G/ADP/Q2/KGZ/2  
 
20 October 2016 
(16-5723) Page: 1/7 
Committee on Anti -Dumping Practices  Original: English  
 
 ARTICLE 16.4 OF THE AGREEMENT  
REPLIES TO QUESTIONS1 OF UKRAINE TO THE KYRGYZ REPUBLIC  REGARDING  
ANTI-DUMPING INVESTIGATIO NS CONCERNING IMPORT S OF BARS AND  
RODS AND  FERROSILICOMANGANESE  ORIGINATING IN UKRAI NE TO  
THE TERRITORY OF THE  EURASIAN  ECONOMIC UNION  
The following communication, dated 19 October 2016, is being circulated at the request of the 
delegation of the Kyrgyz Republic . 
 
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The Kyrgyz Republic thanks Ukraine for the questions posed in connection with the anti -dumping 
investigation s on bars and rods and ferrosilicon manganese originating in Ukraine.  
Question 1  
According to the Recommendation of the Committee on Anti -Dumping Practices and the 
Protocol on Application of Safeguard, Anti -Dumping and Countervailing Measures to 
Third Coun tries, Annex No. 8 to the Treaty on  the Eurasian Economic Union 
of 29.05.2014 (hereinafter – the Protocol of EAEU) the period of data collection for 
dumping investigations in EAEU normally should be twelve months, and in any case not 
less than six months.  
Along with this, period for dumping investigation for the case on bars and rods was 
established from 01.01.2013 to 30.09.2013, i.e. 9 months and for the case on 
ferrosilicomanganese the period was from 01.01.2013 to 30.06.2014, i.e. 18 months.  
Would Armeni a, Kazakhstan, the Kyrgyz Republic and the Russian Federation  clarify 
what methodology  is usually used for establishing the periods for a dumping  
investigation and how it complies with the Recommendation of the Committee on 
Anti-Dumping Practices of 16 May  2000 ? In addition, what factors were taken into 
account within these particular cases  when the periods of dumping investigations were 
established?  
Reply  
 
The Agreement on Implementation of Article VI of the GATT 1994 (hereinafter – "Anti-Dumping 
Agreemen t") does not provide for any specific requirements for determining an appropriate period 
of investigation, for the examination of either dumping or injury. The Committee on Anti -Dumping 
Practices adopted the Recommendation Concerning the Periods of Data Co llection for 
Anti-Dumping Investigations (hereinafter – "Recommendation ").2 The recommendation provides 
that, as a general rule, the period of data collection for dumping investigations normally should be 
twelve months, and in any case no less than six mon ths, ending as close to the date of initiation as 
is practicable.  
                                                
1 G/ADP/Q2/ KGZ/1. 
2 Recommendation Concerning the Periods of Data Collection for Anti -Dumping Investigations, G/ADP/6,  
adopted by the Committee on Anti -Dumping Practices on 5 May 2000.  G/ADP/Q2/KGZ/2  
 
