1. Legal Provisions

 

Article VI of the GATT refers to the Period of Investigation (“POI”) as the period of data collection for dumping investigations but the ADA and the AD Rules do not provide established guidelines for determination of POI. However, the Working Committee on Anti-dumping practice has provided guidelines for determining period or periods of data collection which may be appropriate for the examination of dumping and of injury. These guidelines are as follows:

 

“As a general rule:

 

(a) the period of data collection for dumping investigations normally should be twelve months, and in any case no less than six months, ending as close to the date of initiation as is practicable;

(b) the period of data collection for investigating sales below cost, and the period of data collection for dumping investigations, normally should coincide in a particular investigation;

(c) the period of data collection for injury investigations normally should be at least three years, unless a party from whom data is being gathered has existed for a lesser period, and should include the entirety of the period of data collection for the dumping investigation;

(d) In all cases the investigating authorities should set and make known in advance to interested parties the periods of time covered by the data collection, and may also set dates certain for completing collection and/or submission of data. If such dates are set, they should be made known to interested parties.”

 

In order to incorporate the aforementioned guidelines of Working Committee on Anti-dumping practice, the Directorate had issued a Trade Notice No. 2 of 2004 dated 12th May 2004 (attached to this chapter), which forms the basic guidelines in this regard. The relevant extracts of para 2(iii) of the said trade notice are detailed as under:

 

“Application should invariably contain information and data relating to the proposed period of investigation (“POI”) and previous three financial years. There should be no gap but there can be overlap between the POI and the previous financial years. The data for previous three years would be utilized for trend analysis for determination of injury.”

 

2. Operating Practice

 

The team is required to determine:

 

i. Period of Investigation (“POI”): for the purposes of the determination of dumping margin, the impact of dumping and injury margin; and

ii. Injury Investigation Period (“IIP”): for injury analysis.

The general rule is to consider the total period which includes POI and three preceding financial years for analysis and impact study. There can be exceptions to this rule in special circumstances as explained in the subsequent paragraphs.

 

There can be an overlap of the periods as POI may not necessarily be a financial year in each case, whereas IIP is always taken as financial years. However, there should not be any gap in the periods.

 

While deciding the POI and IIP, it must be ensured that a minimum of four complete years of details is available.

 

Period of Investigation (POI)

 

The POI proposed in the application should be as latest as possible, and in any case not more than six months old as on date of initiation. If the proposed POI is more than six months old, then applicant may be asked to furnish revised application with fresh data.

 

The POI should normally be twelve months. As far as possible attempt should be made to identify POI as per the financial year, as it will make analysis easier and more accurate. An attempt should be made to select POI in such a way that at least one complete financial year is included in the POI to ensure availability of audited details at least for a part period of POI. It is always desirable to add period in terms of quarters (as the financial results are prepared quarter wise only)instead of any odd number of months as it may be difficult for other interested parties to submit their audited figures for such odd period.

 

There have been cases where the Directorate has allowed POI for 15 months or 18 months, depending on the facts of the case. In exceptional circumstances, POI for nine months or six months has also been accepted supported by proper justification.

 

If the POI is different from financial year/ accounting year of the company, the certified copy of the balance sheet/profit & loss account has to be provided by the DI/other stakeholders. However, no initiation can be delayed merely because the POI is different from the financial year of the  company.

 

The investigation team can suo motu revise the POI by one or two quarters, with the approval of DG, at the time of initiation of investigation with a view to obtain more updated and representative data. The revision of POI should be communicated to the Applicant immediately in order to enable him to update the data accordingly so that revised data can be placed in the inspection folder.

 

No request for a change in POI can be considered after initiation.

 

As the Post POI data needs to be considered for examination in case of threat of injury and likelihood scenario, the same should be preferably mentioned in the initiation notification itself that Post POI data shall be considered. In such a case, the post POI data could either be given by the applicant or sought by the investigation team from DGCI&S or responding exporters.

 

POI for new shipper review cases  (“NSR”)

 

POI determination is different in NSR cases. The prospective POI was considered in some of the recent cases. However, it allows the NSR applicant a flexibility in fixing the export price which is not desirable. Therefore, the following options could be considered:

 

a. Where anti-dumping duties were originally based on “sampling” method during the original investigation for the relevant subject country i.e., sampled units were each given a separate rate and other co-operative units were given the weighted average rate of the sampled units. It may be considered to extend the said weighted average rates to the NSR applicant to expedite the findings after following the due process of investigation.

b. Another option could be to consider POI as part retrospective and part prospective,at the time of initiation. The actual period can be decided on case to case basis.

 

It may be desirable that the exporter has some track records of actual exports to India on the date of filing of NSR application in order to establish its credible intent to export to India. This is in line with the fact that similarly placed producers/exporters are not considered for individual rate if these units have not exported during POI of an anti-dumping investigation.

 

Injury investigation period (“IIP”) for injury analysis

 

The injury investigation period is generally for three immediate preceding years plus the POI selected for dumping margin analysis. Any period longer than this can be considered provided the applicant has good reasons to propose the longer injury period.

 

The period of data collection for injury investigation should be at least three years. However, if an applicant has been in existence for less than three years, then the data available for the entire period should be taken into consideration.

 

Even in cases of material retardation to the industry, the data for a period lesser than three years can be considered if the industry has been inexistence for a shorter period. In such a case the data for three years is obviously not available and hence cannot be furnished by the industry. Therefore, monthly/quarterly/half yearly analysis may be desirable.

 

3. Illustrations

 

If the proposed POI is July 2016-June 2017, and IIP is April 2013- March 2014; April 2014 - March,2015 and April, 2015-March, 2016, then the applicant should be advised to revise the POI as April 2016 to June 2017.

 

POI as December 2016 to March 2018 and IIP April 2013-March 2014; April 2014- March 2015 and April 15-March 2016; then the applicant should be advised to revise the IIP as April 2014-March 15; April 2015-March 2016-April 2016-March 2017. POI can also be considered for revision, if desired to April 2017-

 

Source: Manual Of Operating Practices For Trade Remedy Investigations