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Instrument of Approval - Review of certain decisions concerning dumping or countervailing duties - approved forms (10/04/2012)
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ASSESSMENT OF THE AMOUNT OF DUMPING OR COUNTERVAILING DUTY PAYABLE
INFORMATION FOR APPLICANTS
WHAT DECISIONS ARE REVIEWABLE BY THE TMRO?
The role of the Trade Measures Review Officer (the TMRO) is to review certain decisions made by the Minister responsible for Customs and Border Protection, or by the Chief Executive Officer of the Australian Customs and Border Protection Service (the CEO).
The TMRO may review decisions made by the CEO:
- to reject an application for dumping or countervailing measures;
- to terminate an investigation into an application for dumping or countervailing measures;
- to reject or terminate examination of an application for duty assessment; and
- to recommend to the Minister the refund of an amount of interim duty less than the amount contended in an application for duty assessment, or waiver of an amount over the amount of interim duty paid.
The TMRO may review decisions made by the Minister:
- to publish a dumping duty notice;
- to publish a countervailing duty notice;
- not to publish a dumping duty notice; and
- not to publish a countervailing duty notice.
It is essential that applications for review be lodged in accordance with the requirements of the Customs Act 1901 (the Act). The TMRO does not have any discretion to accept an invalidly made or late-lodged application.
Division 9 of Part XVB of the Act deals with reviews by the TMRO. Intending applicants should familiarise themselves with the relevant sections of the Act, and should also examine the explanatory brochure produced by the Trade Measures Review Secretariat (available at [www.tmro.gov.au](http://www.tmro.com.au)).
WHICH APPLICATION FORM SHOULD BE USED?
There are separate application forms for each category of reviewable decision made by the CEO, and for decisions made by the Minister. It is important for intending applicants to ensure that they use the correct form.
This is the form to be used when applying for TMRO review of a decision
of the CEO in respect of an assessment of the amount of dumping or
countervailing duty payable. It is approved by the TMRO pursuant to
s 269ZXA(1) of the Act.
WHO MAY APPLY FOR REVIEW OF A DECISION IN RESPECT OF AN ASSESSMENT OF THE AMOUNT OF DUMPING OR COUNTERVAILING DUTY PAYABLE?
If the Minister signs a dumping or countervailing duty notice, importers are required to pay interim dumping or countervailing duty. If an importer considers that the amount of interim duty paid exceeds the actual duty payable, the importer can request that the CEO assess the duty payable. If the CEO undertakes that assessment, and under s 269X(6)(b) or (c) makes a decision that is less favourable to the applicant than what the applicant contended for, this is referred to as a negative preliminary decision (s 269T(1)).
Only the party which lodged the application for the assessment of duty may apply to the TMRO for review of that assessment.
WHEN MUST AN APPLICATION BE LODGED?
An application for a review must be received within 30 days after the applicant was notified of the CEO’s assessment.
The application is taken as being made on the date upon which it is received by the TMRO after it has been properly lodged in accordance with the instructions under 'Where and how should the application be lodged?' (below).
WHAT INFORMATION MUST AN APPLICATION CONTAIN?
An application should clearly and comprehensively set out the grounds on which the review is sought, and provide sufficient particulars to satisfy the TMRO that the CEO's decision should be reviewed. It is not sufficient simply to request that a decision be reviewed.
The TMRO does not have any investigative function, and must take account only of information which was before the CEO when the CEO made the reviewable decision. The TMRO will disregard any information in applications and submissions that was not available to the CEO (s 269ZZU(3)).
HOW LONG WILL THE REVIEW TAKE?
The TMRO must make a decision within 60 days of the receipt of the application for review (s 269ZZU(4)). In special circumstances, however, the Minister may allow the TMRO a longer period for completion of the review.
WHAT WILL BE THE OUTCOME OF THE REVIEW?
The TMRO must either affirm the CEO's decision or revoke it and substitute a new decision (s 269ZZU(1)). If the TMRO revokes and substitutes a new decision, the TMRO will recommend to the Minister to give effect to that decision (s 269ZZU(2)).
The TMRO's report is then made to the Minister and the Minister will determine the amount of duty payable, having regard to the terms of the TMRO's report (s 269Y(1)).
WHERE AND HOW SHOULD THE APPLICATION BE LODGED?
Applications must be EITHER:
\- lodged with, or mailed by prepaid post to:
Trade Measures Review Officerc/o Ms Kristy AlexanderAustralian Government SolicitorGPO Box 2727SYDNEY NSW 2000AUSTRALIALevel 42 MLC Centre19 Martin PlaceSYDNEY NSW 2000DX 44 SYDNEY- OR emailed to (BOTH):Kristy.Alexander@ags.gov.au ANDreviewofficer@tmro.gov.au- OR sent by facsimile to:Trade Measures Review Officerc/o Ms Kristy Alexander+61 2 9581 7732
WHERE CAN FURTHER INFORMATION BE OBTAINED?
Further information about reviews by the TMRO can be obtained at the TMRO website (www.tmro.gov.au) or from:Trade Measures Review SecretariatMs Kristy AlexanderAustralian Government SolicitorGPO Box 2727SYDNEY NSW 2000AUSTRALIATelephone: +61 2 9581 7640Facsimile: +61 2 9581 7732
Inquiries and requests for general information about dumping matters should be directed to:
Director, Quality Assurance and Operational Support
Australian Customs and Border Protection Service
Customs House
5 Constitution Avenue
CANBERRA CITY ACT 2601
Telephone: +61 2 6275 6066
Facsimile: +61 2 6275 6990
FALSE OR MISLEADING INFORMATION
It is an offence for a person to give the TMRO written information that the person knows to be false or misleading in a material particular (Penalty: 20 penalty units – on 1 March 2012 this equates to $2200).
APPLICATION FOR REVIEW OF
DECISION OF THE CEO IN RESPECT OF AN ASSESSMENT OF THE AMOUNT OF DUMPING OR COUNTERVAILING DUTY PAYABLE
Under s 269ZZO of the Customs Act 1901 (Cth), I hereby request that the Trade Measures Review Officer review a decision by the Chief Executive Officer of the Australian Customs and Border Protection Service in respect of an assessment of:
dumping duty; and/or
countervailing duty
in respect of the goods which are the subject of this application.
I believe that the information contained in the application:
provides reasonable grounds for a review to be undertaken; and
is complete and correct to the best of my knowledge and belief.
I have included the following formation in an attachment to this application:
o Name, street and postal address, and form of business of the applicant (for example, company, partnership, sole trader).
o Name; title/position; telephone and facsimile numbers; and e-mail address of a contact within the organisation.
o Name of consultant/adviser (if any) representing the applicant and a copy of the authorisation for the consultant/adviser.
o Full description of the imported goods to which the application relates.
o The tariff classification/statistical code of the imported goods.
o A copy of the written advice from the CEO of the decision to terminate the investigation.
o Date of notification of the reviewable decision and the method of the notification.
o A detailed statement setting out the grounds upon which the Review Officer is being asked to review a decision by the CEO in respect of the assessment of the amount of dumping or countervailing duty payable.
Signature: ….………………………………………………………………………..
Name: …………………………………….…………………………………………
Position: ……….…………………………………………………………………….
Applicant Company/Entity:
......………..……………………………………………………….........
Date: / /
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APPLICATION FOR REVIEW
OF A DECISION
WHETHER TO PUBLISH
A DUMPING DUTY NOTICE OR
A COUNTERVAILING DUTY NOTICE
INFORMATION FOR APPLICANTS
WHAT DECISIONS ARE REVIEWABLE BY THE TMRO?
The role of the Trade Measures Review Officer (the TMRO) is to review certain decisions made by the Minister responsible for Customs and Border Protection, or by the Chief Executive Officer of the Australian Customs and Border Protection Service (the CEO).
The TMRO may review decisions made by the CEO:
- to reject an application for dumping or countervailing measures;
- to terminate an investigation into an application for dumping or countervailing measures;
- to reject or terminate examination of an application for duty assessment; and
- to recommend to the Minister the refund of an amount of interim duty less than the amount contended in an application for duty assessment, or waiver of an amount over the amount of interim duty paid.
The TMRO may review decisions made by the Minister:
- to publish a dumping duty notice;
- to publish a countervailing duty notice;
- not to publish a dumping duty notice; and
- not to publish a countervailing duty notice.
It is essential that applications for review be lodged in accordance with the requirements of the Customs Act 1901 (the Act). The TMRO does not have any discretion to accept an invalidly made or late-lodged application.