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  In line with the Recommendation the Protocol on Application of Safeguard, Anti -Dumping and 
Countervailing Measures with Respect to Third Countries, Annex No. 8 to the Treaty on the 
Eurasian  Economic Union of 29 May 2014 (hereinafter – "Protocol ") provides that the period of 
investigation for which data is examined for the purpose of determining the existence of dumped 
imports shall be established by the investigating authority ( see paragraph  41 of the Protocol). 
This period should normally be 12 months preceding the date of filing the application for 
investigation, for which the statistical data is available, but in any case no less than 6 months.  
Hereby,  when establishing periods for a dumpi ng investigation the Department for Internal 
Market  Defence of the Eurasian Economic Commission (hereinafter – "DIMD ") follows the 
Recommendation and the Protocol.  
Moreover, when establishing periods for a dumping investigation, the DIMD takes into account  the 
particular circumstances of a given investigation to ensure that a period is appropriate in each 
case. The DIMD may, if possible, consider practices of firms from which data will be sought 
concerning financial reporting and the effect this may have on  the availability of accounting data. 
Other factors that may be considered include the characteristics of the product in question, 
including seasonality and cyclicality, and the existence of special order or customized sales.  
As far as the periods of dump ing investigation in the anti -dumping investigations on bars and rods  
and ferrosilicon manganese  originating in Ukraine are concerned, the DIMD has set them bearing 
in mind the requirement for the period to end as close to the date of initiation as is prac ticable. 
For the anti -dumping investigation on ferrosilicon manganese originating in Ukraine the DIMD has 
taken into account the simultaneous initiation of the countervailing duty investigation on 
ferrosilicon manganese  originating in Ukraine wherein the p roduct subject to the investigation is 
the same ( see Section 1.3 of the final Report).  
Question 2  
Initiation date of the anti -dumping investigation concerning imports of bars and rods is 
20 November 2013.  
Taking into consideration provisions of Article 5. 10 of the Agreement on Implementation 
of Article  VI of the GATT 1994 (hereinafter - the Antidumping Agreement) as well as 
provisions of Article 217.2 of the Protocol of EAEU the final date of this investigation 
should be 20  May 2015, but the final decision  was taken on 29.03.2016.  
Pursuant to the Protocol of the EAEU the date of conclusion of the antidumping 
investigation is the date of consideration of the report on the results of the investigation 
by the EEC and draft of the relevant decision. The final r eport was considered by the EEC 
on 29.03.2016, which means that investigation was being conducted during 28  months.  
Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation clarify 
what was the legal base for 28 -month period of conducting the antidumping 
investigation on bars and rods?  
Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation also 
explain how conclusion of the antidumping investigation on bars and rods on 29.03.2016 
complies with Article  5.10 of the Antidump ing Agreement?  
Reply  
 
According to the Protocol the date of conclusion of an investigation shall be the date on which the 
Commission considers the report pursuant to the investigation (see paragraph 219 of the 
Protocol). The report on the results of the i nvestigation on bars and rods (hereinafter referred to 
as "Report ") and the proposal on necessity of application of an anti -dumping measure was 
considered by the Commission on 28 April 2015, within the period of 18 months, which is 
consistent with Article 5.10 of the Anti -Dumping Agreement.  G/ADP/Q2/KGZ/2  
 
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  Question 3  
Article 3.1 of the Anti -Dumping Agreement  requires, inter alia, that the injury 
determination "shall be based on positive evidence ". The conditions for imposing 
anti-dumping measures, if dumped imports are cau sing injury, have to be present at the 
time of imposition of the measure, to the extent practically possible.  
The data considered concerning dumping, injury and the causal link should include, to 
the extent possible, the most recent information, taking int o account the inevitable 
delay caused by the need for an investigation, as well as any practical problems of data 
collection in any particular case.  
Panel Report, Mexico – Anti-Dumping Measures on Rice concluded that given the 
passage of time (nearly three -year) between the period of investigation and the date of 
imposition of the measures, the information lacks credibility and reliability, thereby 
failing to meet the criterion of "positive evidence " pursuant to Article 3.1 of the 
Anti-Dumping Agreement.  
The injury investigation period on bars and rods was established from 1 January 2010 to 
30 September 2013, and by April 2016 there is a 2.5 -year gap between the investigation 
period and imposition of the measure. Therefore, information provided in the report  on 
bars and rods lacks credibility and reliability.  
Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation clarify how 
the decision to impose antidumping measures on bars and rods complies with Article 3.1 
of the Anti -Dumping Agreement in particular the requirement that the injury 
determination should be "based on positive evidence "? 
Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation also 
explain in what way the EEC as the authority responsible for conducting the a ntidumping 
investigation ensures that injury determination complies with Article 3.1 of the 
Anti-dumping Agreement in particular the requirement that the injury determination 
should be "based on positive evidence "?  
If there are some particular provisions in the EAEU antidumping legislation stipulating 
principle of "positive evidence " during injury determination within the meaning of its 
interpretation by WTO would Armenia, Kazakhstan, the Kyrgyz Republic and the 
Russian  Federation please clarify it.  
Reply  
 
