Customs Tariff (Anti-Dumping) Regulation 2013

The regulation is short and conceptually focused. It revolves around a small set of recurring terms and calculation forms that are the primitives for interim duty assessment. Key concepts in the text are:

• Minister ascertained values: The regulation repeatedly depends on values "ascertained, or last ascertained, by the Minister for the purpose of the notice" (reg 5(2)(a), reg 5(6)(a), reg 5(7)(a); reg 6 equivalents). Those ministerial determinations supply the baseline export price of the model "goods of that kind" and the normal value of those goods. The regulation therefore treats the Minister's ascertained figures as authoritative inputs to any interim duty calculation.

• Export price (particular goods v goods of that kind): The text distinguishes between the export price of the "particular goods" being imported and the export price of "goods of that kind" as ascertained for the notice. Many methods require a comparison between the particular goods' export price and the ascertained export price (see reg 5(2)(b); reg 5(3)(a)). Where the particular goods' export price is lower than the ascertained export price, certain additional computations apply.

• Normal value: The normal value of goods of that kind is the comparator to determine the extent of dumping. The regulation instructs computing the difference between export price and normal value as the starting point for duty calculations (see reg 5(2)(a), reg 5(4)-(5), reg 5(6)(a)-(b), reg 5(7)(a)-(b)).

• Four calculation architectures:

  • Combination of fixed and variable: compute the difference between ascertained export price of goods of that kind and ascertained normal value; also, where the particular goods' export price is less than the ascertained export price, compute that difference; add the two differences; apply the first difference either by proportion relative to the ascertained export price and then applied to the greater of the particular goods' export price and the ascertained export price, or by reference to quantity, or both (reg 5(2)-(3)).
  • Floor price: compute difference between export price of the particular goods and the ascertained normal value; only applies if export price of particular goods is less than ascertained normal value (reg 5(4)-(5)).
  • Fixed duty: compute the difference between the ascertained export price of goods of that kind and the ascertained normal value, then apply that amount by reference to a measure of quantity of the particular goods (reg 5(6)).
  • Ad valorem: compute the difference between the ascertained export price of goods of that kind and ascertained normal value; express that difference as a proportion of the ascertained export price and apply that proportion to the export price of the particular goods (reg 5(7)).

• Symmetry with third‑country duties: Reg 6 sets out the same set of four architectures for interim third‑country dumping duty, using parallel language and the same reliance on ascertained export price and normal value (see reg 6(2)-(7)).

• Cross‑references to other statutes and provisions: Definitions of "export price" and "normal value" are not in this regulation; the instrument directs readers to sections 269TAB and 269TAC of the Customs Act 1901 (reg 4). The legal authority and the statutory hooks for when these methods apply are in the Customs Tariff (Anti‑Dumping) Act 1975 (the "Act"), specifically subsections 8(5BB) and 9(5AB) referenced in regs 5(1) and 6(1), and in the Customs Act notice provisions s269TG(1) or (2) and s269TH(1) or (2) (see regs 5(1) and 6(1)).

The regulation therefore conceptualises interim duties as arithmetic constructs built from ministerially ascertained price baselines and observable particular‑shipment export prices or quantities. It leaves certain elements,such as the method selection mechanism, the unit or measure of quantity applied, and the procedural context for the Minister's ascertainment,to the parent legislation or to the ministerial notice itself.

Directly affected parties under the regulation are those whose goods are subject to the interim notice provisions in the Customs Act and the Anti‑Dumping Act: principally importers bringing into Australia goods that are the subject of notices under subsection 269TG(1) or (2) or 269TH(1) or (2) of the Customs Act 1901, and exporters of those goods whose export prices may be compared. The regulation explicitly ties its calculations to "goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act 1901" (reg 5(1)) for interim dumping duty and to analogous notices under s269TH(1) or (2) for interim third‑country dumping duty (reg 6(1)).

Other affected parties include:

• Australian producers who lodge anti‑dumping complaints and rely on interim duties as a protective measure. The regulation shapes the mechanics of duty amounts that may be imposed in response to those complaints by prescribing the calculation forms (reg 5 and reg 6).

