This Division provides for the early review of a dumping duty notice or a countervailing duty notice on the application of certain exporters of goods covered by the notice. The review can be sought when a review of the notice under Division 5 would not be available and is only open to new exporters.
269ZE Circumstances in which accelerated review may be sought
(1) If a dumping duty notice or a countervailing duty notice has been published:
(a) in respect of goods exported from a particular country of export; or
(b) in respect of goods exported by new exporters from a particular country of export;
a new exporter from that country (other than such an exporter in respect of whom a declaration has already been made under paragraph 269ZG(3)(b) in respect of a previous application) may, by application lodged with the Commissioner, request an accelerated review of that notice in so far as it affects that exporter.
(2) If the Commissioner is satisfied that:
(a) because that exporter refused to co‑operate, in relation to the application for publication of that notice, the exportations of that exporter were not investigated; or
(b) the exporter is related to an exporter whose exports were examined in relation to the application for publication of that notice;
the Commissioner may reject the application.
(3) If, during the course of an accelerated review, the Commissioner becomes satisfied that:
(a) the exporter is refusing to co‑operate with any aspect of the review; or
(b) the exporter is related to an exporter whose exports were examined in relation to the application for publication of that notice;
the Commissioner may terminate the review.
(4) For the purposes of this section, an exporter is taken to be related to another exporter if the 2 exporters are associates of each other under subsection 269TAA(4).
269ZF Application for accelerated review
(1) An application for accelerated review must be in writing, be lodged in the manner approved under section 269SMS, and contain:
(a) a description of the kind of goods to which the dumping duty notice or countervailing duty notice relates; and
(b) a statement of the basis on which the exporter considers that the particular notice is inappropriate so far as the exporter is concerned.
(2) 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 accelerated review.
(3) The day on which an application is taken to be lodged must be recorded on the application.
269ZG Consideration of application
(1) The Commissioner must, after considering the application and making such inquiries as the Commissioner thinks appropriate, give the Minister a report recommending:
(a) that the dumping duty notice or countervailing duty notice the subject of the application remain unaltered; or
(b) that the dumping duty notice or countervailing duty notice the subject of the application be altered so as to apply to the applicant as if different variable factors had been fixed;
and set out the Commissioner’s reasons for so recommending.
(2) A report by the Commissioner under subsection (1) must be completed as soon as practicable and in any case not later than 100 days after the day the application is lodged.
(3) After considering the recommendation of the Commissioner and the reasons for the recommendation, the Minister must, by notice published on the Anti‑Dumping Commission’s website:
(a) declare that, for the purposes of this Act and the Dumping Duty Act, the original dumping duty notice or countervailing duty notice is to remain unchanged; or
(b) declare that, with effect from the date the application is lodged, this Act and the Dumping Duty Act have effect as if the original dumping duty notice or countervailing duty notice had applied to the applicant but the Minister had fixed specified different variable factors relevant to the determination of duty;
and, where the Minister does so, the declaration has effect according to its terms.
(3A) The Minister must make a declaration under subsection (3) within:
(a) 30 days after receiving the report; or
(b) if the Minister considers there are special circumstances that prevent the declaration being made within that period—such longer period as the Minister considers appropriate.
(3B) If paragraph (3A)(b) applies, the Minister must give public notice of the longer period.
(4) The Minister must, as soon as practicable after the issue of a notice under subsection (3), notify the applicant of the term of the notice.
269ZH Effect of accelerated review
If an application for accelerated review of a dumping duty notice or a countervailing duty notice is lodged:
(a) no interim duty can be collected in respect of consignments of goods, to which the application relates, entered for home consumption after the application is lodged and until the completion of the review; but
(b) the Commonwealth may, on the importation of goods to which the application relates, require and take securities under section 42 in respect of interim duty that may be payable.
Division 6A—Continuation of anti‑dumping measures
269ZHA What this Division is about
This Division provides for the Commissioner to alert interested parties to the anticipated termination of anti‑dumping measures and provide them with an opportunity, before those measures expire, to apply for a continuation of the measures. The Division:
• sets out the consequences if no application is made;
• outlines the procedure to be followed by the Commissioner in dealing with an application and preparing a report for the Minister;
• empowers the Minister, after consideration of that report, either to decide that the measures will expire or to take steps to ensure the continuation of the measures.
269ZHB Applications for continuation of anti‑dumping measures
(1) Not later than 9 months before particular anti‑dumping measures expire, the Commissioner must publish on the Anti‑Dumping Commission’s website a notice:
(a) informing persons that the dumping duty notice, countervailing duty notice or undertaking comprising those measures is due to expire on a specified day (the specified expiry day); and
(b) inviting the following persons to apply within 60 days to the Commissioner, in accordance with section 269ZHC, for a continuation of those measures:
(i) the person whose application under section 269TB resulted in those measures;
(ii) persons representing the whole or a portion of the Australian industry producing like goods to the goods covered by those measures.
(2) If the Minister makes a declaration under paragraph 269ZG(3)(b) in relation to an anti‑dumping duty notice or countervailing duty notice, the original dumping duty notice or countervailing duty notice and that notice as modified because of that declaration are both to be treated, for the purposes of this Division and despite section 269TM, as if they had been issued at the time of issue of the original notice.
(3) If no application for the continuation of the anti‑dumping measures is received by the Commissioner within the period specified in the notice, then, on the specified expiry day:
(a) to the extent that the measures comprise a dumping duty notice—that notice expires; and
(b) to the extent that the measures comprise a countervailing duty notice—that notice expires; and
(c) to the extent that the measures comprise the giving of an undertaking—the person who gave the undertaking is taken to be released from the undertaking and the investigation giving rise to the undertaking is terminated.