First, we would like to note that any findings of a panel or the Appellate Body should be read in 
light of the particular circumstances of the case. As regards the matter considered by the panel in 
Mexico – Anti-Dumping Measures on Rice, it concerned the issue of the time gap between the end 
of the investigation period and the initiation of the investigation. In particular, in Mexico – 
Anti-Dumping Measures on Rice  such a gap constituted 15 months. As the Appellate Body clarified 
"it is not only the remote ness of the period of investigation, but also these other circumstances 
that formed the basis for the Panel to conclude that a prima facie  case was established ".3 
In addition, the Appellate Body stated as follows : 
We agree with Mexico that using a remote i nvestigation period is not per se  a violation 
of Article 3.1. In our view, however, the Panel did not set out such a principle, as its 
findings relate to the specific circumstances of this case.4 
To recall, the period used for the injury analysis in the an ti-dumping investigation on bars and rods  
originating in Ukraine ends only 1,5 months prior to the initiation of the investigation. The 
investigation at issue was initiated on 20 November 2013, whereas the period of investigation 
                                                
3 Appellate Body Report, Mexico  – Beef and Rice , para. 167.  
4 Appellate Body Report, Mexico  – Beef and Rice , para. 167.  G/ADP/Q2/KGZ/2  
 
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  covers the data period fro m 1 January 2013 to 30 September 2013. On 14 May 2015 the Report 
which contained final results of the anti -dumping investigation on bars and rods was published on 
the official website of the Eurasian Economic Commission. For these reasons we consider that the 
information provided in the Report is credible and reliable, as it includes the most recent 
information prior to initiation of the investigation. Therefore, the injury determination in the 
anti-dumping investigation at issue is based on "positive evide nce" in the meaning of Article 3.1 of 
the Anti -Dumping Agreement. The decision to impose an anti -dumping measure is in line with 
Article  3.1 of the Anti -Dumping Agreement.  
With regard to the requirement that the injury determination should be based on pos itive evidence 
the EEC follows the interpretation elaborated by the Appellate Body in US – Hot-Rolled Steel. 
Specifically, the Appellate Body clarified that "[t]he term "positive evidence " relates, in our view, 
to the quality of the evidence that authoriti es may rely upon in making a determination. The word 
"positive " means, to us, that the evidence must be of an affirmative, objective and verifiable 
character, and that it must be credible ".5 Therefore, an investigating authority cannot base its 
injury dete rmination on information that is not credible, affirmative, objective and verifiable.  
The Protocol specifies that the "material injury to a domestic industry of the Member States " is a 
deterioration in the position of the domestic industry of the Member St ates confirmed by positive 
evidence, which may manifest itself, in particular, in a decline in production of the like product in 
the Member States and volume of its sales in the market of the Member States, in a decline in 
profitability of such product, as  well as negative effects on inventories, employment, level of 
wages in the domestic industry of the Member States and the level of investment in the domestic 
industry of the Member States ".6 Hence, the evidentiary standard for injury determination in the 
EAEU involves confirmation by positive evidence.  
Question 4  
According to footnote 2 of the Antidumping Agreement, sales of the like product 
destined for consumption in the domestic market of the exporting country shall normally 
be considered a sufficient quantity for the determination of the normal value if such 
sales constitute 5% or more of the sales of the product under consideration to the 
importing Member.  
In the framework of the case on bars and rods, 5% test was made on the month -by-
month basis with in the established 9 -month period for dumping investigation instead of 
making the calculation for the whole 9 -month period.  
Could Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation clarify if 
there are some particular provisions in the EAE U antidumping legislation stipulating 
principle of making 5% test on month -by-month basis?  
Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation clarify 
what methodology or which periods are usually used by competent authorities for 
making 5% test during period for dumping investigation?  
Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation also 
explain how the used methodology in bars and rods case complies with Article 2.2 of the 
Antidumping Agreement and in partic ular with footnote 2 of the Antidumping 
Agreement?  
Reply  
 