• Customs and border authorities responsible for administering interim duties at import clearance. The authorities will need to apply the formulas and rely on the Minister's ascertained export price and normal value as inputs (see regs 5(2)(a), 5(6)(a), 5(7)(a)).

• Customs brokers, freight forwarders, and compliance advisers who must compute duties, ensure appropriate declarations, and maintain records of the relevant export prices, normal values, and quantity measures used in computation.

• Related downstream actors such as Australian importers, wholesalers and retailers that buy the affected goods on the domestic market. Interim duties alter landed cost and therefore affect pricing decisions and supply chain margins.

• The Minister and departmental officers who ascertain the reference values; the regulation repeatedly depends on those ascertained figures (see regs 5(2)(a), 5(3), 6(2)(a), 6(3)). The Minister's ascertainment is therefore a central administrative step that determines duty magnitudes.

The regulation does not itself create or specify customs collection processes, nor does it specify notification or appeal mechanisms; those elements lie in the parent Acts. Consequently, parties must monitor notices under the cited Customs Act provisions (s269TG and s269TH) and the Act's interim power provisions (subsections 8(5BB) and 9(5AB) of the Act), because the regulation is operative only in the mechanical sense once such a notice and ministerial ascertainments are in place (regs 5(1) and 6(1)).

What the regulation imposes and what it does not impose can be stated plainly from the text.

Duties imposed by the regulation

• Prescriptive calculation methods: The regulation prescribes four alternative calculation methods for interim dumping duty (reg 5) and four equivalent methods for interim third‑country dumping duty (reg 6). Those methods dictate how the duty payable on specified goods is to be calculated once those goods are "the subject of a notice" under the cited Customs Act provisions (regs 5(1), 6(1)).

• Use of ministerially ascertained baselines: Each prescribed method depends on the Minister's ascertained, or last ascertained, export price of goods of that kind and the Minister's ascertained, or last ascertained, normal value (see reg 5(2)(a), reg 5(6)(a), reg 5(7)(a); reg 6 equivalents). The regulation therefore requires that duty calculations be anchored to those ministerial figures.

• Conditional application rules: Several methods apply only under specified conditions. For example, the floor price method applies only if the export price of the particular goods is less than the ascertained normal value (reg 5(5); reg 6(5)). The combination method requires an additional calculation where the particular goods' export price is less than the ascertained export price (reg 5(2)(b); reg 6(2)(b)).

Rights and omitted rights in the regulation

• No procedural or appeal rights specified: The regulation itself does not create appeal rights, objection procedures, or review mechanisms for the calculation choices. It is silent on appeals; any rights of review must be sought under the parent Acts and relevant administrative law or judicial review regimes. This follows from the instrument's focus on method, and its use of the statutory hooks in the Acts (see regs 3, 5(1), 6(1)).

• No collection, remission or refund rules: The regulation prescribes how duties are to be calculated but does not set rules for collection, timing of payment, remission, or refund of interim duties. Those processes are governed elsewhere in the Customs Act and the Anti‑Dumping Act.

• Delegation and administrative execution left to other law: The regulation assumes that the Minister will have ascertained requisite values and that notices under the cited Customs Act provisions will be issued. The instrument does not itself set thresholds for those ascertainments or the substantive criteria for initiating an interim duty notice; those criteria are in the parent Acts.

Operationally, the regulation assigns the pivotal administrative role to the Minister for producing authoritative price inputs, and then prescribes arithmetic operations to convert those inputs and the particular goods' export price or quantity into an interim duty figure. Parties subject to interim duty are therefore obliged to have available the export price of the particular goods, the ascertained export price of goods of that kind, and the ascertained normal value, and to compute duties according to the specific method stated in the notice under the Customs Act (reg 5(1), reg 6(1)).

The regulation contains no penalty or enforcement provisions of its own. It is a procedural and formulaic instrument that prescribes methods for calculating duties; it does not stipulate mechanisms for enforcement, collection, remittance, or sanctions for non‑compliance. The legal authority and enforcement regime are referenced via the parent Acts: the Customs Tariff (Anti‑Dumping) Act 1975 is cited as the enabling statute (reg 3), and the regulation explicitly links its application to notices under s269TG(1) or (2) and s269TH(1) or (2) of the Customs Act 1901 (regs 5(1), 6(1)). Enforcement and penalty provisions therefore remain in those Acts and in the Customs Act itself.

Practical implications of that omission

• Enforcement follows the parent Acts and customs law: Duties calculated under these methods will be levied, collected, and enforced under the Customs Act and the Anti‑Dumping Act powers and processes. The regulation supplies the calculation rule to be used in that enforcement; collection, requirements for payment at import, detention, or seizure, and penalty sanctions for false statements or non‑payment are matters for the enforcement provisions of the Customs Act and the Anti‑Dumping Act rather than this regulation.

• Administrative reliance on ministerial determinations: Because the regulation consistently relies on values "ascertained, or last ascertained, by the Minister" (e.g. reg 5(2)(a)), administrative enforcement will depend on the availability and publication or notification of those ministerial ascertainments in the relevant notice. Where such figures are not readily accessible, that may complicate enforcement or compliance, but the regulation itself does not set notice or publication requirements.

• No criminal or civil penalties in the regulation text: Stakeholders should not expect to find offence elements, penalty units, or time limits for enforcement actions in this instrument. To identify the penalties that attach to non‑payment, false representation, or obstruction, practitioners must consult the relevant sections of the Customs Act 1901 and the Anti‑Dumping Act.

For compliance and contestation, parties will need to turn to the Acts and established administrative law remedies for any disputes over the imposition, collection, or accuracy of interim duties calculated under the methods in this regulation.

The regulation is explicitly framed as an instrument subordinate to, and operationally dependent on, the Customs Tariff (Anti‑Dumping) Act 1975 and the Customs Act 1901. Its interactions are therefore specific and narrow.

Statutory dependencies and cross‑references

• Enabling statute: The regulation is made under the Customs Tariff (Anti‑Dumping) Act 1975 (reg 3). The methods it prescribes are designed to give effect to the interim duty powers in that Act, namely subsections 8(5BB) (interim dumping duty) and 9(5AB) (interim third‑country dumping duty) as referenced in regs 5(1) and 6(1). The regulation cannot operate independently of those statutory powers; it supplies calculation mechanics when the statutory trigger is engaged.

• Customs Act definitions and notice provisions: The regulation directs that "export price" and "normal value" have the meanings given in sections 269TAB and 269TAC of the Customs Act 1901 (reg 4). It also ties its application to particular notices under s269TG(1) or (2) and s269TH(1) or (2) of the Customs Act (regs 5(1), 6(1)). Therefore, substantive definitions, the procedural context for issuing notices, and possibly the modes of publication and collection will be governed by the Customs Act provisions it references.

Operational interactions

• Ministerial ascertainments as inputs: The regulation makes the ministerially ascertained export price and normal value the operational inputs for duty calculations (see reg 5(2)(a), reg 5(6)(a), reg 5(7)(a) and reg 6 equivalents). That places central importance on the parent Acts' rules on how the Minister determines, revises, or republishes those figures. The regulation’s phrases "ascertained, or last ascertained, by the Minister for the purpose of the notice" indicate that previous ascertainments may persist as the operative baselines for calculation, which interacts with administrative law questions about the currency and reviewability of those figures.

• Treatment of particular goods at import: The regulation’s calculations refer to the "export price of the particular goods" and measures of quantity of "the particular goods" (for example, reg 5(2)(b), reg 5(3)(b), reg 5(6)(b)). How "particular goods" are identified and tied to import declarations, how the export price is evidenced, and how quantity measures are defined and measured will interact with the Customs Act obligations for import declarations, record‑keeping, and evidence.

• No operational change to collection or appeal processes in this instrument: Because collection, remission, and dispute resolution procedures are not set out here, those interactions continue to be governed by the Customs Act and the Anti‑Dumping Act. Practitioners must therefore map the calculation rules in this regulation onto the broader procedural framework (notice issuance, requirement to pay provisional duties, objection and review pathways) that exists in the parent legislation and administrative practice.

