(i) because of the absence, or low volume, of sales of like goods in the market of the country of export that would be relevant for the purpose of determining a price under subsection (1); or
(ii) because the situation in the market of the country of export is such that sales in that market are not suitable for use in determining a price under subsection (1);
the normal value of goods exported to Australia cannot be ascertained under subsection (1); or
(b) is satisfied, in a case where like goods are not sold in the ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter, that it is not practicable to obtain, within a reasonable time, information in relation to sales by other sellers of like goods that would be relevant for the purpose of determining a price under subsection (1);
the normal value of the goods for the purposes of this Part is:
(c) except where paragraph (d) applies, the sum of:
(i) such amount as the Minister determines to be the cost of production or manufacture of the goods in the country of export; and
(ii) on the assumption that the goods, instead of being exported, had been sold for home consumption in the ordinary course of trade in the country of export—such amounts as the Minister determines would be the administrative, selling and general costs associated with the sale and the profit on that sale; or
(d) if the Minister directs that this paragraph applies—the price determined by the Minister to be the price paid or payable for like goods sold in the ordinary course of trade in arms length transactions for exportation from the country of export to a third country determined by the Minister to be an appropriate third country, other than any amount determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of any such transactions.
(3) The price determined under paragraph (2)(d) is a price that the Minister determines, having regard to the quantity of like goods sold as described in paragraph (2)(d) at that price, is representative of the price paid in such sales.
(3A) The Minister is not required to consider working out the normal value of goods under paragraph (2)(d) before working out the normal value of goods under paragraph (2)(c).
(4) Subject to subsections (6) and (8), where the Minister is satisfied that it is inappropriate to ascertain the normal value of goods in accordance with the preceding subsections because the Government of the country of export:
(a) has a monopoly, or substantial monopoly, of the trade of the country; and
(b) determines or substantially influences the domestic price of goods in that country;
the normal value of the goods for the purposes of this Part is to be a value ascertained in accordance with whichever of the following paragraphs the Minister determines having regard to what is appropriate and reasonable in the circumstances of the case:
(c) a value equal to the price of like goods produced or manufactured in a country determined by the Minister and sold for home consumption in the ordinary course of trade in that country, being sales that are arms length transactions;
(d) a value equal to the price determined by the Minister to be the price of like goods produced or manufactured in a country determined by the Minister and sold in the ordinary course of trade in arms length transactions for exportation from that country to a third country determined by the Minister to be an appropriate third country;
(e) a value equal to the sum of the following amounts ascertained in respect of like goods produced or manufactured in a country determined by the Minister and sold for home consumption in the ordinary course of trade in that country:
(i) such amount as the Minister determines to be the cost of production or manufacture of the like goods in that country;
(ii) such amounts as the Minister determines to be the administrative, selling and general costs associated with the sale of like goods in that country and the profit on that sale;
(f) a value equal to the price payable for like goods produced or manufactured in Australia and sold for home consumption in the ordinary course of trade in Australia, being sales that are arms length transactions.
(5) The price determined under paragraph (4)(d) is a price that the Minister determines, because of the quantity of like goods sold as described in paragraph (4)(d) at that price, is representative of the price paid in such sales.
(5A) Amounts determined:
(a) to be the cost of production or manufacture of goods under subparagraph (2)(c)(i) or (4)(e)(i); and
(b) to be the administrative, selling and general costs in relation to goods under subparagraph (2)(c)(ii) or (4)(e)(ii);
must be worked out in such manner, and taking account of such factors, as the regulations provide for the respective purposes of paragraphs 269TAAD(4)(a) and (b).
(5B) The amount determined to be the profit on the sale of goods under subparagraph (2)(c)(ii) or (4)(e)(ii), must be worked out in such manner, and taking account of such factors, as the regulations provide for that purpose.
(5C) Without limiting the generality of the matters that may be taken into account by the Minister in determining whether a third country is an appropriate third country for the purposes of paragraph (2)(d) or (4)(d), the Minister may have regard to the following matters:
(a) whether the volume of trade from the country of export referred to in paragraph (2)(d) or the country first‑mentioned in paragraph (4)(d) is similar to the volume of trade from the country of export to Australia; and
(b) whether the nature of the trade in goods concerned between the country of export referred to in paragraph (2)(d) or the country first‑mentioned in paragraph (4)(d) is similar to the nature of trade between the country of export and Australia.
