(i) the method of comparison referred to in paragraph (a) in respect of a part or parts of the investigation period as if the part or each of these parts were the whole of the investigation period; and
(ii) the method of comparison referred to in paragraph (b) in respect of another part or other parts of the investigation period as if that other part or each of these other parts were the whole of the investigation period.
(2A) If paragraph (2)(aa) or (c) applies:
(a) each part of the investigation period referred to in the paragraph must not be less than 1 month; and
(b) the parts of the investigation period as referred to in paragraph (2)(aa), or as referred to in subparagraphs (2)(c)(i) and (ii), must together comprise the whole of the investigation period.
(3) If the Minister is satisfied:
(a) that the export prices differ significantly among different purchasers, regions or periods; and
(b) that those differences make the methods referred to in subsection (2) inappropriate for use in respect of a period constituting the whole or a part of the investigation period;
the Minister may, for that period, compare the respective export prices determined in relation to individual transactions during that period with the weighted average of corresponding normal values over that period.
(4) If, in a comparison under subsection (2), the Minister is satisfied that the weighted average of export prices over a period is less than the weighted average of corresponding normal values over that period:
(a) the goods exported to Australia during that period are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods and that period is the difference between those weighted averages.
(4A) To avoid doubt, a reference to a period in subsection (4) includes a reference to a part of the investigation period.
(5) If, in a comparison under subsection (2), the Minister is satisfied that an export price in respect of an individual transaction during the investigation period is less than the corresponding normal value:
(a) the goods exported to Australia in that transaction are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods and that transaction is the difference between that export price and that normal value.
(6) If, in a comparison under subsection (3), the Minister is satisfied that the export prices in respect of particular transactions during the investigation period are less than the weighted average of corresponding normal values during that period:
(a) the goods exported to Australia in each such transaction are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods is the difference between each relevant export price and the weighted average of corresponding normal values.
(10) Any comparison of export prices, or weighted average of export prices, with any corresponding normal values, or weighted average of corresponding normal values, must be worked out in respect of similar units of goods, whether determined by weight, volume or otherwise.
269TACC Working out whether a financial contribution or income or price support confers a benefit
(1) Subject to subsections (2) and (3), the question whether a financial contribution or income or price support confers a benefit is to be determined by the Minister having regard to all relevant information.
(2) A direct financial payment received from any of the following is taken to confer a benefit:
(a) a government of a country;
(b) a public body of a country;
(c) a public body of which a government of a country is a member;
(d) a private body entrusted or directed by a government of a country or by such a public body to carry out a governmental function.
Guidelines for financial contributions
(3) In determining whether a financial contribution confers a benefit, the Minister must have regard to the following guidelines:
(a) the provision of equity capital from a government or body referred to in subsection (2) does not confer a benefit unless the decision to provide the capital is inconsistent with normal investment practice of private investors in the country concerned;
(b) the making of a loan by a government or body referred to in subsection (2) does not confer a benefit unless the loan requires the enterprise receiving the loan to repay a lesser amount than would be required for a comparable commercial loan which the enterprise could actually obtain;
(c) the guarantee of a loan by a government or body referred to in subsection (2) does not confer a benefit unless the enterprise receiving the guarantee is required to repay on the loan a lesser amount than would be required for a comparable commercial loan without that guarantee;
(d) the provision of goods or services by a government or body referred to in subsection (2) does not confer a benefit unless the goods or services are provided for less than adequate remuneration;
(e) the purchase of goods or services by a government or body referred to in subsection (2) does not confer a benefit unless the purchase is made for more than adequate remuneration.
(4) For the purposes of paragraphs (3)(d) and (e), the adequacy of remuneration in relation to goods or services is to be determined having regard to prevailing market conditions for like goods or services in the country where those goods or services are provided or purchased.
269TACD Amount of countervailable subsidy
(1) If the Minister is satisfied that a countervailable subsidy has been received in respect of goods, the amount of the subsidy is an amount determined by the Minister in writing.
(2) After the amount of the countervailable subsidy received in respect of goods has been worked out, the Minister must, if that subsidy is not quantified by reference to a unit of those goods determined by weight, volume or otherwise, work out how much of that amount is properly attributable to each such unit.
269TAE Material injury to industry
(1) In determining, for the purposes of section 269TG or 269TJ, whether material injury to an Australian industry has been or is being caused or is threatened or would or might have been caused, or whether the establishment of an Australian industry has been materially hindered, because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A) to (2C), have regard to:
(aa) if the determination is being made for the purposes of section 269TG—the size of the dumping margin, or of each of the dumping margins, worked out in respect of goods of that kind that have been exported to Australia and dumped; and
(ab) if the determination is being made for the purposes of section 269TJ—particulars of any countervailable subsidy received in respect of goods of that kind that have been exported to Australia; and
(a) the quantity of goods of that kind that, during a particular period, have been or are likely to be exported to Australia from the country of export; and
(b) any increase or likely increase, during a particular period, in the quantity of goods of that kind exported to Australia from the country of export; and
(c) any change or likely change, during a particular period, in the proportion that:
(i) the quantity of goods of that kind exported to Australia from the country of export and sold or consumed in Australia; or
(ii) the quantity of goods of that kind, or like goods, produced or manufactured in the Australian industry and sold or consumed in Australia;
bears to the quantity of goods of that kind, or like goods, sold or consumed in Australia; and
(d) the export price that has been or is likely to be paid by importers for goods of that kind exported to Australia from the country of export; and
(e) the difference between:
(i) the price that has been or is likely to be paid for goods of that kind, or like goods, produced or manufactured in the Australian industry and sold in Australia; and
(ii) the price that has been or is likely to be paid for goods of that kind exported to Australia from the country of export and sold in Australia; and
(f) the effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the price paid for goods of that kind, or like goods, produced or manufactured in the Australian industry and sold in Australia; and
(g) any effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the relevant economic factors in relation to the Australian industry; and
(h) if the determination is being made for the purposes of section 269TJ and the goods are agricultural products—whether the exportation of goods of that kind to Australia from the country of export in those circumstances has given or is likely to give rise to a need for financial or other support, or an increase in financial or other support, for the Australian industry from the Commonwealth Government.
