Wt/tpr/M/313/Add. 1 31 July 2015

Question 24: Does India regulate the actual end use of all boric acid within its domestic market, for both imported boric acid, as well as boric acid products manufactured in India?
Reply: Boric Acid is an insecticide and regulated in India. Registration is required to be obtained as per Section 9 of the Insecticides Act, 1968 for use for insecticidal purposes, whereas an import permit is required to be obtained from the Registration Committee, constituted under Section 5 of the said Act, for non-insecticidal purposes. Domestic manufacturers, who wish to manufacture and sell Boric Acid for non-insecticidal purposes are required to submit production and sale particulars to the Registration Committee in the prescribed proforma which is available on the official websites http://www.cibrc.nic.in and http://agricoop.nic.in/welcome.html
Question 25: Can an interested trader go to the Ministry of Commerce and Industry for any non agricultural request for an end use/no-objection certificate?
Reply: It is not the Ministry of Commerce, but the User Ministry/Department and the Industry Department/District Industry Centres under the State Governments who have been authorized to process and issue end-use certificates depending on the end use. A list of authorized nodal agencies for issuance of End-Use certificate is available at http://www.cibrc.nic.in and http://agricoop.nic.in/welcome.html
Question 26: Can sub-central entities submit recommendations on end use/no objection certificates directly to the Registration Committee, or must they submit their recommendation through another Ministry for that Ministry’s additional review and approval before it is sent to the Registration Committee?
Reply: The Registration Committee accepts the end use certificate, issued by the identified authorities. The said certificate is attached by the applicant directly with the application for issuance of import permits along with other necessary documents. The application so submitted in the prescribed proforma is considered for issuance of import permit by the Registration Committee.
Question 27: If the Ministry of Agriculture receives a recommendation from a District Industries Center to grant an end use certificate, and the Ministry of Agriculture agrees with the recommendation – does the Ministry of Agriculture then submit the recommendation to the Registration Committee? f so – this would then appear to be a three step process. How long does this process take?
Reply: As replied in Q.26 above
Question 28: If additional boric acid is required by the same importer within the calendar year, do they have to start the process from the beginning, and request a new end use/no-objection certificate?

Reply: In case of requirement of additional quantities of boric acid, a fresh end use certificate is required which is granted on request.
Question 29: What is the purpose of maintaining importer-specific quantitative limits on the importation of boric acid? Are similar quantitative limits placed on domestic producers of boric acid that sell only domestically-made boric acid on the domestic Indian market?
Reply: No quantitative limits are imposed on imports, subject to requisite certification of end use.
Question 30: If an importer wants to use imported boric acid for another purpose, other than the purpose for which the end use/no-objection certificate was issued, and the importer is already in possession of the imported boric acid, are there any regulatory requirements that the importer must comply with to change the end use?
Reply: The consumption of an insecticide, including Boric Acid, imported against an import permit is monitored by the concerned Government Authority, which issues a consumption certificate and it is auditable against the end use certificate.
3.1.11 Anti-dumping, Countervailing, and Safeguard Measures

3.1.11.1 Anti-dumping and Countervailing Measures
Page 53, paragraph 3.59: The Secretariat's Report notes that, during the period of review, India made significant changes to its antidumping legislation including (ii) changes to the definition of domestic industry to bring in flexibility" as provided for in Customs notification no. 86/2011.
Question 31: Please clarify when India will notify Customs notification 86/2011 to the appropriate WTO committees. In addition, please describe the circumstances that India faced where it was not able to address this issue within its existing trade remedies legislation.
Reply: Vide Notification No.86/2011 - Customs (N.T.) dated 1^st December, 2011, Rule 2(b) of the Anti-dumping Rules was amended as follows:
2(b) "domestic industry" means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term 'domestic industry' may be construed as referring to the rest of the producers.

The provisions laid down under Rule 2(b) of the Anti-dumping Rules makes ineligible the domestic producers for the status of "domestic industry" when such domestic producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof. However, there may be situations when one or more of the domestic producers might have imported the product under consideration or their related company might have imported or exported the product under consideration for one or more bona-fide reasons as listed below:

Imports made under advance license in order to compete in the international market in the downstream product;

Imports made at the time of temporary suspension of production (due to variety of bona-fide reasons, such as fire, strike, natural calamities, etc.);

Imports made to supplement the product line by importing a particular type which the applicant may not be producing and which might constitute a very small portion of its total business operations;

Imports made for testing, research & development, seed-marketing purposes (imports of the product to test the quality and other parameters when faced with low priced imports);

Imports of the part of the product which does not form the core activity in the manufacturing of the product.