(5D) The normal value of goods (the exported goods) is the amount determined by the Minister, having regard to all relevant information, if the exported goods are exported to Australia and the Minister is satisfied that the country of export has an economy in transition and that at least one of the following paragraphs applies:
(a) both of the following conditions exist:
(i) the exporter of the exported goods sells like goods in the country of export;
(ii) market conditions do not prevail in that country in respect of the domestic selling price of those like goods;
(b) both of the following conditions exist:
(i) the exporter of the exported goods does not sell like goods in the country of export but others do;
(ii) market conditions do not prevail in that country in respect of the domestic selling price of those like goods;
(c) the exporter of the exported goods does not answer questions in a questionnaire given to the exporter by the Commissioner under subsection 269TC(8) within the period described in that subsection or subsection 269TC(9) for answering questions;
(d) the answers given within the period mentioned in subsection 269TC(8), or the further period mentioned in subsection 269TC(9), by the exporter of the exported goods to a questionnaire given to the exporter under subsection 269TC(8) do not provide a reasonable basis for determining that paragraphs (a) and (b) of this subsection do not apply.
Note: Subsection 269TC(8) deals with the Commissioner giving an exporter of goods to Australia a questionnaire about evidence of whether or not paragraphs (a) and (b) of this subsection apply, with a specified period of at least 30 days for the exporter to answer the questions. Under subsection 269TC(9) the Commissioner may allow the exporter a further period for answering the questions.
(5E) To be satisfied that the conditions in paragraph (5D)(a) or (b) exist, the Minister must have regard to the matters (if any) prescribed by the regulations.
(5F) Without limiting the generality of subsection (5D), for the purpose of working out, under that subsection, the amount that is to be the normal value of goods exported to Australia, the Minister may determine that amount in a manner that would be open to the Minister under paragraph (4)(c), (d), (e) or (f) if subsection (4) were applicable.
(5J) For the purposes of fulfilling Australia’s international obligations under an international agreement, regulations may be made to disapply subsection (5D) to a country.
(6) Where the Minister is satisfied that sufficient information has not been furnished or is not available to enable the normal value of goods to be ascertained under the preceding subsections (other than subsection (5D)), the normal value of those goods is such amount as is determined by the Minister having regard to all relevant information.
(7) For the purposes of this section, the Minister may disregard any information that he or she considers to be unreliable.
(7A) The application of subsection (5D) to goods that are exported to Australia from a particular country does not preclude the application of other provisions of this section (other than subsections (4) and (5)) to other goods that are exported to Australia from that country.
(8) Where the normal value of goods exported to Australia is the price paid or payable for like goods and that price and the export price of the goods exported:
(a) relate to sales occurring at different times; or
(b) are not in respect of identical goods; or
(c) are modified in different ways by taxes or the terms or circumstances of the sales to which they relate;
that price paid or payable for like goods is to be taken to be such a price adjusted in accordance with directions by the Minister so that those differences would not affect its comparison with that export price.
(9) Where the normal value of goods exported to Australia is to be ascertained in accordance with paragraph (2)(c) or (4)(e), the Minister must make such adjustments, in determining the costs to be determined under that paragraph, as are necessary to ensure that the normal value so ascertained is properly comparable with the export price of those goods.
(10) Where:
(a) the actual country of export of goods exported to Australia is not the country of origin of the goods; and
(b) the Minister is of the opinion that the normal value of the goods should be ascertained for the purposes of this Part as if the country of origin were the country of export;
he or she may direct that the normal value of the goods is to be so ascertained.
(11) For the purposes of subsection (10), the country of origin of goods is:
(a) in the case of unmanufactured raw products—the country of which they are products; or
(b) in any other case—the country in which the last significant process in the manufacture or production of the goods was performed.
(14) If:
(a) application is made for a dumping duty notice; and
(b) goods the subject of the application are exported to Australia; but
(c) the volume of sales of like goods for home consumption in the country of export by the exporter or another seller of like goods is less than 5% of the volume of goods the subject of the application that are exported to Australia by the exporter;
the volume of sales referred to in paragraph (c) is taken, for the purposes of paragraph (2)(a), to be a low volume unless the Minister is satisfied that it is still large enough to permit a proper comparison for the purposes of assessing a dumping margin under section 269TACB.
