An expression used in this subsection and subparagraph 3.3 of Article 9 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 set out in Annex 1A to the World Trade Organization Agreement has the same meaning in this subsection as it has in that subparagraph.
(6) On the basis of the provisional calculation of duty referred to in paragraph (5)(b), the Commissioner must decide:
(a) if satisfied that the total interim duty paid on the goods the subject of the application exceeds the total duty payable under the Dumping Duty Act by at least the amount contended in the application—to recommend to the Minister:
(i) that the Minister make an assessment of duty by ascertaining, for each consignment of those goods, the variable factors as so provisionally ascertained; and
(ii) that the Minister order a repayment of the amount of interim duty overpaid; or
(b) if satisfied that the total interim duty paid on the goods the subject of the application exceeds the total duty payable under the Dumping Duty Act but not to the extent contended in the application—to recommend to the Minister:
(i) that the Minister make an assessment of duty by ascertaining, for each consignment of those goods, the variable factors as so provisionally ascertained; and
(ii) that the Minister order a repayment of the amount of interim duty overpaid; or
(c) if satisfied that the total amount of duty payable under the Dumping Duty Act on the goods the subject of the application is equal to or exceeds the total of interim duty that was paid on the goods—to recommend to the Minister:
(i) that the Minister make an assessment of duty by ascertaining, for each consignment of those goods, the variable factors as so provisionally ascertained; but
(ii) that the Minister order that any duty in excess of the interim duty paid on those goods be waived.
(7) As soon as practicable, but not later than 7 days after making a decision under subsection (6), the Commissioner must:
(a) notify the applicant, in writing, of the decision made; and
(b) if the decision is a negative preliminary decision:
(i) inform the applicant of the reasons why the Commissioner made the decision; and
(ii) inform the applicant of the applicant’s right, within 30 days of the receipt of the notification, to apply for a review of the Commissioner’s decision by the Review Panel under Division 9.
(8) The Commissioner must:
(a) if he or she has made a positive preliminary decision—recommend to the Minister, not later than 7 days after making the decision, that the Minister give effect to that decision; and
(b) if he or she has made a negative preliminary decision and the applicant has not exercised the right to seek a review of the decision by the Review Panel—recommend to the Minister, not later than 7 days after the end of the period available for seeking review of the decision, that the Minister give effect to that decision.
269Y Duty assessments
(1) As soon as practicable, but no later than 30 days, after receiving a recommendation from the Commissioner or from the Review Panel under subsection 269ZZU(2) in relation to goods the subject of an application, the Minister must, having regard to the terms of that recommendation, by notice in writing:
(a) ascertain, for the purposes of this Act and the Dumping Duty Act, the variable factors relevant to the determination of duty payable under the Dumping Duty Act in respect of each consignment; and
(b) order that the total interim duty overpaid in respect of all consignments to which the application relates be repaid or that the total unpaid duty in excess of the interim duty already paid be waived, as the case requires.
(2) As soon as practicable after issuing a notice under subsection (1) the Minister must ensure that a copy of that notice is provided to the applicant.
(3) If the Minister issues a notice under subsection (1) ordering that an amount of interim duty be repaid to an applicant the Commonwealth is liable to make a repayment to the applicant accordingly.
(4) If:
(a) one or more consignments of goods of a particular kind that are the subject of a dumping duty notice or a countervailing duty notice are entered for home consumption during an importation period; and
(b) interim duty is paid on those goods under the Dumping Duty Act; and
(c) application is not lodged under section 269V of this Act for an assessment of duty payable on those goods under the Dumping Duty Act;
then:
(d) the Minister is taken, for the purposes of this Act and the Dumping Duty Act, to have ascertained each variable factor relevant to the determination of duty on each such consignment at the level at which that factor was ascertained or last ascertained by the Minister for the purpose of the dumping duty notice or countervailing duty notice; and
(e) the interim duty paid on those goods is taken to be the duty payable.
269YA Rejection etc. of application for duty assessment
(1) This section has effect despite sections 269X and 269Y if an application under section 269V is lodged with the Commissioner under section 269W.
(2) The Commissioner must reject the application if the Commissioner is satisfied within 20 days after it is lodged that it does not contain everything it must contain under subsections 269W(1) and (1A).
(3) The Commissioner must reject the application if:
(a) the application contains a commitment described in paragraph 269W(1A)(b); and
(b) within 20 days after the time described in that paragraph, the Commissioner is satisfied that he or she has not received from the applicant and one or more other persons sufficient evidence to establish that the applicant’s opinion of the amounts described in whichever of paragraphs 269W(1)(c) and (d) apply is correct.