Limitations of the regulation’s cross‑statutory reach

• Delegation, publication and timing: The regulation does not specify how or when ministerial ascertainments are to be published, nor does it set time limits for re‑ascertainment, nor define the units or the "measure of quantity" to be used when applying fixed duty methods (see reg 5(3)(b), reg 5(6)(b)). These are gaps where the practical interplay between this regulation and the Customs Act’s procedural provisions becomes critical in implementation.

• Definitions beyond the regulation: As the terms "export price" and "normal value" are defined elsewhere, any interpretive disputes about those concepts will be resolved by reference to the specific definitions and tests in sections 269TAB and 269TAC of the Customs Act 1901. The regulation only instructs how to use those defined values once determined.

In sum, the regulation is mechanically nested under the Anti‑Dumping Act and the Customs Act. Its practical effect depends on notice issuance, ministerial determinations under the referenced statutory provisions, and the customs collection and dispute resolution regimes provided in the other statutes.

The instrument provides limited historical detail in its own text. Key points extractable from the regulation are:

• Instrument identity and date: The regulation is the Customs Tariff (Anti‑Dumping) Regulation 2013, Select Legislative Instrument No. 91, 2013. It was made on 30 May 2013 by the Administrator of the Government of the Commonwealth of Australia on the advice of the Federal Executive Council and by command of the Minister for Home Affairs (instrument heading and signature block).

• Commencement link: The regulation commences on the commencement of Schedule 1 to the Customs Tariff (Anti‑Dumping) Amendment Act (No. 1) 2012 (reg 2). The regulation therefore came into force contemporaneously with that schedule, rather than on the day it was signed.

• Source enactment: The regulation is made under the Customs Tariff (Anti‑Dumping) Act 1975 (reg 3), indicating its position as a subordinate legislative instrument subordinate to that Act.

No subsequent amendments, repeals or modification dates are recorded in the text provided. The regulation itself does not contain any transitional or savings provisions, nor does it include a schedule of amendments. There are also no notes in the instrument recording replacement of earlier regulations or retrospective changes.

For a full statutory amendment chronology or to determine whether this instrument has subsequently been amended, revoked, or superseded, one must consult official legislative databases or the Federal Register of Legislation. The text provided here is the instrument as made in 2013 and identifies its originating Act and commencement trigger. Any post‑2013 modification or interaction with later amending legislation is not recorded in the instrument text supplied.

The regulation as provided contains no record of litigation, judicial interpretation, or case citations. The instrument itself does not name any cases, nor does it include marginal notes or references to decisions. Because the regulation is procedural and formulaic, disputes that might generate litigation would likely centre on:

• The Minister's ascertainment of export price or normal value under the referenced statutory powers (since the regulation depends on those figures as an input; see regs 5(2)(a), 5(6)(a), 5(7)(a) and reg 6 equivalents).

• The proper application of the calculation method specified in a particular notice (for example, whether the combination method or the ad valorem method was correctly applied to particular goods).

• The relationship between a notice under s269TG or s269TH of the Customs Act and the calculation methods in regs 5 and 6.

However, the instrument text does not identify any litigation history or reported authorities interpreting these provisions. Any judicial or tribunal decisions concerning the application, interpretation, or validity of the calculation methods would be found in court decisions or tribunal determinations addressing disputes under the Anti‑Dumping Act and the Customs Act, not within the regulation text itself.

Practitioners seeking authorities that interpret or apply these regulation provisions must therefore search case law databases, tribunal decisions, and administrative determinations dealing with interim anti‑dumping measures, ministerial ascertainments, and the procedural interplay between notices under the Customs Act and the calculation methods set out here. The regulation alone does not supply that body of interpretive material.

The regulation’s brevity hides several technical pitfalls that are visible on careful reading of the text.

1. Reliance on ministerial ascertainments

• The regulation repeatedly relies on values "ascertained, or last ascertained, by the Minister for the purpose of the notice" (for example reg 5(2)(a), reg 5(6)(a), reg 5(7)(a)). A practical "gotcha" is that the regulation assumes these ascertained figures are available and authoritative. If the notice does not publish or adequately describe the ascertained export price or normal value, applying the formulas may be impossible or contested. The regulation itself does not set publication or evidentiary rules.

2. Conditional application rules that change outcomes materially

• The floor price duty method applies only if the export price of the particular goods is less than the ascertained normal value (reg 5(5)). If this threshold test is not met, that method is inapplicable. Similar conditional triggers operate in the combination method where an extra component is only worked out "if the export price of the particular goods is less than the export price of goods of that kind as ascertained" (reg 5(2)(b)). Small pricing differences can therefore determine which arithmetic steps are engaged.

3. "Greater of" provision can increase duty

• Under the combination method, the proportion worked out can be applied to the greater of (i) the export price of the particular goods and (ii) the export price of goods of that kind as ascertained, or last ascertained, by the Minister (reg 5(3)(a)(i)-(ii)). That choice of the greater of two values can produce a higher dollar duty than if the particular goods' export price alone were used.

4. Unspecified measure of quantity

• Several methods allow or require the calculated amount to be "applied by reference to a measure of the quantity of the particular goods" (reg 5(3)(b), reg 5(6)(b); reg 6 equivalents). The regulation does not define the unit or measure of quantity (kilograms, units, tonnes, pieces, cubic metres, etc.). In practice, that unit must derive from the notice, the Customs Act or administrative practice. Disagreements about the correct quantity measure will materially affect duty payable.

5. No direction on who selects the method

• The regulation prescribes the available methods but does not itself state who chooses which method applies to a particular notice. The regulation ties the calculations to "... the goods the subject of a notice under subsection 269TG(1) or (2)..." (reg 5(1)), implying that the notice will specify which method is to be used. Practitioners must therefore consult the notice to determine which method applies in each case; absence of specification in the notice would create uncertainty.

6. Definitions are outside the regulation

• The terms "export price" and "normal value" are defined by the Customs Act (reg 4). Any nuance in those definitions, including adjustments, exclusions, or valuation rules, will materially change the arithmetic outcomes here. Users must consult sections 269TAB and 269TAC of the Customs Act to understand exactly what figures to use.

7. Parallel but separate regime for third‑country duties

• The text for interim third‑country dumping duty (reg 6) is essentially identical to that for interim dumping duty, but the legal hook is different (notice under s269TH instead of s269TG and power in subsection 9(5AB) of the Act rather than 8(5BB)). Practitioners should not assume identical procedural triggers or rights attach to both regimes without checking the parent Act and the particular notice.

8. No currency, rounding or timing rules

• The regulation does not specify currency units, rounding rules, effective dates for ascertained values, or whether duties apply per consignment or per invoice. Those operational features will matter in calculation and administration, and their omission means practitioners must look to the notice, the Customs Act or administrative guidance.

9. "As ascertained, or last ascertained"

• The use of "or last ascertained" suggests that previously ascertained figures remain operative until changed. That can create tension where market prices change rapidly but the ascertained baseline does not. The regulation does not state when or how the Minister may re‑ascertain or republish values.

Careful reading of the notice accompanying any interim duty action, and cross‑checking with the parent statutes and administrative practice, is essential to avoid miscalculation and compliance errors.

Compliance under this regulation is primarily an exercise in accurate input gathering, correct arithmetic as per the method specified in the notice, and record‑keeping to substantiate the figures used. The regulation itself sets no formal compliance checklist, so the following steps are practical, grounded directly in the text and the way the instrument interfaces with notices and ministerial ascertainments.

1. Monitor notices under the Customs Act

• The regulation applies only to goods that are "the subject of a notice under subsection 269TG(1) or (2) of the Customs Act 1901" for interim dumping duty and "under subsection 269TH(1) or (2)" for interim third‑country dumping duty (regs 5(1) and 6(1)). Ensure your compliance team is subscribed to, or monitoring, published notices under those sections so you can identify when a notice affects your imports and which method is specified.

2. Identify the prescribed method in the notice

• The regulation sets out four possible methods (combination, floor, fixed per quantity, ad valorem). Determine which of those the notice requires. The regulation prescribes the calculation procedure for each; the notice should indicate which of them is to be applied to the goods it covers (see reg 5 generally and reg 6 generally).

3. Obtain the ministerially ascertained figures

• All methods depend on the "export price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice" and the "normal value of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice" (see reg 5(2)(a), reg 5(6)(a), reg 5(7)(a); reg 6 equivalents). Secure those official figures from the notice or the administering authority. Do not substitute your own estimates for the Minister’s ascertained values.

4. Assemble data for the particular goods

• For the particular consignment, you will need:
  • The export price of the particular goods (the regulation compares this to the ascertained export price or normal value; see reg 5(2)(b), reg 5(4)-(5));
  • A measure of quantity for the consignment if the method applies duty by reference to quantity (reg 5(3)(b), reg 5(6)(b));
  • Any relevant invoice, packing, freight, or related documentation necessary to prove the export price used under the Customs Act definitions (see reg 4 referencing ss269TAB and 269TAC of the Customs Act).

5. Apply the arithmetic exactly as prescribed

• Combination method: compute difference between ascertained export price and ascertained normal value (reg 5(2)(a)); if export price of particular goods < ascertained export price, compute that difference as well (reg 5(2)(b)); add both (reg 5(2)(c)); apply the first difference either as a proportion of the ascertained export price applied to the greater of the ascertained export price and the particular goods' export price, or by reference to quantity, or a mix (reg 5(3)).
• Floor price: compute difference between export price of particular goods and ascertained normal value; applicable only if particular goods' export price < ascertained normal value (reg 5(4)-(5)).
• Fixed duty: compute difference between ascertained export price and ascertained normal value, then apply that dollar amount per unit or other quantity measure to the particular goods (reg 5(6)(a)-(b)).
• Ad valorem: compute difference between ascertained export price and ascertained normal value; express that as a proportion of the ascertained export price and apply that proportion to the export price of the particular goods (reg 5(7)(a)-(b)).

6. Maintain contemporaneous records and calculations

• Keep copies of the notice, the ministerially ascertained figures used, the consignment invoice and freight/declaration paperwork demonstrating the export price of the particular goods, calculations showing how the duty was derived, and any communications with customs or the administering agency. The regulation’s reliance on ministerial ascertainments and on particular goods’ export prices makes contemporaneous documentary evidence essential.

7. Resolve ambiguity via the notice and parent Acts

• When the regulation leaves operational matters unspecified, such as the measure of quantity, rounding, currency or which party elects a calculation variant, consult the notice, the Customs Act definitions (ss269TAB and 269TAC), and the Anti‑Dumping Act (subsections 8(5BB) and 9(5AB)). If the notice is silent on critical operational points, seek clarification from the customs authority or the administering agency before lodging declarations or paying duties.

8. Coordinate with customs brokers and counsel

• Given the potential for material financial exposure depending on method selection and the Minister's ascertainments, coordinate calculations with customs brokers, in‑house or external legal counsel, and accounting staff to ensure the chosen method is properly applied and recorded.

9. Prepare for potential subsequent adjustments

• The regulation allows reliance on values "last ascertained" by the Minister, suggesting those baselines may remain in force until re‑ascertained (see reg 5(2)(a)). Be prepared for adjustments or re‑ascertainments that could change the duty basis for later consignments. Maintain processes to update calculations when the Minister republishes or revises the ascertained figures.

10. Verify which statutory regime applies

• The instrument distinguishes interim third‑country dumping duty (reg 6) from interim dumping duty (reg 5). Verify whether the notice triggering duties is under s269TG or s269TH of the Customs Act, and whether the empowering subsection in the Anti‑Dumping Act is subsection 8(5BB) or 9(5AB), because procedural rights, available defences or interactions with other measures may differ.

Following these steps will align operational practice to the regulation’s prescribed mechanics. Where ambiguity remains, the regulation’s cross‑references require practitioners to consult the appropriate sections of the Customs Act 1901 and the Customs Tariff (Anti‑Dumping) Act 1975 for the procedural, evidentiary and review frameworks that govern any interim duty action.