+--------------------------------------------------+-------------------+
| **[World Trade]{.smallcaps}**                    |                   |
|                                                  |                   |
| **[Organization]{.smallcaps}**                   |                   |
+--------------------------------------------------+-------------------+
|                                                  |                   |
+--------------------------------------------------+-------------------+
|                                                  | *                 |
|                                                  | *G/ADP/N/1/AUS/2\ |
|                                                  | G/SCM/N/1/AUS/2** |
|                                                  |                   |
|                                                  | 17 August 1998    |
+--------------------------------------------------+-------------------+
|                                                  | (98-3209)         |
+--------------------------------------------------+-------------------+
|                                                  |                   |
+--------------------------------------------------+-------------------+
| **Committee on Anti-Dumping Practices**          | Original: English |
|                                                  |                   |
| **Committee on Subsidies and Countervailing      |                   |
| Measures**                                       |                   |
+--------------------------------------------------+-------------------+

NOTIFICATION OF LAWS AND REGULATIONS

UNDER ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS

AUSTRALIA

The following communication, dated 10 August 1998, has been received
from the Permanent Mission of Australia.

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

Attached are the full texts of Australian anti-dumping and
countervailing legislation amended to incorporate amendments that
entered into force on 24 July 1998. Due to transitional arrangements, in
particular for the Anti-Dumping Authority, this legislation needs to be
read in conjunction with G/ADP/N/1/AUS/1-G/SCM/N/1/AUS/1 in respect of
current investigations.

[Explanatory Note]{.underline}

This notification is made pursuant to Articles 16.5 and 18.5 of the WTO
Agreement on Implementation of Article VI of GATT 1994 (Anti-Dumping
Agreement) and Articles 25.12 and 32.6 of the WTO Agreement on Subsidies
and Countervailing Measures (Subsidies Agreement).

2\. The attachments are:

a.  relevant parts of the Customs Act 1901;

b.  relevant Customs Regulations; and

c.  Customs Tariff (Anti-Dumping) Act 1975;

d.  amendment and subsequent repeal of the Anti-Dumping Authority Act
    1988; and

e.  application, transitional, and savings provisions.

3\. The attachments have incorporated into the principal acts amendments
that entered into force on 24 July 1998. Accordingly these are working
texts and are not legally authentic.

[ARTICLE 13 OF THE ANTI-DUMPING AGREEMENT AND ARTICLE 23 OF THE
SUBSIDIES AGREEMENT]{.underline}

4\. Australia\'s legislation containing provisions on anti-dumping and
countervailing measures is reviewable under the Administrative Decisions
Judicial Review Act (ADJR Act). Administrative actions relating to final
determinations and reviews of determinations are reviewable, therefore,
by the Federal Court, which is independent of the authorities
responsible for the determination or review. Grounds for judicial review
under the ADJR Act are:

\(a\) breach of the rules of natural justice;

\(b\) failure to observe procedures required by law;

\(c\) lack of jurisdiction;

\(d\) a decision not being authorized by the enactment;

\(e\) an improper exercise of power. This includes:

\- taking an irrelevant consideration into account

\- failing to take a relevant consideration into account

\- improper purpose

\- exercise of discretionary power in bad faith, at direction or behest
of another person, or in accordance with a rule or policy without regard
to the merits of the case

\- unreasonableness

\- resulting uncertainty

\- abuse of power;

\(f\) an error of law;

\(g\) fraud;

\(h\) no evidence; and

\(i\) the decision is otherwise contrary to law.

[ARTICLE 16.5(A) OF THE ANTI-DUMPING AGREEMENT AND ARTICLE 25.12(A) OF
THE SUBSIDIES AGREEMENT]{.underline}

5\. Under the amended legislation the Australian investigating authority
is the Australian Customs Service. The Anti-Dumping Authority will
finalize cases it has in train under the transitional provisions.

6\. The amendments, which abolish the Anti-Dumping Authority, also
establish the Trade Measures Review Officer (TRMO). The TRMO will review
certain decisions by the Minister and the Australian Customs Service. In
the former case the TRMO will make recommendations to the Minister but
will take decisions in respect of the latter. The matters subject to
review by the TRMO are set out in sections 269ZZA and 269ZZN of the
Customs Act.

***Customs Tariff (Anti-Dumping Act 1975)***

**[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}**

**TABLE OF PROVISIONS**

Section

  ------------ ----------------------------------------------------------
  **1.**       Short title

  **2.**       Commencement

  **6.**       Incorporation

  **7.**       Imposition of duties of Customs

  **8.**       Dumping duties

  **9.**       Third country dumping duties

  **10.**      Countervailing duties

  **11.**      Third country countervailing duties

  **12.**      Interim duty not to exceed security taken

  **16.**      Duties to be charged separately

  **21.**      Special duties to be additional to ordinary duties
  ------------ ----------------------------------------------------------

An Act relating to certain Special Duties of Customs

**Short title**

**1.** This Act may be cited as the *Customs Tariff (Anti-Dumping) Act
1975*.

**Commencement**

**2.** This Act shall come into operation on the day on which it
receives the Royal Assent.

**Incorporation**

**6.** The *Customs Act 1901* (in this Act referred to as the Customs
Act) is incorporated and shall be read as one with this Act.

**Imposition of duties of Customs**

**7.** Duties of Customs are imposed in accordance with this Act.

**8.** **Dumping Duties**

**(1)** This section does not apply to goods that are:

\(a\) the produce or manufacture of New Zealand; and

\(b\) imported into Australia after the commencement of this subsection.

**(2)** There is imposed, and there must be collected and paid, on goods
to which this section applies by virtue of a notice under subsection
269TG(1) or (2) of the Customs Act, a special duty of Customs, to be
known as dumping duty calculated in accordance with subsection (6).

**(3)** Pending final assessment of the dumping duty payable on goods
the subject of a notice under subsection 269TG(1) or (2) of the Customs
Act, an interim dumping duty is payable on those goods.

**(4)** Subject to subsection (5), the interim dumping duty payable on
goods the subject of a notice under subsection 269TG(1) or (2) of the
Customs Act is an amount equal to the sum of:

\(a\) the difference between 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 so ascertained, or
last so ascertained; and

\(b\) if the export price of those particular goods is lower than the
export price of goods of that kind as ascertained, or last ascertained,
by the Minister for the purpose of the notice---the amount by which the
latter export price exceeds the former.

**(5)** The Minister must, by signed notice, direct that the element of
interim dumping duty referred to in paragraph (4)(a) in respect of
particular goods be ascertained:

\(a\) as a proportion of the export price of those particular goods or
of the export price of goods of that kind as ascertained, or last
ascertained, by the Minister for the purpose of the dumping duty notice,
whichever is the greater; or

\(b\) by reference to a measure of the quantity of those particular
goods; or

\(c\) by reference to a combination of a proportion of the kind referred
to in paragraph (a) and a measure of the quantity of those particular
goods;

and the notice has effect accordingly.

**(5A)** The Minister must, in exercising his or her powers under
subsection (5) in respect of particular goods the subject of a notice
under subsection 269TG(1) or (2), if the non-injurious price of goods of
that kind as ascertained or last ascertained by the Minister for the
purposes of the notice is less than the normal value of goods of that
kind as so ascertained, or last so ascertained, have regard to the
desirability of fixing a lesser amount of duty such that the sum of:

\(a\) the export price of goods of that kind as so ascertained or last
so ascertained; and

\(b\) that lesser duty;

does not exceed that non-injurious price.