Division 9 of Part XVB of the Act deals with reviews by the TMRO. Intending applicants should familiarise themselves with the relevant sections of the Act, and should also examine the explanatory brochure produced by the Trade Measures Review Secretariat (available at [www.tmro.gov.au](http://www.tmro.com.au)).
The TMRO only has the power to make recommendations to the Minister to affirm the reviewable decision or to direct the CEO of the Australian Customs and Border Protection Service to reinvestigate a finding or findings that formed the basis of the reviewable decision. The TMRO has no power to revoke the Minister’s decision or substitute another decision for the Minister's decision.
WHICH APPLICATION FORM SHOULD BE USED?
There are separate application forms for each category of reviewable decision made by the CEO, and for decisions made by the Minister. It is important for intending applicants to ensure that they use the correct form.
This is the form to be used when applying for TMRO review of a decision of the Minister whether to publish a dumping duty notice or countervailing duty notice (or both). It is approved by the TMRO pursuant to s 269ZXA(1) of the Act.
WHO MAY APPLY FOR REVIEW OF A MINISTERIAL DECISION?
Any interested party may lodge an application for review to the TMRO of a review of a ministerial decision. An “interested party” may be:
\- the original applicant for dumping or countervailing measures;
- a party representing the industry, or a portion of the industry, which produces the goods which are the subject of the reviewable decision;
- a party directly concerned with the importation or exportation to Australia of the goods;
- a party directly concerned with the production or manufacture of the goods;
- a trade association, the majority of whose members are directly concerned with the production or manufacture, or the import or export of the goods to Australia; or
- the government of the country from which the goods originated or were exported.
Intending applicants should refer to s 269ZX of the Act to establish whether they are eligible to apply.
WHEN MUST AN APPLICATION BE LODGED?
An application for a review must be received within 30 days after a public notice of the reviewable decision was first published in a national Australian newspaper (s 269ZZD).
The application is taken as being made on the date upon which it is received by the Trade Measures Review Officer after it has been properly lodged in accordance with the instructions under 'Where and how should the application be lodged?' (below).
WHAT INFORMATION MUST AN APPLICATION CONTAIN?
Any applicant applying for review must establish, to the satisfaction of the TMRO, that, on the basis of the particulars contained in the application, there are reasonable grounds to warrant a re-investigation of a finding or findings identified in the application (s 269ZZF).
An application must clearly and comprehensively set out the grounds on which a review is sought, and provide sufficient particulars concerning the challenged finding or findings to satisfy the TMRO that a reinvestigation of these could lead to a change to the reviewable decision to which the application relates. The TMRO may reject an application on the basis that insufficient particulars have been included in the application. It is not sufficient simply to request that a decision be reviewed.
The TMRO may also request additional information seeking further particulars from the applicant within the 30 day period after a public notice of the reviewable decision was first published (s 269ZZG).
If an application contains information which is confidential, or if publication of information contained in the application would adversely affect a person's business or commercial interest, the application must be rejected by the TMRO, unless an appropriate summary statement has been prepared and accompanies the application.
If the applicant seeks to bring confidential information to the TMRO's attention (either in their application or subsequently), the applicant must prepare a summary statement which contains sufficient detail to allow the TMRO to reasonably understand the substance of the information, but the summary must not breach the confidentiality or adversely affect a person's business or commercial interest (s 269ZZH).
While both the confidential information and the summary statement must be provided to the TMRO, only the summary statement will be lodged on the public record maintained by the TMRO.
Documents containing confidential information should be clearly marked "Confidential" and documents containing the summary statement of that confidential information should be clearly marked "Non-confidential public record version", or similar.
The TMRO does not have any investigative function, and must take account only of information to which the CEO had regard, or was required to have regard, when making recommendations to the Minister. The TMRO will disregard any information in applications and submissions which was not available to the CEO (s 269ZZK(4)).
Interested parties may also make a submission to the TMRO within 30 days of the publication of the notice of the application for review of the decision (s 269ZZJ).
HOW LONG WILL THE REVIEW TAKE?
The TMRO will make a recommendation to the Minister within 60 days of the public notification of the review – but not sooner than 30 days from the publication of the notice. In special circumstances the Minister may allow the TMRO a longer period for completion of the review (s 269ZZK(3)).
WHAT WILL BE THE OUTCOME OF THE REVIEW?
The TMRO will either recommend affirmation of the Minister's decision, or recommend that the CEO reinvestigate a finding/findings that formed the basis of the decision (s 269ZZK(1)).
Once the report from the TMRO is received by the Minister, the Minister will make a decision to affirm her/his original decision or the Minister will order a reinvestigation of a finding or findings made by the CEO (s 269ZZL(1)). The Minister ordinarily has 30 days to consider the recommendation made by the TMRO (s 269ZZL(2A)). The Minister will publish notice of her/his decision in either case. The CEO is obliged to conduct any reinvestigation in accordance with the terms given by the Minister (s 269ZZL(3)). A report will then be produced by the CEO. Once that subsequent report is received, the Minister will either affirm her/his original decision, or revoke that decision and substitute a new decision (s 269ZZM). The Minister will ordinarily do this within 30 days after receipt of the CEO's subsequent report, and there will be public notice of her/his decision.
WHERE AND HOW SHOULD THE APPLICATION BE LODGED?
Applications must be EITHER:
\- lodged with, or mailed by prepaid post to:
Trade Measures Review Officerc/o Ms Kristy AlexanderAustralian Government SolicitorGPO Box 2727SYDNEY NSW 2000AUSTRALIALevel 42 MLC Centre19 Martin PlaceSYDNEY NSW 2000DX 44 SYDNEY- OR emailed to (BOTH):Kristy.Alexander@ags.gov.au ANDreviewofficer@tmro.gov.au- OR sent by facsimile to:Trade Measures Review Officerc/o Ms Kristy Alexander+61 2 9581 7732
WHERE CAN FURTHER INFORMATION BE OBTAINED?
Further information about reviews by the TMRO can be obtained at the TMRO website (www.tmro.gov.au) or from:Trade Measures Review SecretariatMs Kristy AlexanderAustralian Government SolicitorGPO Box 2727SYDNEY NSW 2000AUSTRALIATelephone: +61 2 9581 7640Facsimile: +61 2 9581 7732
Inquiries and requests for general information about dumping matters should be directed to:
Director, Quality Assurance and Operational Support
Australian Customs and Border Protection Service
Customs House
5 Constitution Avenue
CANBERRA CITY ACT 2601
Telephone: +61 2 6275 6066
Facsimile: +61 2 6275 6990
FALSE OR MISLEADING INFORMATION
It is an offence for a person to give the TMRO written information that the person knows to be false or misleading in a material particular (Penalty: 20 penalty units – on 1 March 2012 this equates to $2200).
APPLICATION FOR REVIEW OF
DECISION OF THE MINISTER WHETHER TO PUBLISH A DUMPING DUTY NOTICE OR COUNTERVAILING DUTY NOTICE
Under s 269ZZC of the Customs Act 1901 (Cth), I hereby request that the Trade Measures Review Officer review a decision by the Minister responsible for Customs and Border Protection:
to publish : a dumping duty notice(s), and/or
a countervailing duty notice(s)
OR
not to publish : a dumping duty notice(s), and/or
a countervailing duty notice(s)
in respect of the goods which are the subject of this application.
I believe that the information contained in the application:
provides reasonable grounds to warrant the reinvestigation of the finding or findings that formed the basis of the reviewable decision that are specified in the application; and
is complete and correct to the best of my knowledge and belief.
I have included the following formation in an attachment to this application:
o Name, street and postal address, and form of business of the applicant (for example, company, partnership, sole trader).
o Name; title/position; telephone and facsimile numbers; and e-mail address of a contact within the organisation.
o Name of consultant/adviser (if any) representing the applicant and a copy of the authorisation for the consultant/adviser.
o Full description of the imported goods to which the application relates.
o The tariff classification/statistical code of the imported goods.
o Date of notification of the reviewable decision and the method of the notification.
o The finding or findings in that report that the Review Officer is being asked to review, (such as like goods, Australian industry, export prices, normal values, dumping, material injury, causal link, threat of material injury, non-injurious price).
o A detailed statement setting out the ground or grounds which would, in the applicant’s view, warrant the reinvestigation of the finding or findings which formed the basis of the decision by the Minister whether to publish a dumping duty notice or a countervailing duty notice. Such a statement must accompany each claim in an application for review.
o If the application contains material that is confidential or commercially sensitive, an additional non‑confidential version, containing sufficient detail to give other interested parties a clear and reasonable understanding of the information being put forward, must also be provided or the application will not be accepted.