(2) In determining, for the purposes of section 269TH or 269TK, whether material injury to an industry in a third country has been or is being caused or is threatened or would or might have been caused because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A) to (2C), have regard to:
(aa) if the determination is being made for the purposes of section 269TH—the size of the dumping margin, or of each of the dumping margins, worked out in respect of goods of that kind that have been exported to Australia and dumped; and
(ab) if the determination is being made for the purposes of section 269TK—particulars of any countervailable subsidy received in respect of goods of that kind that have been exported to Australia; and
(a) the quantity of goods of that kind that, during a particular period, have been or are likely to be exported to Australia from the country of export; and
(b) any increase or likely increase, during a particular period, in the quantity of goods of that kind exported to Australia from the country of export; and
(c) any change or likely change, during a particular period, in the proportion that:
(i) the quantity of goods of that kind exported to Australia from the country of export and sold or consumed in Australia; or
(ii) the quantity of goods of that kind, or like goods, produced or manufactured in the third country and sold or consumed in Australia;
bears to the quantity of goods of that kind, or like goods, sold or consumed in Australia; and
(d) the export price that has been or is likely to be paid by importers for goods of that kind exported to Australia from the country of export; and
(e) the difference between:
(i) the price that has been or is likely to be paid for goods of that kind, or like goods, produced or manufactured in the third country and sold in Australia; and
(ii) the price that has been or is likely to be paid for goods of that kind exported to Australia from the country of export and sold in Australia; and
(f) the effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the price paid for goods of that kind, or like goods, produced or manufactured in the third country and sold in Australia; and
(g) any effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the relevant economic factors in relation to the producer or manufacturer in the third country.
(2A) In making a determination in relation to the exportation of goods to Australia for the purposes referred to in subsection (1) or (2), the Minister must consider whether any injury to an industry, or hindrance to the establishment of an industry, is being caused or threatened by a factor other than the exportation of those goods such as:
(a) the volume and prices of imported like goods that are not dumped; or
(b) the volume and prices of importations of like goods that are not subsidised; or
(c) contractions in demand or changes in patterns of consumption; or
(d) restrictive trade practices of, and competition between, foreign and Australian producers of like goods; or
(e) developments in technology; or
(f) the export performance and productivity of the Australian industry;
and any such injury or hindrance must not be attributed to the exportation of those goods.
(2AA) A determination for the purposes of subsection (1) or (2) must be based on facts and not merely on allegations, conjecture or remote possibilities.
(2B) In determining:
(a) for the purposes of subsection (1), whether or not material injury is threatened to an Australian industry; or
(b) for the purposes of subsection (2), whether or not material injury is threatened to an industry in a third country;
because of the exportation of goods into the Australian market, the Minister must take account only of such changes in circumstances, including changes of a kind determined by the Minister, as would make that injury foreseeable and imminent unless dumping or countervailing measures were imposed.
(2C) In determining, for the purposes referred to in subsection (1) or (2), the effect of the exportations of goods to Australia from different countries of export, the Minister should consider the cumulative effect of those exportations only if the Minister 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) if the determination is being made for the purposes of section 269TG or 269TH—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) if the determination is being made for the purposes of section 269TG or 269TH—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
(da) if the determination is being made for the purposes of section 269TJ or 269TK:
(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
(e) 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.
(3) A reference in subsection (1) or (2) to the relevant economic factors in relation to an Australian industry, or in relation to an industry in a third country, in relation to goods of a particular kind exported to Australia is a reference to:
(a) the quantity of goods of that kind, or like goods, produced or manufactured in the industry; and
(b) the degree of utilization of the capacity of the industry to produce or manufacture goods of that kind, or like goods; and
(c) the quantity of goods of that kind, or like goods, produced or manufactured in the industry:
(i) for which there are sales or forward orders; or
(ii) which are held as stocks; and
(d) the value of sales of, or forward orders for, goods of that kind, or like goods, produced or manufactured in the industry; and
(e) the level of profits earned in the industry, that are attributable to the production or manufacture of goods of that kind, or like goods; and
(f) the level of return on investment in the industry; and
(g) cash flow in the industry; and
(h) the number of persons employed, and the level of wages paid to persons employed, in the industry in relation to the production or manufacture of goods of that kind, or like goods; and
(ha) the terms and conditions of employment (including the number of hours worked) of persons employed in the industry in relation to the production or manufacture of goods of that kind, or like goods; and
(j) the share of the market in Australia for goods of that kind, or like goods, that is held by goods of that kind, or like goods, produced or manufactured in the industry; and
(k) the ability of persons engaged in the industry, to raise capital in relation to the production or manufacture of goods of that kind, or like goods; and
(m) investment in the industry.
269TAF Currency conversion
(1) If, for the purposes of this Part, comparison of the export prices of goods exported to Australia and corresponding normal values of like goods requires a conversion of currencies, that conversion, subject to subsection (2), is to be made using the rate of exchange on the date of the transaction or agreement that, in the opinion of the Minister, best establishes the material terms of the sale of the exported goods.