269TACAA Sampling
(1) If:
(a) one of the following applies:
(i) there is an investigation under this Part in relation to whether a dumping duty notice or countervailing duty notice should be published;
(ii) there is a review under Division 5 in relation to the publication of a dumping duty notice or countervailing duty notice;
(iii) there is an inquiry under Division 6A in relation to the continuation of a dumping duty notice or countervailing duty notice; and
(b) the number of exporters from a particular country of export in relation to the investigation, review or inquiry is so large that it is not practicable to examine the exports of all of those exporters;
then the investigation, review or inquiry may be carried out, and findings may be made, on the basis of information obtained from an examination of a selected number of those exporters:
(c) who constitute a statistically valid sample of those exporters; or
(d) who are responsible for the largest volume of exports to Australia that can reasonably be examined.
(2) If information is submitted by an exporter not initially selected under subsection (1) for the purposes of an investigation, review or inquiry, the investigation, review or inquiry must extend to that exporter unless to so extend it would prevent its timely completion.
269TACAB Dumping duty notice—export prices and normal values for different categories of exporters
Uncooperative exporters
(1) If one of the following applies:
(a) there is an investigation under this Part in relation to whether a dumping duty notice should be published;
(b) there is a review under Division 5 in relation to the publication of a dumping duty notice;
(c) there is an inquiry under Division 6A in relation to the continuation of a dumping duty notice;
then:
(d) if the export price of goods for an uncooperative exporter is to be worked out in relation to the investigation, review or inquiry—that export price is to be worked out under subsection 269TAB(3); and
(e) if the normal value of goods for an uncooperative exporter is to be worked out in relation to the investigation, review or inquiry—that normal value is to be worked out under subsection 269TAC(6).
Residual exporters
(2) If:
(a) one of the following applies:
(i) there is an investigation under this Part in relation to whether a dumping duty notice should be published;
(ii) there is a review under Division 5 in relation to the publication of a dumping duty notice;
(iii) there is an inquiry under Division 6A in relation to the continuation of a dumping duty notice; and
(b) the investigation, review or inquiry is carried out on the basis of information obtained from an examination of a selected number of exporters as mentioned in subsection 269TACAA(1);
then:
(c) if the export price of goods for a residual exporter is to be worked out in relation to the investigation, review or inquiry—that export price must not be less than the weighted average of export prices for like goods of cooperative exporters from the same country of export; and
(d) if the normal value of goods for a residual exporter is to be worked out in relation to the investigation, review or inquiry—that normal value must not exceed the weighted average of normal values for like goods of cooperative exporters from the same country of export.
(3) To the extent that subsection (2) applies in relation to an investigation, the weighted average of export prices, and the weighted average of normal values, of the cooperative exporters must not include any export price or normal value if, in a comparison under section 269TACB involving that export price or normal value, the Minister has determined:
(a) that there is no dumping; or
(b) that the dumping margin, 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%.
269TACA Non‑injurious price
The non‑injurious price of goods exported to Australia is the minimum price necessary:
(a) if the goods are the subject of, or of an application for, a dumping duty notice under subsection 269TG(1) or (2)—to prevent the injury, or a recurrence of the injury, or to remove the hindrance, referred to in paragraph 269TG(1)(b) or (2)(b); or
(b) if the goods are the subject of, or of an application for, a third country dumping duty notice under subsection 269TH(1) or (2)—to prevent the injury, or a recurrence of the injury, referred to in paragraph 269TH(1)(b) or (2)(b); or
(c) if the goods are the subject of, or of an application for, a countervailing duty notice under subsection 269TJ(1) or (2)—to prevent the injury, or a recurrence of the injury, or to remove the hindrance, referred to in paragraph 269TJ(1)(b) or (2)(b); or
(d) if the goods are the subject of, or of an application for, a third country countervailing duty notice under subsection 269TK(1) or (2)—to prevent the injury, or a recurrence of the injury, referred to in paragraph 269TK(1)(b) or (2)(b).
269TACB Working out whether dumping has occurred and levels of dumping
(1) If:
(a) application is made for a dumping duty notice; and
(b) export prices in respect of goods the subject of the application exported to Australia during the investigation period have been established in accordance with section 269TAB; and
(c) corresponding normal values in respect of like goods during that period have been established in accordance with section 269TAC;
the Minister must determine, by comparison of those export prices with those normal values, whether dumping has occurred.
(2) In order to compare those export prices with those normal values, the Minister may, subject to subsection (3):
(a) compare the weighted average of export prices over the whole of the investigation period with the weighted average of corresponding normal values over the whole of that period; or
(aa) use the method of comparison referred to in paragraph (a) in respect of parts of the investigation period as if each of these parts were the whole of the investigation period; or
(b) compare the export prices determined in respect of individual transactions over the whole of the investigation period with the corresponding normal values determined over the whole of that period; or