(4) The Commissioner may terminate examination of the application if he or she is satisfied after the last of the 20 days mentioned in subsection (2) or (3) of this section that he or she does not have enough information to be able to comply with paragraph 269X(5)(a).
(5) If the Commissioner rejects the application or terminates examination of it:
(a) the Commissioner must notify the applicant in writing of the following:
(i) the rejection or termination;
(ii) the reasons for the rejection or termination;
(iii) the applicant’s right, within 30 days of the receipt of the notification, to apply for a review by the Review Panel under Division 9 of the rejection or termination; and
(b) the Commissioner must not:
(i) provisionally ascertain a variable factor or provisionally calculate an amount under subsection 269X(5) in connection with the application; or
(ii) decide what recommendation to make to the Minister under subsection 269X(6) in connection with the application; and
(c) subsection 269Y(4) has effect as if the application had not been lodged under section 269V.
Division 5—Review of anti‑dumping measures
269Z What this Division is about
This Division enables affected parties (exporters, industry etc.) to apply for the review of anti‑dumping measures. The Division also empowers the Minister to initiate such a review. The Division:
• sets out the circumstances in which applications can be brought;
• empowers the Commissioner to recommend, through a Minister’s request, an extension of the ambit of a review where appropriate;
• sets out the procedure to be followed by the Commissioner in dealing with applications or requests and preparing reports for the Minister;
• empowers the Minister, after consideration of such reports, to leave the anti‑dumping measures unaltered or to modify them as appropriate;
• empowers the Minister, if interim duty has been paid under the Dumping Duty Act, to make any necessary adjustment of that interim duty.
269ZA Applications and requests for review of anti‑dumping measures
(1) If:
(a) anti‑dumping measures have been taken in respect of goods; and
(b) an affected party considers that it may be appropriate to review those measures as they affect a particular exporter of those goods, or as they affect exporters of those goods generally, because:
(i) one or more of the variable factors relevant to the taking of the measures in relation to that exporter or those exporters have changed; or
(ii) the anti‑dumping measures are no longer warranted;
the affected party may, by application lodged with the Commissioner, request that the Commissioner initiate such a review.
(2) An application for review of anti‑dumping measures must not be made:
(a) if the measures involve the publication of a dumping duty notice or a countervailing duty notice—earlier than 12 months after:
(i) the publication of the notice; or
(ii) the publication of a notice declaring the outcome of the last review of the notice (whether that last review was undertaken at the applicant’s request or not); and
(b) if the measures involve the acceptance of an undertaking—earlier than 12 months after:
(i) the publication of notice of the acceptance of that undertaking; or
(ii) the publication of a notice declaring the outcome of the last review of the undertaking (whether that last review was undertaken at the applicant’s request or not).
Example: If an application under section 269TB resulted in:
(a) the publication of the acceptance of an undertaking from exporter A on 1 January 1999; and
(b) the publication of a dumping duty notice covering exporters B and C on 1 March 1999;
an affected party could seek review of the undertaking on 2 January 2000 but could not seek review of both the undertaking and the dumping duty notices until 2 March 2000.
However, the Minister could decide to review the notices before 2 March 2000 either on his or her own initiative or on the recommendation of the Commissioner. See subsection (3).
(3) If:
(a) anti‑dumping measures have been taken in respect of goods; and
(b) the Minister considers (either as a result of a recommendation from the Commissioner under subsection 269ZC(4) or on his or her own initiative) that it may be appropriate to review those measures as they affect a particular exporter of those goods, or as they affect exporters of those goods generally, because:
(i) one or more of the variable factors relevant to the taking of the measures in relation to that exporter or those exporters may have changed; or
(ii) the anti‑dumping measures are no longer warranted;
the Minister may, at any time, by notice in writing, request that the Commissioner initiate a review under this Division.
(4) If, as a result of a person’s application under Division 6 for accelerated review of a dumping duty notice or a countervailing duty notice, the Minister has made a declaration under subsection 269ZG(3):
(a) that person may not make an application, under subsection (1) of this section, for a review of that notice earlier than 12 months after the making of that declaration; but
(b) for the purpose of determining whether subsection (2) permits any other person to apply for a review of the notice, the making of that declaration is not to be treated as a review of the notice.
(5) If:
(a) a person applies, under Division 9, for a review of the Minister’s decision to publish a dumping duty notice or a countervailing duty notice or not to publish such a notice; and
(b) as a result of that review:
(i) a dumping duty notice or a countervailing duty notice is published by the Minister despite an earlier decision not to publish such a notice; or
(ii) a dumping duty notice or countervailing duty notice originally published by the Minister is varied; or
(iii) another dumping duty notice or countervailing duty notice is substituted for the notice originally published by the Minister;
then, for the purpose only of determining whether subsection (2) permits a review of the new notice, the notice as varied or the substituted notice, that new notice, notice as varied or substituted notice has effect as if it had been published at the time of the Minister’s decision not to publish a notice, or at the time of publication of the original notice, as the case requires.
269ZB Content and lodgment of applications for review of anti‑dumping measures
(1) An application under subsection 269ZA(1) for review of anti‑dumping measures must:
(a) be in writing; and
(b) be in a form approved by the Commissioner for the purposes of this section; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated by the form; and
(e) be lodged in the manner approved under section 269SMS.
(2) Without otherwise limiting the matters that can be required by the form to be included, the application must include:
(a) a description of the kind of goods to which the measures the subject of the application relate; and
(b) a description of the measures the subject of the application; and
(c) if the application is based on a change in variable factors—a statement of the opinion of the applicant concerning:
(i) the variable factors relevant to the taking of the measures taken that have changed; and
(ii) the amount by which each such factor has changed; and
(iii) the information that establishes that amount; and
(d) if the application is based on circumstances that in the applicant’s view indicate that the anti‑dumping measures are no longer warranted—evidence, in accordance with the form, of the circumstances.
(3) The application is taken to have been lodged when the application is first received by a Commission staff member doing duty in relation to applications for review of anti‑dumping measures.
(4) The day on which the application is taken to have been lodged must be recorded on the application.
269ZC Consideration of applications and requests for review
(1) If an application under subsection 269ZA(1) for review of anti‑dumping measures is lodged with the Commissioner, the Commissioner must, within 20 days after receiving the application:
(a) examine the application; and
(b) if the Commissioner is not satisfied, having regard to the application and to any other information that the Commissioner considers relevant, of one or more of the matters referred to in subsection (2)—reject the application and inform the applicant, by notice in writing, accordingly.
(2) For the purposes of subsection (1), the matters to be considered in relation to an application are:
(a) that the application complies with section 269ZB; and
(b) that there appear to be reasonable grounds for asserting either, or both, of the following:
(i) that the variable factors relevant to the taking of anti‑dumping measures have changed;
(ii) that the anti‑dumping measures are no longer warranted.
(3) The notice informing the applicant of the rejection of the application must set out the reasons why the Commissioner was not satisfied of one or more of the matters set out in subsection (2).
(4) If the Commissioner decides not to reject an application for review of anti‑dumping measures, the Commissioner must either:
(a) publish a notice on the Anti‑Dumping Commission’s website indicating that it is proposed to review the measures covered by the application; or
(b) if the Commissioner considers that the review applied for should be extended to include any additional matter—recommend to the Minister that the review be extended accordingly.
(5) If the Commissioner is requested by the Minister to undertake a review of anti‑dumping measures, either as a result of a recommendation made to the Minister under subsection (4) or otherwise, the Commissioner must, on receipt of that request, publish a notice on the Anti‑Dumping Commission’s website indicating that it is proposed to review the measures covered by the request.
(6) If:
(a) the Commissioner recommends to the Minister under paragraph (4)(b) the extension of a review of anti‑dumping measures; but
(b) the Commissioner is informed by the Minister, within 20 days after that recommendation is made, that the Minister does not require the review to be so extended;
the Commissioner must, on being so informed, publish a notice on the Anti‑Dumping Commission’s website indicating that it is proposed to review the anti‑dumping measures under this Division covered by the original application.
(7) The notice published by the Commissioner under subsection (4), (5) or (6) must:
(a) describe the kind of goods to which the review relates; and
(b) describe the measures to which the review relates; and
(ba) if the review will examine whether the variable factors relevant to the taking of the measures have changed—state that fact; and
(bb) if the review will examine whether the measures are no longer warranted—state that fact; and
(c) indicate that a report will be made to the Minister:
(i) within 155 days after the date of publication of the notice; or
(ii) within such longer period as the Minister allows under section 269ZHI; and
(d) invite interested parties to lodge with the Commissioner, within 37 days after the date of publication of the notice, submissions concerning the review; and
(e) state that:
(i) within 110 days after the publication of the notice; or
(ii) such longer period as the Minister allows under section 269ZHI;
the Commissioner will place on the public record a statement of the essential facts on which the Commissioner proposes to base a recommendation concerning the measures under review; and
(f) invite interested parties to lodge with the Commissioner, within 20 days of that statement being placed on the public record, submissions in response to that statement; and
(g) indicate the address at which, or the manner in which, submissions under paragraph (d) or (f) can be lodged.
269ZCA Application to extend a review of anti‑dumping measures to include revocation
If:
(a) a notice was published by the Commissioner under subsection 269ZC(4), (5) or (6); and