269ZHC Content and lodgment of application for continuation of anti‑dumping measures
(1) An application under section 269ZHB 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 in the form; and
(e) be lodged in the manner approved under section 269SMS.
(2) 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 continuation of anti‑dumping measures.
(3) The day on which the application is taken to have been lodged must be recorded on the application.
269ZHD Consideration of applications for continuation of anti‑dumping measures
(1) If an application or applications for continuation of anti‑dumping measures are lodged with the Commissioner in accordance with section 269ZHC, the Commissioner must, within 20 days after the end of the 60 days referred to in paragraph 269ZHB(1)(b):
(a) examine each such application; and
(b) if the Commissioner is not satisfied in relation to any of the applications, 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);
the Commissioner must reject each such 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) whether the application complies with section 269ZHC; and
(b) whether there appear to be reasonable grounds for asserting that the expiration of the anti‑dumping measures to which the application relates might lead, or might be likely to lead, to a continuation of, or a recurrence of, the material injury that the measures are intended to prevent.
(3) A notice informing an applicant of the rejection of an 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 continuation of anti‑dumping measures taken in respect of goods as they affect a particular exporter of those goods, the Commissioner must publish a notice on the Anti‑Dumping Commission’s website indicating that it is proposed to inquire whether continuation of the measures is justified.
(5) The notice published by the Commissioner must:
(a) describe the kind of goods to which the anti‑dumping measures apply; and
(b) describe the measures to which the application relates; and
(c) indicate that a report as to the continuation of these measures 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 continuation of the measures; 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 continuation of the measures; 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.
269ZHE Statement of essential facts in relation to continuation of anti‑dumping measures
(1) If the Commissioner publishes a notice under subsection 269ZHD(4) concerning the continuation of anti‑dumping measures, he or she must, within 110 days after the publication of the notice or such longer period as the Minister allows under section 269ZHI, ensure that there is placed on the public record a statement of the facts (the statement of essential facts) on which the Commissioner proposes to base his or her recommendation to the Minister concerning the continuation of those measures.
(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 relating generally to the inquiry that are received by the Commissioner within 37 days after the publication of the notice under subsection 269ZHD(4); 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 submissions relating generally to the inquiry that are 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.
269ZHF Report on application for continuation of anti‑dumping measures
(1) The Commissioner must, after conducting an inquiry into the continuation of anti‑dumping measures and within 155 days after the date of publication of the notice under subsection 269ZHD(4) in relation to those measures or such longer period as the Minister allows under section 269ZHI, give the Minister a report recommending:
(a) to the extent that the measures involved the publication of a dumping duty notice or a countervailing duty notice:
(i) that the notice remain unaltered; or
(ii) that the notice cease to apply to a particular exporter or to a particular kind of goods; or
(iii) that the notice have effect in relation to a particular exporter or to exporters generally, as if different variable factors had been ascertained; or
(iv) that the notice expire on the specified expiry day; and
(b) to the extent that the measures involved the acceptance by the Minister of an undertaking:
(i) that the undertaking remain unaltered; or
(ii) that the Minister seek a variation of the terms of the undertaking as indicated in the Commissioner’s report; or
(iii) that the undertaking expire on the specified expiry day.
(2) The Commissioner must not recommend that the Minister take steps to secure the continuation of the anti‑dumping measures unless the Commissioner is satisfied that the expiration of the measures would lead, or would be likely to lead, to a continuation of, or a recurrence of, the dumping or subsidisation and the material injury that the anti‑dumping measure is intended to prevent.
(3) Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the Commissioner’s report, the Commissioner:
(a) must have regard to:
(i) the application for continuation of the anti‑dumping measures; and
(ii) any submission relating generally to the continuation of the measures to which the Commissioner has had regard for the purpose of formulating the statement of essential facts in relation to the continuation of those measures; and
(iii) that 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 matter that the Commissioner considers to be relevant to the inquiry.
(4) The Commissioner is not obliged to have regard to any submission made in response to the statement of essential facts that is received 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.
269ZHG Powers of the Minister in relation to continuation of anti‑dumping measures
(1) After considering the report of the Commissioner and any other information that the Minister considers relevant, the Minister must by notice published in accordance with subsection (2):
(a) declare that the Minister has decided not to secure the continuation of the anti‑dumping measures concerned; or
(b) declare that the Minister has decided to secure the continuation of the anti‑dumping measures concerned.
Note: Subsection (3) deals with the end of the anti‑dumping measures and subsection (4) deals with the continuation of the anti‑dumping measures.
(1A) If the Minister receives the report less than 30 days before the specified expiry day, the Minister must make the declaration before that day.
(1B) If subsection (1A) does not apply, the Minister must make the declaration within:
(a) 30 days after receiving the report; or
(b) if the Minister considers there are special circumstances that prevent the declaration being made within that period—such longer period, ending before the specified expiry day, as the Minister considers appropriate.
(1C) If paragraph (1B)(b) applies, the Minister must give public notice of the longer period.
(2) A notice under subsection (1) must be published:
(a) before the expiry day specified in the notice; and
(b) on the Anti‑Dumping Commission’s website.
(3) If the Minister declares that he or she has decided not to secure the continuation of the anti‑dumping measures, then, on the specified expiry day:
(a) to the extent that the measures comprise a dumping duty notice—that notice expires; and
(b) to the extent that the measures comprise a countervailing duty notice—that notice expires; or
(c) to the extent that the measures comprise the giving of an undertaking—the person who gave the undertaking is taken to be released from the undertaking and the investigation giving rise to the undertaking is terminated;
as the case requires.
(4) If the Minister declares that he or she has decided to secure the continuation of the anti‑dumping measures, the continuation of those measures is so secured: