Customs Amendment (Anti-dumping Improvements) Act (No. 3) 2012 (196 of 2012)
Schedule 2 Circumvention activity
Customs Act 1901
6 After Division 5 of Part XVB
Insert:
Division 5A - Anti-circumvention inquiries
269ZDBA What this Division is about
If a notice has been published under subsection 269TG(2) or 269TJ(2) in respect of goods, this Division allows a person representing, or representing a portion of, the Australian industry producing like goods to apply for the conduct of an anti-circumvention inquiry in relation to the notice. This Division also allows the Minister to request such an inquiry. It:
• sets out when applications may be made; and
• sets out the procedure to be followed by the CEO in dealing with applications or requests and preparing reports for the Minister; and
• empowers the Minister, after consideration of such reports, to leave the notice unaltered or to alter the notice as appropriate.
269ZDBB Circumvention activities
(1) This section sets out when circumvention activity, in relation to a notice published under subsection 269TG(2) or 269TJ(2), occurs.
Assembly of parts in Australia
(2) Circumvention activity , in relation to the notice, occurs if the following apply:
(a) goods in the form of individual parts (the circumvention goods ) are exported to Australia;
(b) those parts are manufactured in a foreign country in respect of which the notice applies;
(c) those parts are assembled in Australia, whether or not with other parts, to create goods (the assembled goods ) that would be the subject of the notice if they were exported to Australia by an exporter in respect of which the notice applies;
(d) the total value of the parts manufactured in that foreign country is a significant proportion of the value of the assembled goods;
(e) section 8 or 10 of the Dumping Duty Act, as the case requires, does not apply to the export of the circumvention goods to Australia.
Assembly of parts in third country
(3) Circumvention activity , in relation to the notice, occurs if the following apply:
(a) goods in the form of individual parts are manufactured in a foreign country (the original country ) in respect of which the notice applies;
(b) those parts are assembled in a foreign country in respect of which the notice does not apply, whether or not with other parts, to create goods (the circumvention goods ) that would be the subject of the notice if they were exported to Australia by an exporter in respect of which the notice applies;
(c) the circumvention goods are exported to Australia;
(d) the total value of the parts manufactured in the original country is a significant proportion of the customs value (within the meaning of section 159) of the circumvention goods;
(e) section 8 or 10 of the Dumping Duty Act, as the case requires, does not apply to the export of the circumvention goods to Australia.
Export of goods through one or more third countries
(4) Circumvention activity , in relation to the notice, occurs if the following apply:
(a) goods (the circumvention goods ) are exported to Australia from a foreign country in respect of which the notice does not apply;
(b) before that export, there were one or more other exports of the goods from a foreign country to another foreign country;
(c) the first of those other exports was from a foreign country in respect of which the notice applies;
(d) the circumvention goods would be the subject of the notice if they were exported to Australia by an exporter in respect of which the notice applies;
(e) section 8 or 10 of the Dumping Duty Act, as the case requires, does not apply to the export of the circumvention goods to Australia.
Arrangements between exporters
(5) Circumvention activity , in relation to the notice, occurs if the following apply:
(a) goods (the circumvention goods ) are exported to Australia from a foreign country in respect of which the notice applies;
(b) the exporter exported the circumvention goods under an arrangement with another exporter from that foreign country;
(c) the other exporter is an exporter in respect of which the notice applies;
(d) the circumvention goods would be the subject of the notice if they were exported to Australia by the other exporter;
(e) either:
(i) section 8 or 10 of the Dumping Duty Act, as the case requires, does not apply to the export of the circumvention goods to Australia; or
(ii) section 8 or 10 of the Dumping Duty Act, as the case requires, applies to the export of the circumvention goods to Australia, but the interim duty payable in relation to that export is less than the interim duty that would have been payable if the other exporter had exported the goods to Australia.
Regulations
(6) Circumvention activity , in relation to the notice, occurs in the circumstances prescribed by the regulations for the purposes of this subsection.
269ZDBC Applications and requests for conduct of an anti-circumvention inquiry
Applications by Australian industry
(1) If:
(a) a notice (an original notice ) has been published under subsection 269TG(2) or 269TJ(2) in respect of goods; and
(b) a person representing, or representing a portion of, the Australian industry producing like goods considers that one or more circumvention activities in relation to the notice have occurred; and
(c) the person considers that it may be appropriate to alter the notice because of the circumvention activities;
the person may, by application lodged with the CEO, request that the CEO conduct an anti-circumvention inquiry in relation to the notice.
