation.

 

It has to be borne in mind that even at the time of initiation all such elements and factors, that form part of Final Findings, are needed to be examined for initiation of an investigation, though the same stringent yardstick may not be applied. This analysis is not required to be indicated in the initiation notification. The law only prescribes that the Authority is required to be “satisfied” that the information with regard to dumping, injury and causal link is sufficient to justify the initiation of an investigation. The level of evidence is not expected to be the same as may be required for the issuance of Final Findings.

 

Procedure to be followed for Rejection of an Application: In the event, it is found that satisfactory evidence regarding any of the preconditions of initiation mentioned above does not exist then, the application filed by or on behalf of the DI may be rejected. An order of rejection should be issued with the approval of the DG in accordance with the principles of natural justice and it must be a well-reasoned speaking order passed after granting an opportunity of hearing of the DI.

 

In case of Review applications: In case it is decided by the Authority that the case is not fit for initiation of the investigation, then a speaking order containing the reasons for the closure of the investigation should be issued to the applicants after granting an opportunity of hearing to the applicant. The details of the hearing and submissions made, orally and written, should be clearly mentioned in the rejection order.

 

B. NOTIFICATION-PROCEDURE AFTER THE DECISION OF   INITIATION

 

Once a decision for initiation of investigation has been taken by the Authority, the following steps have to be taken:

 

- The initiation notification has to be drafted clearly indicating the PUC & like articles, DI Standing, Subject Countries, Normal Value, Export Price, POI &Injury Investigation Period, Dumping Margin, Injury,and Causal Link, reasons for initiation, prescribed time for filing of response and registration of interested parties. Sample formats of Initiation Notification for various types of investigation are attached as annexures to this chapter.

 

- The initiation notification has to be issued in English and Hindi. The original notification has to be signed by the DA. The original signed copy (in English and Hindi) of the initiation notification has to be sent to the Government Press on the very same day that it is signed.

 

- A copy should also be sent to TRU, Department of Revenue with a D.O. letter for their information in the case of an original investigation and Mid-term review. In the case of sunset review and new shipper review, the TRU should be requested to take further necessary action by way of issuance of follow-up notification. Thereafter, the initiation notification must be sent to NIC with a copy to the trade policy division for uploading to the DGTR website immediately.

 

- A copy of it is also marked to the Administration as per internal instructions vide Office Order No. 32/2018 dated 13th September 2018 for the compilation of all the Confidential Notifications.

C. COMMUNICATION

 

The initiation notification should be immediately communicated to all known stakeholders. There is no need to wait for the Gazette copies while sending the documents to the concerned interested parties. A copy of the signed covering letter and description of the website link should be sent to all concerned.

 

The applicant DI should be asked to provide an updated non-confidential version of the application. Such an application should, inter alia, include the information which has been filed by the DI subsequent to the submission of the application, if any. The revised and updated application and its non-confidential version should contain all the information submitted by DI,including all such information provided by the DI in response to queries by the Authority.

 

The applicant DI is required to furnish two hard copies each of the confidential and non-confidential version each. Further, the DI must be asked to furnish several copies of the non-confidential version in soft form (CDs) for sending to all known interested parties.

 

The covering letter should be drafted such that it mentions all the general as well as specific instructions related to a particular investigation. Time of 40 days from the date of initiation shall be allowed for the registration of the interested parties. A template for the covering letter is attached herewith with this chapter.

 

The interested parties are required to fill a proforma stating their interest and relevant details. This registration shall be done through the online filing system once it has been activated. It is pertinent to mention that interested parties will not be given additional time to file questionnaire response if not filed within the stipulated time. Please refer to Trade Notice No.11 dated 10.9.2018 (Attached herein).

 

The supplementary questionnaire should be sent by way of registered post/ speed post to all the known Exporters/Importers/Users/Domestic Producers and the Embassies along with the non-confidential version of the updated application. It should also state the URL address link giving details of the initiation notification and formats for filing questionnaire responses by the respective exporters/ importers/ users. A record of dispatch is to be maintained in the file.

 

Based on submissions by DI or on the basis any other prima facie evidence indicating that an exporting entity may not be operating under market economy conditions on account of any of the reasons indicated in para 7 & 8 of Annex I of the Rules, a supplementary questionnaire may be issued, as per the template annexed to this chapter, seeking necessary information for extending market economy status.

 

As a matter of practice, a letter is also sent to Associations/Federations/ Chambers of Commerce/Export Promotion Councils involved with the subject goods for the dissemination of information to all the stakeholders with a view to encourage maximum participation in the proceedings.

 

Any party who is included after initiation on making itself known within the stipulated time should be supplied with a non-confidential version of the application through email or CD.

 

The team should prepare a list of interested parties within 80 days from the date of initiation and keep a copy in the NCV folder and also upload it on the DGTR website.

 

D. MAINTENANCE  OF  INSPECTION FOLDER

Maintenance of a proper NCV folder is an important part of the investigations from the point of view of principles of natural justice, transparency and due process of law. In pursuance of this objective, the following guidelines are suggested:

 

- The folder should contain the application of the DI which forms the basis of the decision by the DA.

 

- In case the applicant was asked to submit any revised information subsequent to the submission of their original application, then an updated application has to be submitted by the applicant(s) in hard copy and soft copies. If the additional information has not altered the contents of the initial application, the applicant may supply such information in the form of an addendum under the title “non-confidential version of the information supplied subsequent to the initiation application”. However, if the material information itself has undergone a change, the non-confidential version of the updated application should be filed in addition to the addendum. The updated application must contain all the information filed by the applicant from the time of filing the initial application and the initiation of the investigations.

 

- The applicant DI should normally be allowed a period of one week to complete the exercise. Copies of all additional documents should bear a stamp “NCV for Public File”.

 

- The team should not accept any document or communication,from any of the interested parties, marked as “confidential”unless the same is accompanied by a non-confidential version appropriately marked.

 

- All documents in the NCV Folder should be chronologically placed and appropriately page numbered. An index of the same along with a brief mention of the subject should also be maintained.

 

- Copies of the non confidential version of all the responses received from interested parties should be kept in the folder. Copy of NCV of submissions and other communications should also be kept in the folder.

 

- In case a response is filed by the concerned Associations/Chamber of Commerce/Industry, it should contain details of members of the PUC or the downstream product in case of user industries. It should contain import/export details of PUC and other procurement details of the product.

 

- A list of all interested parties along with details such as the name of the Counsel, the address for contact, contact person, email id etc. should be maintained and kept in a folder.

 

- An inspection index should be created in the folder. The inspection of the folder should be allowed only to the authorized representative of the interested party. Whenever the representative inspects the folder or takes any document, the details thereof should be mentioned along with the signatures and contact details of that representative.

 

- The DGCI&S data is not to be kept in the folder although upon a specific request of the interested party (or on their behalf) as per Trade Notice 1/2017 dated 8.12.2017 & Trade Notice 1/2018 dated 1.2.2018,the NCV data in hard copy is made available to the requested party. Soft copy of the same can be obtained by them directly from DGCI&S on specific authorization by the Directorate.

 

- The non-confidential version of all the responses and submissions, as well as the communications made during the course of the investigation, should be kept in the folder for inspection by the interested parties and/or their authorized representatives.

 

- The Disclosure Statement is issued (via e-mail) to specific interested parties who have participated in the investigation and a NC copy should be kept in the inspection folder. However, the comments received on Disclosure Statement are not kept in the inspection folder as this would keep on increasing the chain of submissions and counter submissions thereby delaying the outcome of the investigation.

 

- The NCV Final Finding Notification is sent to Government Press for Gazette notification and also uploaded on the DGTR website. Therefore, there is no need to keep it in the NCV folder. The folder is sent to the record room along with the case file after the issues of final finding notification.

 

E. REGISTRATION  OF  INTERESTED PARTIES

 

Rule 6 (4) of the Anti-Dumping Rules, inter-alia, states that the Designated Authority may call for any information and such information shall be furnished by concerned persons in writing within 30 days from the date of receipt of the notice or within such extended period as the Designated authority may allow on sufficient cause being shown.

 

As per general practice, the Designated Authority grants 40 days’ time period to all interested parties from the date of publication of the initiation notice to file their responses. Further extension can be permitted on a case to case basis depending on the facts and circumstances of each case.

 

In order to bring uniformity in the procedure, the following procedure has been prescribed vide Trade Notice No. 11/2018 dated 10th September 2018. Where a party interested in participating in an investigation, such party shall, in writing, request the Authority to include it as an interested party within 40 (forty) days of initiation of investigation or such extended period as may be allowed by the Authority. Any request at a later stage for registration as an interested party shall not be entertained.

 

All requests for registration shall include the following details:

 

Name and Designation of the Officer applying

Contact / Phone Numbers

Contact E-Mail id

Name and Address of the entity, on whose behalf the registration is being sought

Details of Investigation & PUC/Countries

Whether Domestic Producer/ Importer/ User/ Exporter/ Association

If represented by any Law Firm, details thereof.

An interested party is also obligated to file its questionnaire response in the required formats within the timeline prescribed by the Authority or the extended timeline as may be prescribed by the Authority. When an interested party files its questionnaire response within the prescribed timelines, such entity shall be deemed to be registered as an interested party with the Authority, even if it has not submitted an application in writing, requesting for registration as an interested party.

 

In case, an interested party which has registered itself with the Authority within the timelines prescribed in paragraph 6.26.1 above, but does not file a questionnaire response, this shall not prevent such interested party from participating in other stages of the investigation by filing legal submissions, attending the public hearing, filing disclosure comments etc. However, the Designated Authority may grant more weight age to the submissions made by such interested party, which has filed the duly prescribed questionnaire response as it allows the Authority to verify the authenticity of the data/information submitted to the Authority by corroborating the same with the facts during verification.

 

A list of interested parties shall be maintained by the Designated Authority and placed in the public file within 80 days of the publication of notice of initiation. All the interested parties are advised to follow the time-lines stipulated in an investigation for filing the submissions.

 

If a party has neither registered itself with the authority within the timelines prescribed in paragraph 6.26.1 above nor filed any questionnaire response, such party shall not be allowed to participate in subsequent stages of the investigation.

 

It may be clarified here that vide the Trade Notice No. 11/2018 dated 10.09.2018, the Authority reserves the right to include any other entity as an interested party if it is in the larger interest of the investigation impacting the findings in any way.

 

Source: Manual Of Operating Practices For Trade Remedy Investigations