In order to meet such situations and to provide flexibility to the Designated Authority whether to include or exclude a domestic producer as domestic industry, the above amendments were brought in to the provisions laid down under Rule 2(b) of Anti-dumping Rules.

This is also available in the Public domain and can be seen at http://www.cbec.gov.in. This amendment will be notified to the WTO shortly.
Page 56, paragraph 3.67: It is unclear from the Secretariat's Report and India's published "trade notices" whether sunset (expiry) reviews must be conducted in every case prior to the expiration of an antidumping duty measure.
With this in mind, please reply to the following:
Question 32: Please clarify the review process India undertakes if no interested parties request a review of the anti-dumping duty measure prior to its expiry. Does the anti-dumping duty measure automatically expire if there is no participation from interested parties?
Reply: In terms of Rule 23 (1B) of Anti-dumping Rules, a definitive antidumping duty shall be effective for a period not exceeding five years from the date of its imposition, unless the designated authority comes to a conclusion on a review initiated before that period on its own initiative or upon a duly substantiated request made by or on behalf of the domestic industry, prior to the expiry of that period, that the expiry of the said anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry. Sunset review of anti dumping duties is not mandatory. Unless a duly substantiated application is filed by the domestic industry, the anti-dumping duties expire on completion of their validity.
Question 33: Once India’s Directorate General of Antidumping and Allied Duties makes a recommendation not to continue the measure, does Customs issue a notification that terminates the measure and halts collection of additional anti-dumping duties?
Reply: In terms of Rule 18 of the Anti-dumping Rules, the Central Government is required to act upon the recommendation of DGAD within three months from the date of publication of the final findings. If the anti-dumping duty, recommended to be withdrawn, still continues to be valid at the time of taking a decision on the recommendation of the DGAD, the Central Government may issue a notification terminating the duty.
Question 34: Please clarify whether sunset reviews only determine whether or not the antidumping duty measure may be continued, or whether the antidumping duty measure may be adjusted (either increased or decreased) as a result of a sunset review.
Reply: In sunset reviews, the recommended anti-dumping duties may be continued or modified or discontinued subject to the determination of the dumping margin or injury margin, whichever is less, and likelihood of dumping and injury.
3.1.11.2 Safeguards
Page 58, paragraph 3.83: The Secretariat’s Report notes India’s notifications to the WTO Committee on Safeguards under Article 12 of the Agreement on Safeguards.
Question 35: With regards to India’s notifications, for investigations taking place during the review period, please identify the periods of time between the date of notification and each of the following events related to the investigation: date of initiation, determination to impose provisional measures, effective date of provisional measures, determination to impose final measures, application date of final measures, termination of investigation, and date of termination of application of measures.
Reply: The review proceedings are governed by Rule 18 of Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997. In cases where period of imposition of Safeguard duty exceed three years, review has to be done not later than mid-term of such imposition.

A review initiated under sub rule (1) has to be concluded with issuance of final findings either recommending the continued imposition of safeguard duty or termination of investigation within a period of 8 months from date of initiation of such review or within such extended period as the Central Government may allow.
However, duty must be levied post review for continued imposition of safeguard duty before the expiry of duty based on which the review is initiated.
Under safeguard rules, Review proceedings do not contemplate Provisional measures and hence, time periods do not apply for the same. However, under Rule 10 of the Safeguard Rules, provisional duty applied under sub-section (2) of section 8B of the Custom Tariff Act, shall remain in force for a period not exceeding 200 days from the date on which it was imposed.
Safeguard duty or provisional safeguard duty levied shall take effect from the date of Publication of the Customs notification in the Official Gazette imposing such duty as provided under Rule 14 of Safeguard Rules.
3.1.12 Standards and Other Technical Requirements