Requests by Minister
(2) If:
(a) a notice (an original notice ) has been published under subsection 269TG(2) or 269TJ(2) in respect of goods; and
(b) the Minister considers that one or more circumvention activities in relation to the notice have occurred; and
(c) the Minister considers that it may be appropriate to alter the notice because of the circumvention activities;
the Minister may, by notice in writing, request that the CEO conduct an anti-circumvention inquiry in relation to the original notice.
269ZDBD Content and lodgement of applications for conduct of an anti-circumvention inquiry
Content of application
(1) An application under subsection 269ZDBC(1) for the conduct of an anti-circumvention inquiry in relation to an original notice must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated by the form.
Note: For original notice , see section 269ZDBC.
(2) Without limiting subsection (1), the application must include:
(a) a description of the kind of goods that are the subject of the original notice; and
(b) a description of the original notice the subject of the application; and
(c) a description of the circumvention activities in relation to the original notice that the applicant considers have occurred; and
(d) a description of the alterations to the original notice that the applicant considers should be made.
Lodgement of application
(3) An application may be lodged with Customs:
(a) by leaving it at a place allocated for lodgement of such applications at Customs House in Canberra; or
(b) by posting it by prepaid post to a postal address specified in the approved form; or
(c) by sending it by fax to a fax number specified in the approved form.
(4) The application is taken to have been lodged when the application, or a fax of the application, is first received by an officer of Customs doing duty in relation to applications for the conduct of anti-circumvention inquiries.
(5) The day on which the application is taken to have been lodged must be recorded on the application.
269ZDBE Consideration of applications and requests for conduct of an anti-circumvention inquiry
Applications
(1) If an application under subsection 269ZDBC(1) for the conduct of an anti-circumvention inquiry in relation to an original notice is lodged with Customs, the CEO must, within 20 days after Customs receives the application:
(a) examine the application; and
(b) if the CEO is not satisfied, having regard to the application and any other information that the CEO considers relevant, of either or both of the matters referred to in subsection (2) - reject the application and inform the applicant, by notice in writing, accordingly.
Note: For original notice , see section 269ZDBC.
(2) For the purposes of subsection (1), the matters to be considered in relation to an application are:
(a) that the application complies with section 269ZDBD; and
(b) that there appear to be reasonable grounds for asserting that one or more circumvention activities in relation to the original notice have occurred.
(3) The notice informing the applicant of the rejection of the application must set out the reasons why the CEO was not satisfied of either or both of the matters referred to in subsection (2).
(4) If the CEO does not reject an application for the conduct of an anti-circumvention inquiry in relation to the original notice, the CEO must publish a notice in a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory indicating that such an inquiry is to be conducted.
Requests
(5) If, under subsection 269ZDBC(2), the Minister requests the CEO to conduct an anti-circumvention inquiry in relation to an original notice, the CEO must, on receipt of that request, publish a notice in a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory indicating that such an inquiry is to be conducted.
Note: For original notice , see section 269ZDBC.
Content of notice
(6) A notice (the inquiry notice ) published by the CEO under subsection (4) or (5) must:
(a) describe the kind of goods to which the inquiry relates; and
(b) describe the original notice the subject of the inquiry; and
(c) state that the inquiry will examine whether circumvention activities in relation to the original notice have occurred; and
(d) indicate that a report will be made to the Minister:
(i) within 155 days after the day of publication of the inquiry notice; or
(ii) within such longer period as the Minister allows under section 269ZHI; and
(e) invite interested parties to lodge with the CEO, within a specified period of not more than 40 days after the day of publication of the inquiry notice, submissions concerning the inquiry; and
(f) state that:
(i) within 110 days after the publication of the inquiry notice; or
(ii) within such longer period as the Minister allows under section 269ZHI;
the CEO will place on the public record a statement of the essential facts on which the CEO proposes to base a recommendation to the Minister in relation to the original notice; and
(g) invite interested parties to lodge with the CEO, within 20 days of that statement being placed on the public record, submissions in response to that statement; and
(h) indicate the address at which, or the manner in which, submissions under paragraph (e) or (g) may be lodged.
269ZDBF Statement of essential facts in relation to conduct of an anti-circumvention inquiry
(1) If the CEO publishes a notice under subsection 269ZDBE(4) or (5) about the conduct of an anti-circumvention inquiry in relation to an original notice, the CEO must:
(a) within 110 days after the publication of the notice under subsection 269ZDBE(4) or (5); or
(b) within such longer period as the Minister allows under section 269ZHI;
place on the public record a statement of the facts (the statement of essential facts ) on which the CEO proposes to base a recommendation to the Minister in relation to the original notice.
Note: For original notice , see section 269ZDBC.
(2) In formulating the statement of essential facts, the CEO:
(a) must have regard to:
(i) the application or request; and
(ii) any submissions concerning the inquiry that are received by Customs within 40 days after the publication of the notice under subsection 269ZDBE(4) or (5); and
(b) may have regard to any other matters that the CEO considers relevant.
Late submissions
(3) The CEO is not obliged to have regard to a submission concerning the inquiry that is received by Customs after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the CEO’s opinion, prevent the timely placement of the statement of essential facts on the public record.
269ZDBG Report on anti-circumvention inquiry
CEO recommendations
(1) The CEO must, after conducting an anti-circumvention inquiry in relation to an original notice and within 155 days after the day of publication of the notice under subsection 269ZDBE(4) or (5) about the inquiry or such longer period as the Minister allows under section 269ZHI, give the Minister a report recommending:
(a) the original notice remain unaltered; or
(b) the following:
(i) the original notice be altered because the CEO is satisfied that circumvention activities in relation to the original notice have occurred;
(ii) the alterations to be made to the original notice.
Note: For original notice , see section 269ZDBC.
(2) In deciding on the recommendations to be made to the Minister in the report, the CEO:
(a) must have regard to:
(i) the application or request for the inquiry; and
(ii) any submission concerning the inquiry to which the CEO has had regard for the purpose of formulating the statement of essential facts in relation to the inquiry; and
(iii) that statement of essential facts; and
(iv) any submission made in response to that statement that is received by Customs within 20 days after the placing of that statement on the public record; and
(b) may have regard to any other matter that the CEO considers to be relevant to the inquiry.
Late submissions
(3) The CEO is not obliged to have regard to a submission made in response to the statement of essential facts that is received by Customs after the end of the period referred to in subparagraph (2)(a)(iv) if to do so would, in the CEO’s opinion, prevent the timely preparation of the report to the Minister.
Reasons for CEO recommendations
(4) The report to the Minister must include a statement of the CEO’s reasons for any recommendation contained in the report that:
(a) sets out the material findings of fact on which that recommendation is based; and
(b) provides particulars of the evidence relied on to support those findings.
269ZDBH Minister’s powers in relation to anti-circumvention inquiry
Minister’s decision
(1) After considering the report of the CEO and any other information that the Minister considers relevant, the Minister must declare, by notice published in accordance with subsection (9), that for the purposes of this Act and the Dumping Duty Act:
(a) the original notice is to remain unaltered; or
(b) the alterations specified in the declaration are taken to have been made to the original notice, with effect on and after a day specified in the declaration.
Note: For original notice , see section 269ZDBC.
(2) Without limiting subsection (1), the alterations may be of the following kind:
(a) the specification of different goods that are to be the subject of the original notice;
(b) the specification of different foreign countries that are to be the subject of the original notice;
(c) the specification of different exporters that are to be the subject of the original notice;
(d) in relation to existing exporters that are the subject of the original notice - the specification of different variable factors in respect of one or more of those exporters;
(e) in relation to exporters that are to be the subject of the original notice - the specification of variable factors in respect of those exporters.
Timing of decision
(3) The Minister must make a declaration under subsection (1) within:
(a) 30 days after receiving the report; or
(b) if the Minister considers there are special circumstances that prevent the declaration being made within that period - such longer period as the Minister considers appropriate.
(4) If paragraph (3)(b) applies, the Minister must give public notice of the longer period.
Declaration has effect according to its terms
(5) If the Minister makes a declaration under subsection (1), that declaration has effect according to its terms.
Notification of declaration
(6) The Minister must, as soon as practicable after the making of a declaration under subsection (1) that affects an exporter, inform that exporter of the terms of the declaration.
Declaration may cover more than one exporter
(7) Nothing in this section is taken to imply that the Minister cannot simultaneously make the same declaration in relation to more than one exporter.
When declaration takes effect
(8) A day specified in a declaration as mentioned in paragraph (1)(b) must not be earlier than the day of publication of the notice under subsection269ZDBE(4) or (5) about the conduct of an anti-circumvention inquiry in relation to the original notice.
Manner of publication
(9) A notice under subsection (1) must be published in:
(a) the Gazette; and
(b) a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory.