Customs Act 1901

PART XVB - SPECIAL PROVISIONS RELATING TO ANTI-DUMPING DUTIES  

Division 2 - Consideration of anti-dumping matters by the Commissioner  

SECTION 269TDA   TERMINATION OF INVESTIGATIONS  

269TDA(1)   Commissioner must terminate if all dumping margins are negligible.  

If:


(a) application is made for a dumping duty notice; and


(b) in an investigation, for the purposes of the application, of an exporter to Australia of goods the subject of the application, the Commissioner is satisfied that:


(i) there has been no dumping by the exporter of any of those goods; or

(ii) there has been dumping by the exporter of some or all of those goods, but the dumping margin for the exporter, or each such dumping margin, worked out under section 269TACB , when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%;

the Commissioner must terminate the investigation so far as it relates to the exporter.

269TDA(2)   Commissioner must terminate if countervailable subsidisation is negligible.  

If:


(a) application is made for a countervailing duty notice; and


(b) in an investigation, for the purposes of the application, of an exporter to Australia of goods the subject of the application, the Commissioner is satisfied that:


(i) no countervailable subsidy has been received in respect of any of those goods; or

(ii) a countervailable subsidy has been received in respect of some or all of those goods but it never, at any time during the investigation period, exceeded the negligible level of countervailable subsidy under subsection (16);

the Commissioner must terminate the investigation so far as it relates to the exporter.

269TDA(3)   Commissioner must terminate if negligible volumes of dumping are found.  

If:


(a) application is made for a dumping duty notice; and


(b) in an investigation for the purposes of the application the Commissioner is satisfied that the total volume of goods the subject of the application:


(i) that have been, or may be, exported to Australia over a reasonable examination period from a particular country of export; and

(ii) that have been, or may be, dumped;
is negligible;

the Commissioner must terminate the investigation so far as it relates to that country.

269TDA(4)   What is a negligible volume of dumped goods?  

For the purpose of subsection (3), the total volume of goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and dumped is taken to be a negligible volume if:


(a) when expressed as a percentage of the total Australian import volume, it is less than 3%; and


(b) subsection (5) does not apply in relation to those first-mentioned goods.

269TDA(5)   Aggregation of volumes of dumped goods.  

For the purposes of subsection (4), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and dumped if:


(a) the volume of such goods that have been, or may be, so exported from that country and dumped, when expressed as a percentage of the total Australian import volume, is less than 3%; and


(b) the volume of goods the subject of the application that have been, or may be, exported to Australia over that period from another country of export and dumped, when expressed as a percentage of the total Australian import volume, is also less than 3%; and


(c) the total volume of goods the subject of the application that have been, or may be, exported to Australia over that period from the country to which paragraph (a) applies, and from all countries to which paragraph (b) applies, and dumped, when expressed as a percentage of the total Australian import volume, is more than 7%.

269TDA(6)   Negligible dumping margins to count in determining volume.  

The fact that the dumping margin, or each of the dumping margins, in relation to a particular exporter, when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%, does not prevent exports by that exporter being taken into account:


(a) in working out the total volume of goods that have been, or may be, exported from a country of export and dumped; and


(b) in aggregating, for the purposes of subsection (5), the volumes of goods that have been, or may be, exported from that country of export and other countries of export and dumped.

269TDA(7)   Commissioner must terminate if negligible volumes of countervailable subsidisation are found.  

If:


(a) application is made for a countervailing duty notice; and


(b) in an investigation for the purposes of the application, the Commissioner is satisfied that the total volume of goods the subject of the application:


(i) that have been, or may be, exported to Australia from a particular country of export during a reasonable examination period; and

(ii) in respect of which a countervailable subsidy has been, or may be, received;
is negligible;

the Commissioner must terminate the investigation so far as it relates to that country.

269TDA(8)   What is a negligible volume of subsidised goods?  

For the purposes of subsection (7), the total volume of goods the subject of the application for a countervailing duty notice that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been received is taken to be a negligible volume if:


(a) that country of export is not a developing country and that total volume, when expressed as a percentage of the total Australian import volume, is less than 3%; or


(b) that country of export is a developing country and that total volume, when expressed as a percentage of the total Australian import volume, is less than 4%;

and subsections (9), (10) and (11) do not apply in relation to those first-mentioned goods.

269TDA(9)   Aggregation of volumes of subsidised goods from countries other than developing countries.  

For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received, if:


(a) the country of export is not a developing country; and


(b) the volume of such goods:


(i) that have been, or may be, exported to Australia over that period from that country; and

(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 3%; and


(c) the volume of goods the subject of the application:


(i) that have been, or may be, exported to Australia over that period from another country that is not a developing country; and

(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is also less than 3%; and


(d) the total volume of goods the subject of the application:


(i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and

(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is more than 7%.

269TDA(10)   Aggregation of volumes of subsidised goods from developing countries.  

For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received if:


(a) the country of export is a developing country; and


(b) the volume of such goods:


(i) that have been, or may be, exported to Australia over that period from that country; and

(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 4%; and


(c) the volume of goods the subject of the application:


(i) that have been, or may be, exported to Australia over that period from another country that is a developing country; and

(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is also less than 4%; and


(d) the total volume of goods the subject of the application:


(i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and

(ii) in respect of which a countervailable subsidy has been, or may be received;
when expressed as a percentage of the total Australian import volume, is more than 9%.

269TDA(11)   Aggregation of volumes of subsidised goods from member countries that are developing countries.  

For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received if:


(a) the country of export is a member country and a developing country; and


(b) the volume of such goods;


(i) that have been, or may be exported to Australia over that period from that country; and

(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 4%; and


(c) the volume of goods the subject of the application:


(i) that have been, or may be, exported to Australia over that period from another member country that is a developing country; and

(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 4%; and


(d) the volume of goods the subject of the application:


(i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and

(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is more than 9%.

269TDA(12)   Negligible countervailable subsidies to count in determining volume.  

The fact that the level of countervailable subsidy that has been, or may be, received in respect of goods that have been, exported, or may be exported, to Australia from a country of export is a negligible level under subsection (16) does not prevent exports from that country being taken into account:


(a) in working out the total volume of goods that have been, or may be, exported from a country of export and in respect of which a countervailable subsidy has been, or may be, payable; and


(b) in aggregating, for the purposes of subsection (9), (10) or (11), volumes of goods that have been, or may be, exported to Australia from that country and other countries and in respect of which a countervailing subsidy has been, or may be, received.

269TDA(13)   Commissioner must terminate dumping investigation if export causes negligible injury etc.  

Subject to subsection (13A), if:


(a) application is made for a dumping duty notice; and


(b) in an investigation, for the purposes of the application, of goods the subject of the application that have been, or may be, exported to Australia from a particular country of export, the Commissioner is satisfied that the injury, if any, to an Australian industry or an industry in a third country, or the hindrance, if any, to the establishment of an Australian industry, that has been, or may be, caused by that export is negligible;

the Commissioner must terminate the investigation so far as it relates to that country.

269TDA(13A)  


If, in relation to the investigation referred to in subsection (13), the Commissioner, in accordance with subsection (14B), considers the cumulative effect of exportations of goods to Australia from 2 or more countries of export, then the following apply in relation to those countries:


(a) if the Commissioner is not satisfied that the injury to an Australian industry or an industry in a third country, or the hindrance to the establishment of an Australian industry, that has been, or may be, caused by those exports is negligible - subsection (13) does not apply in relation to those countries;


(b) if the Commissioner is satisfied that such injury or hindrance that has been, or may be, caused by those exports is negligible - the Commissioner must terminate the investigation so far as it relates to those countries.

Note:

If the investigation also covers exports of goods from a country that was not part of the cumulation consideration because those exports did not satisfy the criteria in subsection (14B), then the Commissioner will consider whether subsection (13) applies to that country.

269TDA(14)   Commissioner must terminate countervailable subsidy investigation if export causes negligible injury.  

Subject to subsection (14A), if:


(a) application is made for a countervailing duty notice; and


(b) in an investigation, for the purpose of the application, of goods the subject of the application that have been, or may be, exported to Australia from a particular country of export, the Commissioner is satisfied that the injury, if any, to an Australian industry or an industry in a third country that has been, or may be, caused by that export is negligible;

the Commissioner must terminate the investigation so far as it relates to that country.

269TDA(14A)  


If, in relation to the investigation referred to in subsection (14), the Commissioner, in accordance with subsection (14B), considers the cumulative effect of exportations of goods to Australia from 2 or more countries of export, then the following apply in relation to those countries:


(a) if the Commissioner is not satisfied that the injury to an Australian industry or an industry in a third country that has been, or may be, caused by those exports is negligible - subsection (14) does not apply in relation to those countries;


(b) if the Commissioner is satisfied that such injury that has been, or may be, caused by those exports is negligible - the Commissioner must terminate the investigation so far as it relates to those countries.

Note:

If the investigation also covers exports of goods from a country that was not part of the cumulation consideration because those exports did not satisfy the criteria in subsection (14B), then the Commissioner will consider whether subsection (14) applies to that country.

Cumulative assessment of injury or hindrance

269TDA(14B)  


For the purpose of subsection (13A) or (14A), the Commissioner must consider the cumulative effect of exportations of goods to Australia from 2 or more countries of export if the Commissioner is satisfied that:


(a) each of those exportations is the subject of an investigation; and


(b) either:


(i) all the investigations of those exportations resulted from applications under section 269TB lodged with the Commissioner on the same day; or

(ii) the investigations of those exportations resulted from applications under section 269TB lodged with the Commissioner on different days but the investigation periods for all the investigations of those exportations overlap significantly; and


(c) for the purposes of subsection (13A) - the dumping margin worked out under section 269TACB for the exporter for each of the exportations is at least 2% of the export price or weighted average of export prices used to establish that dumping margin; and


(d) for the purposes of subsection (13A) - for each application, the volume of goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period (as defined in subsection 269TDA(17) ) from the country of export and dumped is not taken to be negligible for the purposes of subsection 269TDA(3) because of subsection 269TDA(4) ; and


(e) for the purposes of subsection (14A):


(i) the amount of the countervailable subsidy in respect of the goods the subject of each of the exportations exceeds the negligible level of countervailable subsidy worked out under subsection 269TDA(16) ; and

(ii) the volume of each of those exportations is not negligible; and


(f) it is appropriate to consider the cumulative effect of those exportations, having regard to:


(i) the conditions of competition between those goods; and

(ii) the conditions of competition between those goods and like goods that are domestically produced.

269TDA(15)   Commissioner must give public notice of termination decisions.  

If the Commissioner decides to terminate an investigation so far as it relates to a particular exporter or country of export, the Commissioner must:


(a) give public notice of that decision; and


(b) ensure that:


(i) in the case of an exporter, a copy of the notice is sent to the applicant, the exporter and the government of the country of export; or

(ii) in the case of a country of export, a copy of the notice is sent to the applicant and the government of that country; and


(c) inform the applicant of the applicant ' s right, within 30 days after the first publication of the public notice, to apply for a review of the Commissioner ' s decision by the Review Panel under Division 9.

269TDA(16)   Negligible countervailable subsidisation.  

For the purposes of this section, a countervailable subsidy received in respect of goods exported to Australia is negligible if:


(a) the country of export is not a developing country and the subsidy, when expressed as a percentage of the export price of the goods, is less than 1%; or


(b) the country of export is a developing country but not a special developing country and the subsidy, when expressed as a percentage of the export price of the goods, is not more than 2%; or


(c) the country of export is a special developing country and the subsidy, when expressed as a percentage of the export price of the goods, is not more than 3%.

269TDA(17)   Definition - reasonable examination period.  

In this section:

"reasonable examination period"
, in relation to an application for a dumping duty notice or a countervailing duty notice in respect of goods, means a period comprising:


(a) the whole or a substantial part of the investigation period; or


(b) any period after the end of the investigation period that is taken into account for the purpose of considering possible future importations of goods the subject of the application;

"total Australian import volume"
, in relation to a volume of goods the subject of an application for a dumping duty notice or a countervailing duty notice that have been, or may be, exported to Australia from a particular country during a period, means the total volume of all goods the subject of the application and like goods that have been, or may be, exported to Australia from all countries during that period.


 

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