3.1.12.1 Standards
Page 59, paragraph 3.88: The Secretariat’s Report notes that, as of December 25, 2014, there were approximately 19,313 Indian standards. According to Indian authorities, 5,238 of these standards are harmonized (i.e. aligned or identical) with corresponding international standards. Please provide an update on plans to harmonize the remaining 14,075 standards.
Reply: The harmonization process is a continuous process in BIS and constant efforts are made for harmonization depending upon feasibility. There are 5,862 Indian standards that have corresponding International Standards. Out of these standards, 5,238 Indian Standards have been harmonized (i.e. aligned or identical) with the International Standards.
Question 36: In regard to SPS-related measures, are the referenced "international standards" limited to the three WTO-recognized international standard setting bodies; the Codex Alimentarius, International Plant Protection Convention (IPPC), and World Organization for Animal Health (OIE)? Do "international standards" include standards developed by private international standard setting bodies such as the International Organization for Standardization (ISO)?
Reply: As per WTO SPS Agreement, three bodies namely Codex, OIE and IPPC are recognized as international standard setting bodies by India.
3.1.12.2 Technical Regulations
Page 59, paragraphs 3.90 and 3.92: The Secretariat’s Report notes that for standards and technical regulations, government entities post draft standards and technical regulations for public comment for 60 days, and that the draft documents may be published on government websites or in the Official Gazette. Draft technical regulations are also notified to WTO Members for comments. Related to these transparency procedures, please reply to the following questions:
Question 37: On February 5^th, 2014 India’s Ministry of Law and Justice issued a memorandum stating that it had, in consultation with other government entities, "formulated a policy on pre legislative consultation which should invariably be followed by every Ministry/Department of the Central Government before any legislative proposal is submitted to the Cabinet for tis consideration and approval". The policy goes on to explain that "the Department/Ministry concerned should publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such a manner as may be specified by the Department/Ministry concerned." Issuance through electronic media is also encouraged in the policy, as are public consultations. Has this policy been implemented across all Ministries and Departments and their subordinate entities to provide for pre-legislative consultation with stakeholders on draft policies? If it is not fully implemented, when is full implementation across all government entities expected, and what steps is the central government taking to ensure implementation?
Reply: The policy is for Law/Act, and not for the technical regulations to be adopted.
Question 38: Is there a centralized website hosted by the Government of India where all draft standards, technical regulations and other proposed rule changes are posted for public information and comment? If not, is India considering consolidating its public notice process, to make it easier for the public to find and comment on draft rules?
Reply: As of now, there are no such plans.
Question 39: India has made fewer than ten notifications to the WTO TBT Committee since January 2013. Can India confirm that it has notified all draft technical regulations to the WTO for Member review and comment? If some technical regulations have not been submitted, what technical regulations are they, and when will they be submitted?
Reply: Since few products have been brought under technical regulation, the notification to WTO TBT Committee has also been few. It is a continuous process and as and when TRs are adopted, it will be notified to WTO Secretariat.
3.1.12.3 Certification and Conformity Assessment

