(7) As soon as practicable after the Commissioner decides not to reject an application under section 269TB for a dumping duty notice or a countervailing duty notice, the Commissioner must ensure that a copy of the application, or of so much of the application as is not claimed to be confidential or to constitute information whose publication would adversely affect a person’s business or commercial interests, is made available:
(a) unless paragraph (b) applies—to all persons known to be exporters of goods the subject of the application and to the government of each country of export; or
(b) if the number of persons known to be exporters of goods the subject of the application is so large that it is not practicable to provide a copy of the application, or of so much of the application as is not the subject of such a claim, to each of them—to the government of each country of export and to each relevant trade association.
(8) If the Commissioner is satisfied that a country whose exporters are nominated in an application for a dumping duty notice or a countervailing duty notice has an economy in transition, the Commissioner must, as soon as practicable after deciding not to reject the application:
(a) give each nominated exporter from such a country a questionnaire about evidence of whether or not paragraphs 269TAC(5D)(a) and (b) apply; and
(b) inform each such exporter that the exporter has a specified period of not less than 30 days for answering questions in the questionnaire; and
(c) inform each such exporter that the investigation of the application will proceed on the basis that subsection 269TAC(5D) applies to the normal value of the exporter’s goods that are the subject of the application if:
(i) the exporter does not give the answers to the Commissioner within the period; or
(ii) the exporter gives the answers to the Commissioner within the period but they do not provide a reasonable basis for determining that paragraphs 269TAC(5D)(a) and (b) do not apply.
Note: Paragraph 269TAC(5D)(a) or (b) applies if a government of the country of export significantly affects the selling price in that country of like goods to the goods that are the subject of the application.
(9) Despite the fact that, under subsection (8), the Commissioner has informed an exporter given a questionnaire that the exporter has a particular period to answer the questions in the questionnaire, if the Commissioner is satisfied, by representation in writing by the exporter:
(a) that a longer period is reasonably required for the exporter to answer the questions; and
(b) that allowing a longer period will be practicable in the circumstances;
the Commissioner may notify the exporter, in writing, that a specified further period will be allowed for the exporter to answer the questions.
(10) If, during an investigation in respect of goods the subject of an application under section 269TB, the Commissioner becomes aware of an issue as to whether a countervailable subsidy (other than one covered by the application) has been received in respect of the goods, the Commissioner may examine that issue as part of the investigation.
269TD Preliminary affirmative determinations
(1) At any time not earlier than 60 days after the date of initiation of an investigation as to whether there are sufficient grounds for the publication of a dumping duty notice, or a countervailing duty notice, in respect of goods the subject of an application under section 269TB, the Commissioner may, if he or she is satisfied:
(a) that there appears to be sufficient grounds for the publication of such a notice; or
(b) that it appears that there will be sufficient grounds for the publication of such a notice subsequent to the importation into Australia of such goods;
make a determination (a preliminary affirmative determination) to that effect.
(2) Subject to subsection (3), in deciding whether to make such a preliminary affirmative determination, the Commissioner:
(a) must have regard to:
(i) the application concerned; and
(ii) any submissions concerning publication of the notice that are received by the Commissioner within 37 days after the date of initiation of the investigation; and
(b) may have regard to any other matters that the Commissioner considers relevant.
(3) The Commissioner is not obliged to have regard to any submission that is received by the Commissioner after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the Commissioner’s opinion, prevent the timely consideration of the question whether or not to make a preliminary affirmative determination.
(4) If the Commissioner makes a preliminary affirmative determination:
(a) the Commissioner must give public notice of that determination; and
(b) the Commonwealth may, at the time that determination is made or at any later time during the investigation, require and take securities under section 42 in respect of interim duty that may become payable if the Commissioner is satisfied that it is necessary to do so to prevent material injury to an Australian industry occurring while the investigation continues.
(5) If the Commonwealth decides to require and take securities under subsection (4), the Commissioner must give public notice of that decision.
269TDAA Statement of essential facts in relation to investigation of application under section 269TB
(1) The Commissioner must, within 110 days after the date of initiation of an investigation arising from an application under section 269TB or 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 Commissioner proposes to base a recommendation to the Minister in relation to that application.
(2) Subject to subsection (3), in formulating the statement of essential facts, the Commissioner:
(a) must have regard to:
(i) the application concerned; and
(ii) any submissions concerning publication of the notice that are received by the Commissioner within 37 days after the date of initiation of the investigation; and
(b) may have regard to any other matters that the Commissioner considers relevant.
(3) The Commissioner is not obliged to have regard to a submission received by the Commissioner after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the Commissioner’s opinion, prevent the timely placement of the statement of essential facts on the public record.
269TDA Termination of investigations
Commissioner must terminate if all dumping margins are negligible
(1) 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.
Commissioner must terminate if countervailable subsidisation is negligible
(2) 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.
Commissioner must terminate if negligible volumes of dumping are found
(3) 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.
What is a negligible volume of dumped goods?
(4) 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.
Aggregation of volumes of dumped goods
(5) 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%.
Negligible dumping margins to count in determining volume
(6) 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.
Commissioner must terminate if negligible volumes of countervailable subsidisation are found
(7) 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.
What is a negligible volume of subsidised goods?
(8) 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.
Aggregation of volumes of subsidised goods from countries other than developing countries
(9) 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%.
Aggregation of volumes of subsidised goods from developing countries
(10) 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%.
Aggregation of volumes of subsidised goods from member countries that are developing countries
(11) 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%.
Negligible countervailable subsidies to count in determining volume
(12) 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.
Commissioner must terminate dumping investigation if export causes negligible injury etc.