According to Article 2.2 of the Anti -Dumping Agreement   
[w]hen there are no sales of the like product in the ordinary course of trade in the 
domestic market of the exporting country or when, becaus e of the particular market 
                                                
5 Appellate Body Report, US – Hot-Rolled Steel , para. 192.  
6 Protocol  on Application of Safeguard, Anti -Dumping and Countervailing  Measures with Respect to 
Third Countries, para. 2. See the text of the Protocol as notified to the WTO (G/ADP/N/1/RUS/2, 
G/ADP/N/1/KAZ/1/Rev.1) . G/ADP/Q2/KGZ/2  
 
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  situation or the low volume of the sales in the domestic market of the exporting 
country, such sales do not permit a proper comparison, the margin of dumping shall 
be determined by comparison with a comparable price of the like p roduct when 
exported to an appropriate third country, provided that this price is representative, or 
with the cost of production in the country of origin plus a reasonable amount for 
administrative, selling and general costs and for profits.  
Footnote 2 of Article 2.2 of the Anti -Dumping Agreement provides as follows:  
[s]ales of the like product destined for consumption in the domestic market of the 
exporting country shall normally be considered a sufficient quantity for the 
determination of the normal value  if such sales constitute 5 per cent or more of the 
sales of the product under consideration to the importing Member, provided that a 
lower ratio should be acceptable where the evidence demonstrates that domestic sales 
at such lower ratio are nonetheless o f sufficient magnitude to provide for a proper 
comparison.  
Thus Article 2.2 of the Anti -Dumping Agreement in conjunction with footnote 2 does not specify 
whether the 5 per cent test should be made on a monthly basis or for the entire period of 
investigatio n. 
The EAEU anti -dumping legislation contains the similar provisions (see paragraphs 43, 54 of the 
Protocol).  
The period for whi ch the 5%  test is usually made by the DIMD depends on the period for which the 
dumping margin is determined.  
Article 2.2 of the Anti-Dumping Agreement shall be read in conjunction with Article 2.4 of the 
Anti-Dumping Agreement7, which provides that a  "fair comparison shall be made between the 
export price and the normal value. This comparison shall be made at the same level of trad e, 
normally at the ex -factory level, and in respect of sales made at as nearly as possible the same 
time". 
In the anti -dumping investigation concerning bars and rods originating in Ukraine the existence of 
margin of dumping during the investigation period was established on the basis of a comparison of 
a weighted average normal value for each month with a weighted average of prices of all 
comparable export transactions for each corresponding month of the investigation period.  
In light of abovementione d, the DIMD has conducted the 5%  test on the month -by-month basis in 
order to make  fair comparison between the export price and the normal value in respect of sales 
made at as nearly as possible the same time.  
Question 5  
According to Article 2.4.2 of the Antid umping Agreement, the existence of margins of 
dumping during the investigation phase shall normally be established on the basis of a 
comparison of a weighted average normal value with a weighted average of prices of all 
comparable export transactions or by  a comparison of normal value and export prices on 
a transaction -to-transaction basis.  
In the framework of the case on bars and rods, dumping margins were calculated on the 
month -by-month basis within the established 9 -month period for dumping investigati on 
instead of making the calculation for the whole 9 -month period or on a transaction -to-
transaction basis.  
Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation clarify 
what methodology in this case was used for making dumping determin ations?  
                                                
7 Article 2.4 provides for a general obligation t o make a "fair comparison" between export price and 
normal value that informs all of Article 2 of the Anti -Dumping Agreement.  G/ADP/Q2/KGZ/2  
 
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  Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation also 
explain how the used methodology of dumping margin calculation in bars and rods case 
complies with Article 2.4.2 of the Antidumping Agreement?  
Reply  
 
Article 2.4.2 of the Anti -Dumping Agreement states as follows:  
Subject to the provisions governing fair comparison in paragraph 4 , the existence of 
margins of dumping during the investigation phase shall normally be established on 
the basis of a comparison of a weighted a verage normal value with a weighted 
average of prices of all comparable export transactions or by a comparison of normal 
value and export prices on a transaction -to-transaction basis. (emphasis added)  
Article 2.4 of the Anti -Dumping Agreement provides that  "[a] fair comparison shall be made 
between the export price and the normal value. This comparison shall be made at the same level 
of trade, normally at the ex -factory level, and in respect of sales made at as nearly as possible the 
same time ". 
In the anti -dumping investigation on bars and rods originating in Ukraine the existence of margin 
of dumping during the investigation period was established on the basis of a comparison of a 
weighted average normal value for each month with a weighted average of pric es of all 
comparable export transactions for each corresponding month of the investigation period. For the 
calculations related to the margin of dumping please refer to Section 3.5.1.6 of the Report.  
The calculation of the margin of dumping in bars and rod s case on the monthly basis is made to 
provide a fair comparison between the export price and the normal value in respect of sales made 
at as nearly as possible the same time. Hence the applied methodology of the calculation of 
dumping in bars and rods cas e is consistent with Article 2.4.2  of the Anti -Dumping Agreement.  
For a detailed reasoning of the applied methodology and analysis of Ukrainian exporter - group of 
companies "Metinvest " comments on using the monthly dumping determination - please refer to 
the Report published on the official website of the Eurasian Economic Union on  14 May 2015 . 
It is worth noting that during an anti -dumping investigation the month -by-month methodology for 
determining the dumping margin was applied to all Ukrainian producer s. Monthly calculation of the 
margin of dumping has been applied in respect of both "Metinvest " group of companies 
(see Section 3.5.1 of the Report), and PJSC "ArcelorMittal Kryvyi Rih " (see Section 3.5.2 of the 
Report). At the same time PJSC "ArcelorMitta l Kryvyi Rih ", which is the biggest Ukrainian exporter 
of bars and rods to the Eurasian Economic Union during the investigation period, didn 't object to 
the applied methodology.  
Question 6  
In bars and rods case as well as in ferrosilicomanganese case it wa s stipulated in 
reports that there were many indicators showing the dynamic development of 
companies and the positive state of the overall market. In particular, the main indicators 
that could be influenced by imports such as sales volumes on the EAEU mark et and 
revenues from sales on the EEU market had positive trend.  
Given that at the same time, there also was influence of other factors injuring the 
domestic industry such as competition between the domestic producers, growth of the 
production costs, impo rts from other countries and volume of export, the authorities, 
pursuant to Article  3.5 of the Anti -dumping Agreement, had to examine these other 
factors.  
Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation please 
explain what methodo logy is used by the EEC to consider separate and aggregate 
influence of all other factors on the domestic industry?  G/ADP/Q2/KGZ/2  
 
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  Would Armenia, Kazakhstan, the Kyrgyz Republic and the Russian Federation also clarify 
how the conclusions of the EEC on the "other factors " established in reports on both 
cases comply with Article  3.5 of the Anti -dumping Agreement in particular with the 
requirement that injuries caused by these other factors must not be attributed to 
the dumped imports?  
Reply  
 
The EEC takes the following app roach to non -attribution under Article 3.5 of the Anti -Dumping 
Agreement. Once there are known factors that may be injuring the domestic industry at the same 
time as the dumped imports, the EEC examines each of these factors individually and makes a 
determ ination as to whether each factor is indeed injuring the domestic industry. If any injurious 
effects are identified, the EEC makes an assessment of the nature and extent of such effects. 
Depending on the circumstances, the EEC may also examine the collecti ve effects of the other 
known factors.  
The above approach was also followed by the EEC in the Bars and Rods case and in the 
Ferrosilicon Manganese case. None of the other known factors examined was found to sever the 
causal relationship between the dumped imports and the injury. The explanations and specific 
findings with respect to each of the other factors examined can be found in the relevant sections of 
the reports. (For the Bars and Rods  case please refer to Section 5.3 of the final report; for the 
Ferrosilicon Manganese  case please refer to Section 1.7 (in particular subsections XIV, XV) and 
Section 5.3 of the final report.)  
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