(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.
(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.
Commissioner must terminate countervailable subsidy investigation if export causes negligible injury
(14) 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.
(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
(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.
Commissioner must give public notice of termination decisions
(15) 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.
Negligible countervailable subsidisation
(16) 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%.
Definition—reasonable examination period
(17) 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.
269TE Commissioner to have regard to same considerations as Minister
(1) In this section:
decision means:
(a) a decision of the Commissioner under section 269TC or 269TD; or
(b) a decision contained in a report by the Commissioner under section 269ZZL.
recommendation means:
(a) a recommendation included in a report prepared by the Commissioner under section 269TEA, 269ZDA, 269ZDBG, 269ZG or 269ZHF; or
(b) a recommendation by the Commissioner to the Minister under section 269TEB or 269X.
(2) If the Commissioner is required, in making a recommendation or decision, to determine any matter ordinarily required to be determined by the Minister under this Act or the Dumping Duty Act, the Commissioner must determine the matter:
(a) in like manner as if he or she were the Minister; and
(b) having regard to the considerations to which the Minister would be required to have regard if the Minister were determining the matter.
(3) Subsection (2) applies in respect of goods that have not been imported into Australia at the time of the Commissioner’s determination of a matter in respect of those goods as if:
(a) the Commissioner’s determination of the matter were being made after an importation of those goods into Australia; and
(b) the importation had occurred at the time of the anticipated importation of those goods into Australia.
(4) Nothing in this section implies that the determination of a matter by the Commissioner affects the power of the Minister to make a final determination in respect of that matter for the purposes of the Dumping Duty Act.
269TEA Report to Minister concerning publication of notices under this Part
(1) If:
(a) application has been made under section 269TB for publication of a dumping duty notice or a countervailing duty notice; and
(b) the Commissioner has initiated an investigation in respect of the application under section 269TC;
the Commissioner must, after holding such an investigation and within 155 days after the date of initiation of the investigation or such longer period as the Minister allows under section 269ZHI, give the Minister a report in respect of the goods the subject of the application that:
(c) recommends whether any such notice should be published and the extent of any duties that are, or should be, payable under the Dumping Duty Act because of that notice; and
(d) recommends, in particular, whether the Minister ought to be satisfied as to the matters in respect of which the Minister is required to be satisfied before such a notice can be published; and
(e) recommends, where applicable, whether the Minister ought to give notice to the exporter under subsection 269TG(3D) or to the government of the country of export or to the exporter under subsection 269TJ(2A).
(2) The Commissioner’s report must, to the extent that it is practicable to do so, also extend to any like goods not covered by the application but imported into Australia during the period starting on the date of initiation of the investigation and ending 20 days after the statement of essential facts in respect of the investigation is placed on the public record.
(3) Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the Commissioner’s report in relation to an application under section 269TB for publication of a dumping duty notice or a countervailing duty notice, the Commissioner:
(a) must have regard to:
(i) the application; and
(ii) any submission concerning the publication of that notice to which the Commissioner has had regard for the purpose of formulating the statement of essential facts; and
(iii) the statement of essential facts; and
(iv) any submission made in response to that statement that is received by the Commissioner within 20 days after the placing of that statement on the public record; and
(b) may have regard to any other matters that the Commissioner considers to be relevant.
(4) The Commissioner is not obliged to have regard to any submission made in response to the statement of essential facts that is received by the Commissioner after the end of the period referred to in subparagraph (3)(a)(iv) if to do so would, in the Commissioner’s opinion, prevent the timely preparation of the report to the Minister.
(5) The report to the Minister must include a statement of the Commissioner’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.
269TEB Commissioner recommendations concerning undertakings offered after preliminary affirmative determination
(1) A person who:
(a) if application has been made for publication of a dumping duty notice in respect of goods—is an exporter of such goods; or
(b) if application has been made for publication of a countervailing duty notice in respect of goods—is the government of the country of export, or is an exporter, of such goods;
may, at any time after the making of a preliminary affirmative determination in respect of the application, indicate in writing to the Commissioner the terms in which the government or exporter would be prepared to give an undertaking to the Minister.
(2) The Commissioner must consider whether he or she is satisfied that those terms are adequate to remove the injury, or the threat of injury, to which the application is addressed so far as the government or exporter offering the undertaking is concerned and, by notice in writing:
(a) if the Commissioner is so satisfied—recommend to the Minister that he or she accept the undertaking; or
(b) if the Commissioner is not so satisfied—indicate to the government or exporter the reasons why he or she is not so satisfied.
(3) A government or an exporter may, having regard to those reasons, indicate to the Commissioner that the government or exporter is prepared to give an undertaking to the Minister in revised terms.
(4) If an undertaking in revised terms is proposed to the Commissioner, the Commissioner must:
(a) if he or she is not satisfied that the undertaking as so revised is adequate to remove the injury, or the threat of injury, to which the application is addressed—inform the government or exporter to that effect; and
(b) if he or she is so satisfied—recommend to the Minister that the Minister accept the undertaking as revised.
(5) If the Minister accepts the undertaking proposed by a government, investigation of the application is suspended so far as it relates to goods exported from that country.
(6) If the Minister accepts the undertaking proposed by an exporter, investigation of the application is suspended so far as it relates to goods exported by that exporter.
(7) If:
(a) investigation of an application is suspended:
(i) so far as it relates to goods exported from a particular country; or
(ii) so far as it relates to goods exported by a particular exporter;
on the Minister’s acceptance of an undertaking proposed by the government of that country or by that exporter; and
(b) that government or exporter breaches that undertaking;
the Minister may take such steps as he or she considers necessary to facilitate the resumption of the investigation in so far as it relates to goods exported from that country or by that exporter.
(8) Without limiting the generality of subsection (7), the Minister may, in writing, require the Commissioner to resume the investigation so far as it relates to goods exported from the country, or by the exporter, who breached the undertaking subject to such conditions as to the conduct of the investigation as the Minister considers appropriate.
(9) In determining the steps to be taken in order to facilitate the resumption of an investigation, and, where the Minister requires that the Commissioner resume the investigation, to determine the conditions on which the resumed investigation is to be conducted, the Minister must have regard to:
(a) the procedures that had been completed when the undertaking was accepted; and
(b) the length of time that has elapsed since the acceptance of the undertaking.
(10) The Commissioner is not obliged to consider the terms of any proposed undertaking provided by a government or an exporter if to do so would prevent the timely making of a recommendation by the Commissioner to the Minister under section 269TEA.
(11) If the Commissioner does not recommend the acceptance of an undertaking under this section, the Commissioner may nonetheless recommend to the Minister that he or she seek an undertaking from the government or exporter who proposed the undertaking and set out the terms of the undertaking that he or she recommends the Minister seek.
Division 3—Consideration of anti‑dumping matters by the Minister
269TF What this Division is about
This Division sets out the role of the Minister in considering an anti‑dumping matter. The Minister will normally be acting after receipt of a report from the Commissioner. In particular, the Division:
• empowers the Minister to publish dumping duty notices or countervailing duty notices;
• empowers the Minister to accept undertakings rather than publish such notices;
• outlines the matters of which the Minister must be satisfied before publishing such notices or accepting such undertakings;
• indicates the period during which such notices or undertakings remain in force;
• sets out the circumstances in which such notices can extend to goods already exported.
269TG Dumping duties
(1) Subject to section 269TN, where the Minister is satisfied, as to any goods that have been exported to Australia, that:
(a) the amount of the export price of the goods is less than the amount of the normal value of those goods; and
(b) because of that:
(i) material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered; or