Page 60, paragraph 3.95
Question 40: The Secretariat’s Report highlights that "[c]onformity assessment procedures in India have largely remained unchanged since its previous Review; a major exception is the adoption of a new set of rules stipulating a compulsory registration scheme under the BIS for various electronic and information technology goods. "Given India's agreement to use common criteria in this area, please explain why India continues to require this registration scheme? Also, why did India expand the list of products covered in November 2014?
Reply: The Indian Standards covered under the registration scheme are either in to adoption of IEC Standards or in some cases the most of the requirements are derived from IEC Standards. As the compulsory registration order is notified by Department of Electronic and Information Technology, Govt. of India, the same has to be mandatorily followed and complied with as national law. However, the registration scheme is simple, less time consuming and less costly conformity assessment scheme being operated by BIS in India.
Question 41: We also understand that batteries are to be included in the expanded list of products. Are batteries that are part of a larger product included in this testing?
Reply: Sealed Secondary Cells/Batteries containing alkaline or other non-acid electrolytes for use in portable applications are covered under compulsory registration. These cells/batteries need to be separately registered even if used in other products. If battery is an integral part of host product and non-detachable would be tested as part of host product and separate registration for battery in such case is not required.
Page 61, paragraph 3.99
Question 42: The Secretariat’s Report clarifies that the Bureau of Indian Standards conducts conformity testing through its central laboratory in Sahibabad and in four regional and three branch laboratories. Does India recognize test results from accredited labs outside of India? If not, what steps is India implementing to recognize test results from internationally accredited labs, and when does India expect to be able to recognize such results?
Reply: BIS can recognize test results from accredited labs outside of India only in case of where BIS has entered into a Mutual Recognition Agreement with the concerned National Standards Body of the country in which the laboratory is located. Alternatively, the foreign laboratory needs to be recognized under the Laboratory Recognition Scheme of BIS.
3.1.12.5 Labelling
Page 62, paragraph 3.103: The Secretariat’s Report indicates that the Food Safety and Standards (Packaging and Labelling) Regulations 2011 regulate labelling requirements in India. These regulations stipulate that domestic manufacturers are obliged to display the license number and the FSSI logo on the label from 1 January 2015. The Secretariat’s Report states that these "Regulations are not notified to the WTO since they are not intended to be applied to India's trading partners."
Question 43: Please confirm whether it is indeed the sole responsibility of Indian importers to affix the required labels with respect to the license number and FSSAI logo on imported products sold in India.
Reply: It is between the exporting manufacturer and the importing Indian FBO if they agree to do the needful at the export end itself. The requirement of the regulation is that before the food product is cleared from the customs area, it should have this information in form of an original label or an additional sticker affixed by the importer.
Question 44: The United States previously requested that India provide assurances, as per the proviso given in Rule 24 of PCR (Legal Metrology Packaged Commodities Rules, 2011), that these rules shall not be applicable in the case of food products if similar Rules are available in the FSS Act. India confirmed this understanding to the United States twice in writing during 2014. Our trade continues to report that inspectors at certain ports continue to enforce the superseded definitions. We therefore respectfully inquire as to the status of a notification, or amendment of the Department of Commerce and Department of Legal Metrology regulations.
Reply: Rule 24 of the Legal Metrology (Packaged Commodities) Rules 2011 is clear in that it shall not be applicable if a similar declaration is to be made in any other law for the time being in force. The US may provide us specific cases and we would be happy to examine these.
Question 45: Furthermore, India's Legal Metrology Rules require foreign manufacturers to declare the maximum retail price (MRP) of foods on the label. We understand that there may be a proposal to amend these rules to permit the application of MRP stickers on imported foods. Please provide a status update on the Legal Metrology Rules and the anticipated timeline for their implementation.
Reply: The amendment to the Legal Metrology Rules on 14.5.2015 permit the affixation of labels on imported packages for making the declarations required under Rule 6.
India’s Ministry of Consumer Affairs has proposed establishing mandatory requirements for metric size packaging. Providing metric unit information serves a clear purpose.
Question 46: Please explain when India plans to notify the WTO and consult with trading partners on these proposed requirements.
Reply: India has a due process wherein we consult with all stakeholders before amending the Legal Metrology Rules.
3.1.13 Sanitary and Phytosanitary Requirements
Pages 62 and 63, paragraphs 3.106-3.109: The Secretariat’s Report discusses India’s SPS requirements. In this regard, please reply to the following:
Question 47: In efforts to increase transparency, are the opinions and reports regarding proposed SPS measures drafted by India's scientific panels and the scientific committee available to Members for review?
Reply: Existing legislation governing import of animal and animal products does not provide for publication of technical opinion/report of scientific panel and scientific committee for review.
Question 48: In addition to Codex, will India also aim to align India's SPS-related standards with the International Plant Protection Convention (IPPC) and World Organization for Animal Health (OIE)?
Reply: Yes, India has already decided to align its standard with OIE to the extent possible.
Question 49: How are India’s import protocols for animal products linked to the standards developed by the OIE (World Organization for Animal Health)?
Reply: India’s standards for import of animal products are based on OIE guidelines. India has decided to align its standards with OIE to that extent which may satisfy India’s ALOP.
Question 50: How does India make use of country animal health assessments from the OIE?
Reply: While permitting import of animal and animal products, India follows the disease notified to OIE by the respective countries.
Question 51: In regard to import restrictions on pork and pork products, and noting the recent WTO notification on the draft veterinary certificate and subsequent comments from the United States, will India’s finalized certificate conform to the relevant OIE and CODEX standards?
Reply: India will consider the comments of members countries including USA, wherever applicable.
Question 52: Of India's three national enquiry points, how is the enquiry point decided for SPS measures involving multiple commodity sectors?
Reply: For SPS measures the enquiry points involving multiple commodity sectors are decided as per the requirements laid down in the respective acts and are interlinked. For animal and animal product the relevant act is Livestock Importation Act., 1898.