**(5B)** If, in the circumstances specified in section 269TJA of the
Customs Act, both a notice under section 269TG of that Act and a notice
under section 269TJ of that Act are published at the same time and in
respect of the same goods, the Minister must, in exercising his or her
powers under subsection (5) in relation to interim dumping duty in
respect of the goods, have regard to the desirability of fixing the
amount of interim dumping duty in respect of the goods such that the sum
of:

\(a\) the export price of those particular goods; and

\(b\) the amount of the interim dumping duty as so fixed; and

\(c\) the amount of interim countervailing duty as fixed under section
10;

does not exceed the non-injurious price of goods of that kind as
ascertained, or last ascertained, by the Minister for the purpose of
those notices.

**(5C)** If the Minister signs a notice under subsection (5), the
Minister must cause a copy of that notice to be published in the
*Gazette* unless, in the opinion of the Minister, the publication of
that notice would adversely affect the business or commercial interests
of any person.

**(5D)** A notice under subsection (5) applies to goods entered for home
consumption on or after a day specified in the notice, which may be
earlier than the day of publication of the notice but may not be a day
on which an earlier notice under that subsection applied to the goods.

**(6)** The dumping duty payable on goods the subject of a notice under
subsection 269TG(1) or (2) of the Customs Act is an amount equal to:

\(a\) unless paragraph (b) applies---the difference between the amounts
that the Minister ascertains to be the export price and the normal value
of those particular goods; or

\(b\) if, in a notice under subsection (5), the Minister determines that
the whole or a part of the interim dumping duty payable on those
particular goods is to be ascertained by reference to the non-injurious
price of goods of that kind as ascertained, or last ascertained, by the
Minister for the purpose of the first-mentioned notice---the difference
between:

\(i\) the amount that the Minister ascertains to be the export price of
those particular goods; and

\(ii\) the lower of the amount that the Minister ascertains to be the
normal value of those particular goods and that non-injurious price.

**(7)** The Minister may, by notice in writing, exempt goods from
interim dumping duty and dumping duty if he is satisfied:

\(a\) that like or directly competitive goods are not offered for sale
in Australia to all purchasers on equal terms under like conditions
having regard to the custom and usage of trade;

\(b\) that a Tariff Concession Order under Part XVA of the *Customs Act
1901* in respect of the goods is in force;

\(c\) that**:**

\(i\) where the goods are goods to which section 11 of the *Customs
Tariff Act 1987* applies---the item in Schedule 4 to that Act that
applies to the goods is expressed to apply to goods, or to a class or
kind of goods, as prescribed by by-law; and

\(ii\) suitably equivalent goods the produce or manufacture of Australia
are not reasonably available;

\(d\) that**:**

\(i\) the tariff classification in Schedule 3 to that Act that applies
to the goods is such that no duty is payable in respect of the goods or
the duty payable in respect of the goods is at a rate equivalent to a
rate payable under Schedule 4 on the goods, and

\(ii\) suitably equivalent goods the produce or manufacture of Australia
are not reasonably available; or

\(e\) that the goods, being articles of merchandise, are for use as
samples for the sale of similar goods.

**(8)** Where the Minister exempts goods from interim dumping duty and
dumping duty under subsection (7) by reason of his being satisfied as to
a matter specified in paragraph (7)(a), (c) or (d), the instrument of
exemption shall be published in the *Gazette*.

**(9)** In this section, a reference to a Tariff Concession Order
includes a reference to a Commercial Tariff Concession Order made under
Part XVA of the Customs Act as in force before section 10 of the
*Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act
1992* commences.

**Third country dumping duties**

**(1)** This section does not apply to goods that are:

\(a\) the produce or manufacture of New Zealand; and

\(b\) imported into Australia after the commencement of this subsection.

**(2)** There is imposed, and there must be collected and paid, on goods
to which this section applies by virtue of a notice under subsection
269TH(1) or (2) of the Customs Act, a special duty of Customs, to be
known as third country dumping duty calculated in accordance with
subsection (6).

**(3)** Pending final assessment of the third country dumping duty
payable on goods the subject of a notice under subsection 269TH(1) or
(2) of the Customs Act, an interim third country dumping duty is payable
on those goods.

**(4)** Subject to subsection (5), the interim third country dumping
duty payable on goods the subject of a notice under subsection 269TH (1)
or (2) of the Customs Act is an amount equal to the sum of:

\(a\) the difference between 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 so ascertained, or
last so ascertained; and

\(b\) if the export price of those particular goods is lower than the
export price of goods of that kind as ascertained, or last ascertained,
by the Minister for the purpose of the notice---the amount by which the
latter export price exceeds the former.

**(5)** The Minister must, by signed notice, direct that the element of
interim third country dumping duty referred to in paragraph (4)(a) in
respect of particular goods be ascertained:

\(a\) as a proportion of the export price of those particular goods or
of the export price of goods of that kind as ascertained, or last
ascertained, by the Minister for the purpose of the dumping duty notice,
whichever is the greater; or

\(b\) by reference to a measure of the quantity of those particular
goods; or

\(c\) by reference to a combination of a proportion of the kind referred
to in paragraph (a) and a measure of the quantity of those particular
goods;

and the notice has effect accordingly.

**(5A)** The Minister must, in exercising his or her powers under
subsection (5) in respect of particular goods the subject of a dumping
duty notice under subsection 269TH(1) or (2), if the non-injurious price
of goods of that kind as ascertained or last ascertained by the Minister
for the purposes of the notice is less than the normal value of goods of
that kind as so ascertained, or last so ascertained, have regard to the
desirability of fixing a lesser amount of duty such that the sum of:

\(a\) the export price of goods of that kind as so ascertained or last
so ascertained; and

\(b\) that lesser duty;

does not exceed that non-injurious price.

**(5B)** If the Minister signs a notice under subsection (5), the
Minister must cause a copy of that notice to be published in the
*Gazette* unless, in the opinion of the Minister, the publication of
that notice would adversely affect the business or commercial interests
of any person.

**(5C)** A notice under subsection (5) applies to goods entered for home
consumption on or after a day specified in the notice, which may be
earlier than the day of publication of the notice but may not be a day
on which an earlier notice under that subsection applied to the goods.

**(6)** The third country dumping duty payable on goods the subject of a
notice under subsection 269TH(1) or (2) of the Customs Act is an amount
equal to:

\(a\) unless paragraph (b) applies---the difference between the amounts
that the Minister ascertains to be the export price and the normal value
of those particular goods; or

\(b\) if, in a notice under subsection (5), the Minister determines that
the whole or a part of the interim third country dumping duty payable on
those particular goods is to be ascertained by reference to the
non-injurious price of goods of that kind as ascertained, or last
ascertained, by the Minister for the purpose of the first-mentioned
notice---the difference between:

\(i\) the amount that the Minister ascertains to be the export price of
those particular goods; and

\(ii\) the lower of the amount that the Minister ascertains to be the
normal value of those particular goods and that non-injurious price.

**(7)** The Minister may, by notice in writing, exempt goods from
interim third country dumping duty and third country dumping duty if he
is satisfied:

\(a\) that like or directly competitive goods are not offered or sold in
Australia to all purchasers on equal terms under like conditions having
regard to the custom and usage of trade; or

\(c\) that the goods, being articles of merchandise, are for use as
samples for the sale of similar goods.

**(8)** Where the Minister exempts goods from interim third country
dumping duty and third country dumping duty under subsection (7) by
reason of his being satisfied as to a matter specified under paragraph
(7)(a), the instrument of exemption shall be published in the *Gazette*.

**Countervailing duties**

**(1)** There is imposed, and there must be collected and paid, on goods
to which this subsection applies by virtue of a notice under subsection
269TJ(1) or (2) of the Customs Act a special duty of Customs, to be
known as countervailing duty.

**(2)** The countervailing duty on goods to which this section applies
is to be calculated in accordance with subsection (3E).

**(3)** Pending final assessment of the countervailing duty payable on
goods subject of a notice under subsection 269TJ(1) or (2) of the
Customs Act, an interim countervailing duty is payable on those goods.

**(3A)** Subject to subsection (3B), the interim countervailing duty
payable on goods the subject of a notice under subsection 269TJ(1) or
(2) of the Customs Act is an amount equal to the countervailable subsidy
in respect of goods of that kind as ascertained, or last ascertained, by
the Minister for the purpose of the notice.

**(3B)** The Minister must, by signed notice, direct that the interim
countervailing duty in respect of particular goods to which this section
applies by virtue of a declaration under subsection 269TJ(1) or (2) be
ascertained:

\(a\) as a proportion of the export price of those particular goods; or

\(b\) by reference to a measure of the quantity of those particular
goods; or

\(c\) by reference to a combination of a proportion of the export price
of those particular goods and a measure of the quantity of those
particular goods;

and the notice has effect accordingly.

**(3C)** The Minister must, in exercising his or her powers under
subsection (3B) in respect of particular goods the subject of a notice
under subsection 269TJ(1) or (2) of the Customs Act, if the
non-injurious price of goods of that kind as ascertained, or last
ascertained, by the Minister for the purpose of the notice is less than
the sum of:

\(a\) the countervailable subsidy in respect of goods of that kind as so
ascertained, or last so ascertained; and

\(b\) the export price of those particular goods;

have regard to the desirability of fixing a lesser amount of duty such
that the sum of the export price of those particular goods and the
lesser duty does not exceed that non-injurious price.

**(3D)** If, in the circumstances specified in section 269TJA of the
Customs Act, both a notice under section 269TJ of that Act and a notice
under section 269TG of that Act are published at the same time and in
respect of the same goods, the Minister must, in exercising his or her
powers under subsection (3B) in relation to interim countervailing duty
in respect of the goods, have regard to the desirability of fixing the
amount of interim countervailing duty in respect of the goods such that
the sum of:

\(a\) the export price of those particular goods; and

\(b\) the amount of the interim countervailing duty as so fixed; and

\(c\) the amount of interim dumping duty as fixed under section 8;

does not exceed the non-injurious price of goods of that kind, as
ascertained, or last ascertained, by the Minister for the purpose of
those notices.

**(3E)** The countervailing duty payable on goods the subject of a
notice under subsection 269TJ(1) or (2) of the Customs Act is an amount
equal to:

\(a\) unless paragraph (b) applies---the countervailable subsidy in
respect of those particular goods; or

\(b\) if, in a notice under subsection (3B), the Minister determines
that the interim countervailing duty payable on those particular goods
is to be ascertained by reference to the non-injurious price of goods of
that kind---the difference between:

\(i\) the amount that the Minister ascertains to be the export price of
those particular goods; and

\(ii\) the lower of the sum of the amounts that the Minister ascertains
to be the export price of, and the countervailable subsidy in respect
of, those particular goods and the non-injurious price of goods of that
kind as ascertained, or last ascertained, by the Minister for the
purpose of the notice under subsection 269TJ(1) or (2).

**(5B)** Where the Minister signs a notice under subsection (3B) the
Minister shall cause a copy of that notice to be published in the
*Gazette* unless in the opinion of the Minister, the publication of that
notice would adversely affect the business or commercial interests of
any person**.**

**(6)** A notice under subsection (3B) applies to goods entered for home
consumption on or after a day specified in the notice, which may be
earlier than the day of publication of the notice but may not be a day
on which an earlier notice under that subsection applied to the goods.

**(8)** The Minister may, by notice in writing, exempt goods from
interim countervailing duty or countervailing duty if he or she is
satisfied:

\(a\) that like or directly competitive goods are not offered for sale
in Australia to all purchasers on equal terms under like conditions
having regard to the custom and usage of trade;

(aa) that a Tariff Concession Order under Part XVA of the *Customs Act
1901* in respect of the goods is in force;

\(b\) that -

\(i\) where the goods are goods to which section 11 of the *Customs
Tariff Act 1987* applies---the item in Schedule 4 to that Act that
applies to the goods is expressed to apply to goods, or to a class or
kind of goods, as prescribed by by-law; and

\(ii\) suitably equivalent goods the produce or manufacture of Australia
are not reasonably available;

\(c\) that:

\(i\) the tariff classification in Schedule 3 to that Act that applies
to the goods is such that no duty is payable in respect of the goods or
the duty payable in respect of the goods is at a rate equivalent to a
rate payable under Schedule 4 on the goods; and

\(ii\) suitably equivalent goods the produce or manufacture of Australia
are not reasonably available; or

\(d\) that the goods, being articles of merchandise, are for use as
samples for the sale of similar goods.

**(9)** Where the Minister exempts goods from interim countervailing
duty or countervailing duty under subsection (8) because he or she is
satisfied as to a matter specified in paragraphs (8)(a), (b) and (c),
the instrument of exemption shall be published in the *Gazette*.

**(10)** In this section, a reference to a Tariff Concession Order
includes a reference to a Commercial Tariff Concession Order made under
Part XVA of the Customs Act as in force before section 10 of the
*Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act
1992* commences.

**Third country countervailing duties**

**(1)** There is imposed, and there must be collected and paid, on goods
to which this subsection applies by virtue of a notice under subsection
269TK(1) or (2) of the Customs Act a special duty of Customs, to be
known as third country countervailing duty, calculated in accordance
with subsection (7).

**(2)** Pending final assessment of the third country countervailing
duty payable on goods the subject of a notice under subsection 269TK(1)
or (2) of the Customs Act, an interim third country countervailing duty
is payable on those goods.

**(3)** Subject to subsection (4), the interim third country
countervailing duty payable on goods the subject of a notice under
subsection 269TK(1) or (2) of the Customs Act is an amount equal to the
countervailable subsidy in respect of goods of that kind as ascertained,
or last ascertained, by the Minister for the purpose of the notice.

**(4)** The Minister must, by signed notice, direct that the interim
countervailing duty in respect of particular goods to which this section
applies by virtue of a notice under subsection 269TK(1) or (2) be
ascertained:

\(a\) as a proportion of the export price of those particular goods; or

\(b\) by reference to a measure of the quantity of those particular
goods; or

\(c\) by reference to a combination of a proportion of the export price
of those particular goods and a measure of the quantity of those
particular goods;

and the notice has effect accordingly.

**(5)** The Minister must, in exercising his or her powers under
subsection (4) in respect of particular goods the subject of a notice
under subsection 269TK(1) or (2) of the Customs Act, if the
non-injurious price of goods of that kind as ascertained, or last
ascertained, by the Minister for the purpose of the notice is less than
the sum of:

\(a\) the countervailable subsidy as so ascertained, or last so
ascertained; and

\(b\) the export price of those particular goods;

have regard to the desirability of fixing a lesser amount of duty such
that the sum of the export price of those particular goods and the
lesser duty does not exceed that non-injurious price.

**(6)** If the Minister signs a notice under subsection (4), the
Minister must cause a copy of that notice to be published in the
*Gazette* unless, in the opinion of the Minister, the publication of
that notice would adversely affect the business or commercial interests
of any person.

**(7)** The third country countervailing duty payable on goods the
subject of a notice under subsection 269TK(1) or (2) of the Customs Act
is an amount equal to:

\(a\) unless paragraph (b) applies---the countervailable subsidy in
respect of those particular goods; or

\(b\) if, in a notice under subsection (4), the Minister determines that
the interim countervailing duty payable on those particular goods is to
be ascertained by reference to the non-injurious price of goods of that
kind---the difference between:

\(i\) the amount that the Minister ascertains to be the export price of
those particular goods; and

\(ii\) the lower of the sum of the amounts that the Minister ascertains
to be the export price of, and the countervailable subsidy in respect
of, those particular goods and the non-injurious price of goods of that
kind as ascertained, or last ascertained, by the Minister for the
purpose of the notice under subsection 269TK(1) or (2).

**(7A)** A notice under subsection (4) applies to goods entered for home
consumption on or after a day specified in the notice, which may be
earlier than the day of publication of the notice but may not be a day
on which an earlier notice under that subsection applied to the goods.

**(7B)** If the Minister has determined, under subsection 269TK(3) of
the Customs Act, the amount of any countervailable subsidy in respect of
goods to which this section applies by virtue of a notice under
subsection 269TK(1) or (2) of that Act, that amount is to be taken to be
the amount of that countervailable subsidy for the purposes of this
section.

**(8)** The Minister may, by notice in writing, exempt goods from
interim third country countervailing duties and third country
countervailing duty if he or she is satisfied:

\(a\) that like or directly competitive goods are not offered or sold in
Australia to all purchasers on equal terms under like conditions having
regard to the custom and usage of trade; or

\(b\) that the goods, being articles of merchandise, are for use as
samples for the sale of similar goods.

**(9)** Where the Minister exempts goods from interim third country
countervailing duties and third country countervailing duty under
subsection (8) because he or she is satisfied as to a matter specified
under paragraph (8)(a), the instrument of exemption shall be published
in the *Gazette*.

**Interim duty not to exceed security taken**

If:

\(a\) a security has been taken under section 42 of the *Customs Act
1901* in respect of interim duty that may become payable under section
8, 9, 10 or 11 of this Act in respect of goods imported into Australia;
and

\(b\) the amount of interim duty that would be so payable under section
8, 9, 10 or 11 of this Act would, but for the operation of this section,
exceed the amount of the security taken;

the interim duty payable is equal to the amount of security taken.

**Duties to be charged separately**

The several duties imposed by this Act shall be separately charged,
notwithstanding that more than one duty applies to any particular goods.

**Special duties to be additional to ordinary duties**

The special duties of Customs payable under this Act are in addition to
such other duties of Customs (if any) as are payable under any other
Act.

  -----------------------------------------------------------------------

  -----------------------------------------------------------------------

**[Superseded Sections]{.underline}**

Sections 8 and 10 of the Customs Tariff (Anti-Dumping) Act 1975
operative pre 1 January 1993. Under transitional arrangements applying
to the introduction of interim dumping/countervailing duty provisions on
1 January 1993, measures in place prior to that date remain in force
under the legislation applying at that time. Sections 8 and 10 as
operative pre 1 January 1993 are recorded below for purposes of
reference.

**Dumping Duties**

**(1)** This section does not apply to goods that are:

\(a\) the produce or manufacture of New Zealand; and

\(b\) imported into Australia after the commencement of this subsection.

**(3)** There shall be charged, collected and paid on goods to which
this section applies, by virtue of a declaration under subsection 269TG
(1) or (2) of the Customs Act, a special duty of Customs, to be known as
dumping duty.

**(4)** Subject to subsection (5), the dumping duty in respect of goods
is a sum equal to the amount by which the amount of the export price of
the goods is less than the amount of the normal value of the goods.

**(5)** The Minister may, by notice in writing signed by the Minister,
direct that the dumping duty in respect of goods is an amount to be
ascertained by reference to the value, or to the weight or other measure
of quantity, of the goods less the amount, if any, by which that amount
exceeds the dumping duty that would be payable in respect of the goods
under subsection (4), and the notice has effect accordingly.

**(5A)** In exercising his or her powers under subsection (5) in
relation to dumping duty in respect of goods, the Minister shall have
regard to the desirability of ensuring that the amount of dumping duty
in respect of those goods is not greater than is necessary to prevent
the injury or a recurrence of the injury, or to remove the hindrance,
referred to in paragraph 269TG (1)(b) or (2)(b) of the Customs Act, as
the case requires.

**(5AA)** If, in the circumstances specified in section 269TJA of the
Customs Act, both a notice under section 269TG of that Act and a notice
under section 269TJ of that Act are published, at the same time and in
respect of the same goods, the Minister must, in exercising his or her
power under subsection (5) in relation to dumping duty in respect of the
goods, have regard to the desirability of ensuring that the amount of
dumping duty in respect of the goods, when aggregated with the amount of
countervailing duty in respect of the goods, is not greater than is
necessary to prevent the injury or a recurrence of the injury, or to
remove the hindrance referred to in paragraphs 269TG(1)(b) and
269TJ(1)(b) or in paragraphs 269TG(2)(b) and 269TJ(2)(b), as the case
requires.

**(5B)** Where the Minister signs a notice under subsection (5), the
Minister shall cause a copy of that notice to published in the *Gazette*
unless in the opinion of the Minister, the publication of that notice
would adversely affect the business or commercial interests of any
person.

**(6)** A notice under subsection (5) applies to goods entered for home
consumption on or after a date specified in the notice, which may be a
date earlier than the date of publication of the notice but shall not be
a date on or before a date on which an earlier notice under that
subsection applied to the goods.

**(7)** The Minister may, by notice in writing, exempt goods from
dumping duty if he is satisfied:

\(a\) that like or directly competitive goods are not offered for sale
in Australia to all purchasers on equal terms under like conditions
having regard to the custom and usage of trade;

\(b\) that a Tariff Concession Order under Part XVA of the *Customs Act
1901* in respect of the goods is in force;

\(c\) that:

\(i\) where the goods are goods to which section 11 of the *Customs
Tariff Act 1987* applies---the item in Schedule 4 to that Act that
applies to the goods is expressed to apply to goods, or to a class or
kind of goods, as prescribed by by-law; and

\(ii\) suitably equivalent goods the produce or manufacture of Australia
are not reasonably available;

\(d\) that:

\(i\) the tariff classification in Schedule 3 to that Act that applies
to the goods is such that no duty is payable in respect of the goods or
the duty payable in respect of the goods is at a rate equivalent to a
rate payable under Schedule 4 on the goods; and

\(ii\) suitably equivalent goods the produce or manufacture of Australia
are not reasonably available; or

\(e\) that the goods, being articles of merchandise, are for use as
samples for the sale of similar goods.

**(8)** Where the Minister exempts goods from the dumping duty under
subsection (7) by reason of his being satisfied as to a matter specified
in paragraph (7)(a), (c) or (d), the instrument of exemption shall be
published in the *Gazette*.

**(9)** In this section, a reference to a Tariff Concession Order
includes a reference to a Commercial Tariff Concession Order made under
Part XVA of the Customs Act as in force before section 10 of the
*Customs Legislation (Tariff Concession and Anti-Dumping) Amendment Act
1992* commences.

**10. Countervailing duties**

**(3)** There shall be charged, collected and paid on goods to which
this section applies, by virtue of a declaration under subsection
269TJ(1), (2), (4), (5) or (6) of the Customs Act, a special duty of
Customs, to be known as countervailing duty.

**(4)** Subject to subsection (5), the countervailing duty in respect of
goods is:

\(a\) in the case of countervailing duty in respect of goods to which
this section applies by virtue of a declaration under subsection
269TJ(1), (2) or (4) of the Customs Act---a sum equal to the amount of
the subsidy, bounty, reduction or remission of freight or other
financial assistance that has been paid or granted, directly or
indirectly, upon the production, manufacture, carriage or export of the
goods; or

\(b\) in the case of countervailing duty in respect of goods to which
this section applies by virtue of a declaration under subsection
269TJ(5) or (6) or the Customs Act, a sum equal to:

\(i\) if the prescribed assistance that has been paid or granted,
directly or indirectly, in relation to the goods was financial
assistance---the amount of that financial assistance; or

\(ii\) if the prescribed assistance that been granted, directly or
indirectly, in relation to the goods was not financial assistance,
whichever of the following is determined by the Minister to be
appropriate:

\(A\) the cost of granting that assistance;

\(B\) the value of that assistance to the person to whom it was granted.

**(5)** The Minister may, by notice in writing signed by the Minister,
direct that the countervailing duty in respect of goods is an amount to
be ascertained by reference to the value, or to the weight or other
measure of quantity, of the goods less the amount, if any, by which that
amount exceeds the countervailing duty that would be payable in respect
of the goods under subsection (4), and the notice has effect
accordingly.

**(5A)** In exercising his or her powers under subsection (5) in
relation to countervailing duty in respect of goods to which this
section applies by virtue of subsection 269TJ(1) or (2) of the Customs
Act, the Minister shall have regard to the desirability of ensuring that
the amount of countervailing duty in respect of those goods is not
greater than is necessary to prevent the injury or a recurrence of the
injury, or to remove the hindrance, referred to in paragraph 269TJ(1)(b)
or (2)(b) of that Act, as the case requires.

**(5AA)** If, in the circumstances specified in section 269TJA of the
Customs Act, both a notice under section 269TJ of that Act and a notice
under section 269TG of that Act are published at the same time and in
respect of the same goods, the Minister must, in exercising his powers
under subsection (5) in relation to countervailing duty in respect of
the goods, have regard to the desirability of ensuring that the amount
of countervailing duty in respect of the goods, when aggregated with the
amount of dumping duty in respect of the goods, is not greater than is
necessary to prevent the injury or a recurrence of the injury, or to
remove the hindrance referred to in paragraphs 269TG(1)(b) and
269TJ(1)(b) or in paragraphs 269TG(2)(b) and 269TJ(2)(b), as the case
requires.

**(5B)** Where the Minister signs a notice under subsection (5), the
Minister shall cause a copy of that notice to be published in the
*Gazette* unless in the opinion of the Minister, the publication of that
notice would adversely affect the business or commercial interests of
any person.

**(6)** A notice under subsection (5) applies to goods entered for home
consumption after a date specified in the notice, which may be a date
earlier than the date of publication of the notice but shall not be a
date on or before a date on which an earlier notice under that
subsection applied to the goods.

**(7)** Where the Minister has determined, under subsection 269TJ(8) of
the Customs Act, the amount of any subsidy, bounty, reduction or
remission of freight or other financial assistance in relation to goods
to which this section applies by virtue of a declaration under
subsection 269TJ(1), (2) or (4) of that Act, that amount is to be taken
to be the amount of that subsidy, bounty, reduction or remission of
freight or other financial assistance in relation to those goods for the
purposes of this section.

**(7A)** Where the Minister has determined, under subsection 269TJ(9) of
the Customs Act, the amount, cost or value of prescribed assistance in
relation to goods to which this section applies by virtue of a notice
under subsection 269TJ(5) or (6) of that Act, that amount, cost or value
is to be taken to be the amount, cost or value of that prescribed
assistance in relation to those goods for the purposes of this section.

**(8)** The Minister may, by notice in writing, exempt goods from
countervailing duty if he or she is satisfied:

\(a\) that like or directly competitive goods are not offered for sale
in Australia to all purchasers on equal terms under like conditions
having regard to the custom and usage of trade;

(aa) that a Tariff Concession Order under Part XVA of the *Customs Act
1901* in respect of the goods is in force;

\(b\) that:

\(i\) where the goods are goods to which section 11 of the *Customs
Tariff Act 1987* applies---the item in Schedule 4 to that Act that
applies to the goods is expressed to apply to goods, or to a class or
kind or goods, as prescribed by by-law; and

\(ii\) suitably equivalent goods the produce or manufacture of Australia
are not reasonably available;

\(c\) that:

\(i\) the tariff classification in Schedule 3 to that Act that applies
to the goods is such that no duty is payable in respect of the goods or
the duty payable in respect of the goods is at a rate equivalent to a
rate payable under Schedule 4 on the goods; and

\(ii\) suitably equivalent goods the produce or manufacture of Australia
are not reasonably available; or

\(d\) that the goods, being articles of merchandise, are for use as
samples for the sale of similar goods.

**(9)** Where the Minister exempts goods from countervailing duty under
subsection (8) because he or she is satisfied as to a matter specified
in paragraphs (8)(a), (b) and (c), the instrument of exemption shall be
published in the *Gazette*.

**(10)** In this section, a reference to a Tariff Concession Order
includes a reference to a Commercial Tariff Concession Order made under
Part XVA of the Customs Act as in force before section 10 of the
***Customs legislation (Tariff Concessions and Anti-Dumping) Amendment
Act 1992*** commences**.**

***Customs Act 1901***

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

An Act relating to the Customs

#### **1** **Short Title**

This Act may be cited as the *Customs Act 1901.*

**4.** **Interpretation**

**(1)** In this Act except where otherwise clearly intended:

\"unmanufactured raw products\" means natural or primary products that
have not been subjected to an industrial process, other than an ordinary
process of primary production, and, without limiting the generality of
the foregoing, includes:

> \(a\) animals;
>
> \(b\) bones, hides, skins and other parts of animals obtained by
> killing, including such hides and skins that have been sun-dried;
>
> \(c\) greasy wool;
>
> \(d\) plants and parts of plants, including raw cotton, bark, fruit,
> nuts, grain, seeds in their natural state and unwrought logs;
>
> \(e\) minerals in their natural state and ores; and
>
> \(f\) crude petroleum.

#### **4A.** **Approved forms and approved statements**

**(1)** In this Act, a reference to an approved form is a reference to a
form that is approved, by instrument in writing, by the CEO.

**(1A)** In this Act, a reference to an approved statement is a
reference to a statement that is approved, by instrument in writing, by
the CEO.

**(2)** The instrument by which a form or statement is approved under
subsection (1) after this section commences is a disallowable instrument
for the purposes of section 46A of the *Acts Interpretation Act 1901*.

#### **9.** **Delegation**

**(1)** The Minister may, by signed instrument, delegate to an officer
of Customs all or any of the functions and powers of the Minister under
the Customs Acts.

**(2)** A function or power so delegated, when performed or exercised by
the delegate, shall, for the purposes of the Customs Acts, be deemed to
have been performed or exercised by the Minister.

**(3)** Paragraph 34AB(c) of the *Acts Interpretation Act 1901* does not
apply to a delegation under subsection (1).

**(4)** Despite subsection (1), the power of the Minister to delegate
the Minister\'s powers and functions under the Customs Acts does not
extend to a power or function conferred by subsection 269TG(1) or (2),
269TH(1) or (2), 269TJ(1), (2), (4), (5) or (6) or 269TK(1) or (2) of
this Act or by subsection 8(5), 9(5), 10(3B), 10(5) or 11(4) of the
Dumping Duty Act.

#### **42.** **Right to require security**

**(1)** The Customs shall have the right to require and take securities
for compliance with this Act, for compliance with conditions or
requirements to which the importation or exportation of goods is subject
and generally for the protection of the revenue of the Customs, and
pending the giving of the required security in relation to any goods
subject to the control of the Customs may refuse to deliver the goods or
to give any authority under section 71B to deal with the goods.

**(1A)** The right of the Customs under subsection (1) to require and
take a security includes the right to require and take securities for
payment of any penalty that a person may become liable to pay to the
Commonwealth under the *Customs Undertakings (Penalties) Act 1981*.

**(1B)** The right of the Customs under subsection (1) to require and
take a security includes the right to require and take securities in
respect of any interim duty that may be payable on goods under the
*Customs Tariff (Anti-Dumping) Act 1975* but no such security shall be
required or taken under this Act:

> \(a\) on an application under section 269TB of this Act in respect of
> the goods to which the application relates before the time at which
> the CEO has made a preliminary affirmative determination, within the
> meaning of Part XVB, in respect of those goods; or
>
> \(b\) on like goods imported into Australia before that time.

**(1C)** If:

> \(a\) an undertaking is given and accepted under subsection 269TG(4)
> or 269TJ(3) in respect of goods; and
>
> \(b\) the undertaking is subsequently breached;

the Customs may require and take securities in respect of any interim
duty that may be payable under the *Customs Tariff (Anti-Dumping) Act
1975* on the goods or on like goods imported into Australia.

**(1D)** The right of the Customs under subsection (1) to require and
take a security includes the right to require and take a security in
respect of any interim duty that may be payable under the *Customs
Tariff (Anti-Dumping) Act 1975* on goods the subject of an application
under subsection 269ZE(1) of this Act.

**(2)** The right of the Customs under subsection (1) to require and
take securities includes the right to require and take a security for a
purpose or purposes for which security may be taken under that
subsection and for a purpose or purposes for which security may be taken
under section 16 of the *Excise Act 1901-1957* and the succeeding
provisions of the Part apply to an in relation to such a security in the
same manner as they apply to and in relation to any other security
required and taken under subsection (1).

**(3)** The rights of the Customs under this section may be exercised by
a Collector on behalf of the Customs.

#### **43.** **Form of Security**

A security shall be given in a manner and form approved by a Collector
and may, subject to that approval, be by bond, guarantee, cash deposit
or any other method, or by two or more different methods.

**44.** **General bonds may be given**

When security is required for any particular purpose security may by the
authority of the CEO be accepted to cover all transactions for such time
and for such amounts as the CEO may approve.

#### **45.** **Cancellation of bonds**

**(1)** All Customs securities may after the expiration of 3 years from
the date thereof or from the time specified for the performance of the
conditions thereof be cancelled by the CEO.

**(2)** A security taken in respect of any interim duty that may become
payable on goods under section 8, 9, 10 or 11 of the *Customs Tariff
(Anti-Dumping) Act 1975*, being a security taken before the publication
by the Minister of a notice declaring that section to apply to those
goods, shall be cancelled before the expiration of the prescribed period
after the date the security is taken.

**(3)** In subsection (2), \"prescribed period\" means:

> \(a\) in relation to a security in respect of any interim duty that
> may be payable on goods under section 8 or 9 of the *Customs Tariff
> (Anti-Dumping) Act 1975*---a period of 6 months or such longer period
> (not being a period exceeding 9 months) as is requested by the
> exporter of the goods concerned; or
>
> \(b\) in any other case---a period of 4 months.

**(4)** Where:

> \(a\) a notice is published by the Minister declaring section 8, 9, 10
> or 11 of the *Customs Tariff (Anti-Dumping) Act 1975* to apply to
> goods of a particular kind that may be imported into Australia;
>
> \(b\) goods of that kind are imported while that notice is in force;
> and
>
> \(c\) security is taken after the importation of those goods in
> relation to the interim duty that may be payable in respect of them;

subsection (2) does not apply in relation to that security.

#### **214B** **Powers of officers for purposes of Customs Tariff (Anti-Dumping) Act 1975**

**(1)** For the purposes of the *Customs Tariff (Anti-Dumping) Act 1975*
an authorized officer may, at all reasonable times, enter premises where
there are kept any accounts, books or other records relating to goods
exported to Australia or manufactured or produced or sold, in Australia
and may inspect any such accounts, books, documents or other records and
make and retain copies of, or take and retain extracts from, any such
accounts, books, documents or other records.

**(2)** Where an authorized officer proposes to enter any premises under
subsection (1), he shall, if requested to do so by the occupier or
person in charge of the premises, produce for inspection written
evidence of the fact that he is an authorized officer and, if he fails
to do so, he is not authorized to enter the premises.

**(3)** The occupier or person in charge of premises referred to in
subsection (1) shall provide the authorized officer with all reasonable
facilities and assistance for the effective exercise of his powers under
subsection (1).

Penalty: \$1,000.

**(4)** An authorized officer may, by notice signed by him, require a
person whom he believes to be capable of giving information that is
relevant to the operation of the *Customs Tariff (Anti-Dumping) Act
1975* and relates to goods exported to Australia or manufactured or
produced, or sold, in Australia to attend before him at the time and
place specified in the notice and there to answer questions and produce
to him such accounts, books, documents or other records in relation to
goods exported to Australia or manufactured or produced, or sold, in
Australia as are referred to in the notice.

**(5)** An authorized officer may make and retain copies of, or take and
retain extracts from, any accounts, books, documents or other records
produced in pursuance of subsection (4).

**(6)** A person is not excused from answering a question or producing
any accounts, books, documents or other records, when required to do so
under subsection (4) on the grounds that the answer to the question, or
the production of the accounts, books, documents, or other records,
might tend to incriminate him or make him liable to a penalty, but his
answer to any such question or the production by him of any such
accounts, books, documents or other records is not admissible in
evidence against him in proceedings other than proceedings for an
offence against this section or proceedings in respect of the falsity of
any such answer.

**(7)** An authorized officer may examine, on oath or affirmation, a
person attending before him in pursuance of subsection (4) and, for that
purpose, may administer an oath or affirmation to that person.

**(8)** The oath or affirmation to be made by a person for the purposes
of subsection (7) is an oath or affirmation that the answers he will
give to questions asked him will be true.

**(9)** A person shall not, without reasonable excuse, refuse or fail:

> \(a\) to attend before an authorized officer;
>
> \(b\) to make an oath or an affirmation; or
>
> \(c\) to answer a question or produce an account, book, document or
> other record;

when so required in pursuance of this section.

Penalty: \$1,000.

### PART XVB---SPECIAL PROVISIONS RELATING TO ANTI-DUMPING DUTIES

#### **269SM** **Overview of Part**

> \(1\) This Part deals with the taking of anti-dumping measures in
> respect of goods whose importation into Australia involves a dumping
> or countervailable subsidisation of those goods that injures, or
> threatens to injure Australian industry. Those measures might consist
> of the publication of a dumping duty notice or a countervailing duty
> notice or the acceptance of an undertaking on conditions that make it
> unnecessary to publish such a notice.
>
> \(2\) If a notice is published, that notice creates a liability under
> the Dumping Duty Act, in relation to any goods to which the notice
> extends, to pay a special duty of customs on their importation into
> Australia and, pending assessment of that special duty, to pay interim
> duty.
>
> \(3\) Divisions 1, 2 and 3 deal with the preliminary and procedural
> matters leading to a Ministerial decision to publish or not to publish
> a dumping duty notice or a countervailing duty notice or to accept an
> undertaking instead of publishing such a notice.
>
> \(4\) Division 4 allows a person who has been required to pay interim
> duty to seek an assessment of duty payable under the Dumping Duty Act
> and reconciles interim duty paid by that person with duty as so
> assessed.
>
> \(5\) Division 5 deals with the rights of persons, periodically, on
> the basis of changed circumstances, to seek review by the Minister of
> decisions to publish dumping duty notices or countervailing duty
> notices or to accept undertakings.
>
> \(6\) Division 6 deals with the rights of new exporters and exporters
> not previously investigated to seek an early review by the Minister of
> decisions to publish dumping duty notices or countervailing duty
> notices.
>
> \(7\) Division 6A ensures that interested parties are informed of the
> impending expiration of anti-dumping measures and allows them to seek
> continuation of those measures.
>
> \(8\) Division 7 deals with procedural and evidentiary matters that
> are relevant both to applications for the taking of anti-dumping
> measures and for the various review procedures after such measures are
> taken.
>
> \(9\) Division 8 and 9 establish an independent reviewer, the Trade
> Measures Review Officer, and provide for the Review Officer to review
> Ministerial decisions to publish or not to publish dumping duty
> notices or countervailing duty notices and also a range of decisions
> made by the CEO.

## ***Division 1---Preliminary***

#### **269SN** What this Division is about

+-----------------------------------------------------------------------+
| The Division deals with preliminary matters. The Division             |
| principally:                                                          |
|                                                                       |
| -   sets out essential definitions and interpretations;               |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   provides the basis for determining various factors (such as       |
|     normal value, export price and non-injurious price) necessary to  |
|     decide whether dumping or countervailable subsidisation has       |
|     occurred;                                                         |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   sets out the criteria for the use of those factors in so          |
|     deciding;                                                         |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   provides the basis for determining whether dumping or             |
|     subsidisation is causing material injury to Australia industry;   |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   identifies circumstances in which the Part does not apply;        |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   empowers the Minister to direct the CEO in relation to the CEO\'s |
|     powers and duties                                                 |
+-----------------------------------------------------------------------+

#### 

#### **269T** **Interpretation**

**(1)** In this Part, unless the contrary intention appears:

**\"affected party\"**, in relation to an application under Division 5
for review of anti dumping measures imposed on particular goods, means:

\(a\) a person who is directly concerned with the exportation to
Australia of the goods to which the measures relate or who has been
directly concerned with the exportation to Australia of like goods; or

\(b\) a person who is directly concerned with the importation into
Australia of the goods to which the a person who is directly concerned
with the exportation to Australia of the goods to which the measures
relate or who has been directly concerned with the importation into
Australia of like goods; or

\(c\) a person representing, or representing a portion of, the
Australian industry producing like goods; or

\(d\) the Government of a country from which like goods have been
exported to Australia;

**\"Agreement on Agriculture\"** means the Agreement by that name:

\(a\) set out in Annex 1A to the World Trade Organization Agreement; and

\(b\) as in force on the day on which the World Trade Organization
Agreement enters into force for Australia**;**

**\"Agreement on Subsidies and Countervailing Measures\"** means the
Agreement by that name:

\(a\) set out in Annex 1A to the World Trade Organization Agreement; and

\(b\) as in force on the day on which the World Trade Organization
Agreement enters into force for Australia**;**

**\"agricultural operations**\" means:

\(a\) the cultivation or gathering in of crops; or

(b)the rearing of live-stock; or

\(c\) the conduct of forestry operations;

and includes:

\(d\) viticulture, horticulture or apiculture; or

\(e\) hunting or trapping carried on for the purpose of a business;

**\"allowable exemption or remission\", in relation to exported goods,**
means:

\(a\) the exemption of those goods from duties or taxes borne by like
goods destined for domestic consumption; or

\(b\) the remission of such duties or taxes otherwise payable in respect
of those goods;

in accordance with the provisions of Article XVI of the General
Agreement on Tariffs and Trade 1994 and the provisions of Annexes I, II
and III of the Agreement on Subsidies and Countervailing Measures;

**"anti-dumping measures, in respect of goods, means:**

\(a\) the publication of a dumping duty notice or a countervailing duty
notice or both; or

\(b\) the acceptance of an undertaking under section 269TG or 269TJ or
of undertakings under both of these sections;

in relation to such goods.

**\"application\",** in relation to a dumping duty notice or a
countervailing duty notice, means an application for the publication of
such a notice;

**\"countervailable subsidy\"** means a subsidy that is, for the
purposes of section 269TAAC, a countervailable subsidy;

**\"countervailing duty\"** means duty, other than interim
countervailing duty:

\(a\) that is payable on goods under section 10 of the Dumping Duty Act
because of a declaration under subsection 269TJ(1) or (2) of this Act;
or

\(b\) that is payable on goods under section 11 of the Dumping Duty Act;

**\"countervailing duty notice\"** means a notice published by the
Minister under subsection 269TJ(1) or (2) or 269TK(1) or (2);

**\"country of export\", in relation to goods exported to Australia,**
means a country outside Australia from which those goods are exported to
Australia, whether or not it is the country where those goods are
produced or manufactured;

**\"country of origin\", in relation to goods exported to Australia,**
means a country, whether the country of export or not, where those goods
are produced or manufactured;

**\"determination\"** means a determination in writing;

**\"direction\"** means a direction in writing;

**\"dumped goods\"** means any goods exported to Australia that the
Minister has determined, under section 269TACB, have been dumped;

**\"dumping duty\"** means duty, other than interim dumping duty, that
is payable on goods under section 8 or 9 of the Dumping Duty Act;

**"Dumping Duty Act"** means the *Customs Tariff (Anti-Dumping) Act
1975*

**\"dumping duty notice\"** means a notice published by the Minister
under subsection 269TG(1) or (2) or 269TH(1) or (2);

**\"fish\"** means freshwater or salt-water fish, and includes turtles,
dugong, crustacea, molluscs or any other living resources of the sea or
of the sea-bed;

**\"fishing operations\"** means:

\(a\) the taking, catching or capturing of fish; or

\(b\) the farming of fish; or

\(c\) pearling operations;

**\"forestry operations\"** means the felling, in a forest or
plantation, of standing timber;

**\"General Agreement of Tariffs and Trade 1994\"** means the Agreement
by that name:

\(a\) whose parts are described in Annex 1A to the World Trade
Organization Agreement; and

\(b\) as in force on the day on which the World Trade Organization
Agreement enters into force for Australia**;**

**\"importation period\"**, in relation to goods that have been the
subject of a dumping duty notice or a countervailing duty notice means:

\(a\) in respect of goods covered by a retrospective notice---the period
beginning on the day of entry for home consumption of the first
consignment of goods to which the retrospective notice applied and
ending immediately before the day of publication of the notice; and

\(b\) in respect of goods covered by a prospective notice:

\(i\) the period of 6 months beginning on the day of publication of the
prospective notice; and

\(ii\) each successive period of 6 months;

**\"importer\"**, in relation to goods exported to Australia, means:

\(a\) if paragraph (b) or (d) does not apply---the beneficial owner of
the goods at the time of their arrival within the limits of the port or
airport in Australia at which they have landed; or

\(b\) if the goods are taken from parts beyond the seas to an Australian
resources installation or if they are goods on board an overseas
resources installation at the time when it is attached to the Australian
seabed---the beneficial owner of the goods at the time when they are
imported into Australia; or

\(c\) if the goods are an overseas resources installation that becomes
attached to the Australian seabed---the beneficial owner of the
installation at the time when it is imported into Australia; or

\(d\) if the goods are taken from parts beyond the seas to an Australian
sea installation or are goods on board an overseas sea installation at
the time when it is installed in an adjacent area or a coastal
area---the beneficial owner of the goods at the time when they are
imported into Australia; or

\(e\) if the goods are an overseas sea installation that becomes
installed in an adjacent area or in a coastal area - the beneficial
owner of the installation at the time when it is imported into
Australia;

**\"interested party\"**, in relation to an application made to the CEO
under section 269TB requesting that the Minister publish a dumping duty
notice or a countervailing duty notice in respect of the goods the
subject of the application, means:

\(a\) the applicant;

\(b\) a person representing, or representing a portion of, the industry
producing, or likely to be established to produce, like goods;

\(c\) any person who is or is likely to be directly concerned with the
importation or exportation into Australia of the goods the subject of
the application or who has been or is likely to be directly concerned
with the importation or exportation into Australia of like goods; and

\(d\) any person who is or is likely to be directly concerned with the
production or manufacture of the goods the subject of the application or
of like goods that have been, or are likely to be, exported to
Australia; and

\(e\) a trade organisation a majority of whose members are, or are
likely to be, directly concerned with the production or manufacture of
the goods the subject of the application or of like goods, with their
importation or exportation into Australia, or with both of those
activities; and

\(f\) the Government of the country of export or country of origin:

\(i\) of goods the subject of the application that have been, or are
likely to be, exported to Australia; or

\(ii\) of like goods that have been, or are likely to be, exported to
Australia;

**\"interim countervailing duty\"** means duty imposed under subsection
10(3B) or 11(4) of the Dumping Duty Act;

**\"interim dumping duty\"** means duty imposed under subsection 8(5)
and, where applicable, paragraph 8(4)(b) of the Dumping Duty Act or
under subsection 9(5) and, where applicable, paragraph 9(4)(b) of that
Act;

**\"interim duty\"** means interim dumping duty or interim
countervailing duty;

**\"investigation period\", in relation to an application for a dumping
duty notice or a countervailing duty notice in respect of goods,** means
a period specified by the CEO in a notice under subsection 269TC(4) to
be the investigation period in relation to the application;

**\"like goods\"**, in relation to goods under consideration, means
goods that are identical in all respects to the goods under
consideration or that, although not alike in all respects to the goods
under consideration, have characteristics closely resembling those of
the goods under consideration;

**\"member country\"** means a country that is, in its own right, a
member of the World Trade Organization established by the World Trade
Organization Agreement;

**\"negative preliminary decision\"** means a decision of the kind
referred to in paragraph 269X(6)(b) or (c);

**\"new exporter\", in relation to goods the subject of an application
for a dumping duty notice or a countervailing duty notice or like
goods,** means an exporter who did not export such goods to Australia at
any time during

the period:

\(a\) starting at the start of the investigation period in relation to
the application; and

\(b\) ending immediately before the day the CEO places on the public
record the statement of essential facts in relation to the investigation
of the application.

**\"positive preliminary decision\"** means a decision of the kind
referred in paragraph 269X(6)(a);

**"preliminary affirmative determination**" means a determination made
under section 269TD;

**\"production cost\"**, in relation to processed agricultural goods,
means the sum of the direct labour costs, the direct material costs and
the factory overhead costs incurred in relation to those goods;

**\"prospective notice\"** means a notice issued under subsection
269TG(2), 269TH(2), 269TJ(2) or 269TK(2);

**"public notice",** in relation to a decision, determination or other
matter, means notice of the decision, determination or other matter
published in accordance with section 269ZI**;**

**"public record"** means the public record maintained under section
269ZJ;

**\"raw agricultural goods\"** means goods directly obtained by the
undertaking of any agricultural operation or any fishing operation;

**\"residual exporter\", in relation to a dumping duty notice or a
countervailing duty notice in respect of goods,** means an exporter of
goods the subject of the application or like goods other than a selected
exporter, and includes a new exporter of such goods**;**

**\"retrospective notice\"** means a notice issued under subsection
269TG(1), 269TH(1), 269TJ(1) or 269TK(1);

**"Review Officer"** means the person from time to time holding the
office of Trade Measures Review Officer established under Division 8 and
includes a person acting in that office.

**\"selected exporter\", in relation to a dumping duty notice or a
countervailing duty notice in respect of goods,** means an exporter of
goods the subject of the application or like goods whose exportations
were investigated for the purpose of deciding whether or not to publish
that notice;

**\"subsidy\", in relation to goods that are exported to Australia,**
means:

\(a\) a financial contribution:

\(i\) by a government of the country of export or country of origin of
those goods; or

\(ii\) by a public body of that country or of which that government is a
member; or

\(iii\) by a private body entrusted or directed by that government or
public body to carry out a governmental function;

that is made in connection with the production, manufacture or export of
those goods and that involves:

\(iv\) a direct transfer of funds from that government or body to the
enterprise by whom the goods are produced, manufactured or exported; or

\(v\) a direct transfer of funds from that government or body to that
enterprise contingent upon particular circumstances occurring; or

\(vi\) the acceptance of liabilities, whether actual or potential, of
that enterprise by that government or body; or

\(vii\) the forgoing, or non-collection, of revenue (other than an
allowable exemption or remission) due to that government or body by that
enterprise; or

\(viii\) the provision by that government or body of goods or services
to that enterprise otherwise than in the course of providing normal
infrastructure; or

\(ix\) the purchase by that government or body of goods provided by that
enterprise; or

\(b\) any form of income or price support as referred to in Article XVI
of the General Agreement on Tariffs and Trade 1994 that is received from
such a government or body;

if that financial contribution or income or price support confers a
benefit in relation to those goods;

**\"third country\", in relation to goods that have been or may be
exported to Australia** means a country other that Australia or the
country of export, or the country of origin, of those goods;

**\"World Trade Organization Agreement\"** means the Agreement
Establishing the World Trade Organization done at Marrakesh on 15 April
1994.

**(2)** For the purposes of this Part, goods, other than unmanufactured
raw products, are not to be taken to have been produced in Australia
unless the goods were wholly or partly manufactured in Australia.

**(2A)** A reference in this Part to the amount of the export price of
goods, to the amount of the normal value of goods, to the amount of the
subsidy received in respect of goods or to the amount of freight shall,
where that amount is not expressed in Australian currency, be read as a
reference to the equivalent amount in Australian currency.

**(2AA)** A reference in this Part to a subsidy or a countervailable
subsidy received in respect of goods from a government of the country of
export or country of origin of the goods includes a reference to a
subsidy or countervailable subsidy received in respect of those goods:

\(a\) from a public body of that government or of which that government
is a member; or

\(b\) from a private body entrusted or directed by that government or
public body to carry out a governmental function**.**

**(2AB)** If a subsidy is constituted by a financial contribution
provided by a public body of which a country is a member but is
delivered, not by the public body but rather by that member country,
then, for the purposes of this Part, that subsidy is taken to have been
received both from the public body and from the member country.

**(2AC)** A subsidy is taken to have been received in respect of
particular goods:

\(a\) whether the benefit conferred by the subsidy is conferred directly
or indirectly in relation to those goods; and

\(b\) whether or not the subsidy involves, or will involve, the payment
or grant of any form of financial assistance**.**

**(2AD)** The fact that an investigation period is specified to start at
a particular time does not imply that the Minister may not examine
periods before that time for the purpose of determining whether material
injury has been caused to an Australian industry or to an industry of a
third country.

**(2B)** For the purposes of this Part, where, during the exportation of
goods to Australia, the goods pass in transit from a country through
another country, that other country shall be disregarded in ascertaining
the country of export of the goods.

**(3)** For the purposes of subsection (2), goods shall not be taken to
have been partly manufactured in Australia unless at least one
substantial process in the manufacture of the goods was carried out in
Australia.

**(4)** For the purposes of this Part, if, in relation to goods of a
particular kind, there is a person or there are persons who produce like
goods in Australia:

\(a\) there is an Australian industry in respect of those like goods;
and

\(b\) subject to subsection (4A), the industry consists of that person
or those persons.

**(4A)** Where, in relation to goods of a particular kind first referred
to in subsection (4), the like goods referred to in that subsection are
close processed agricultural goods, then, despite subsection (4), the
industry in respect of those close processed agricultural goods consists
not only of the person or persons producing the processed goods but also
of the person or persons producing the raw agricultural goods from which
the processed goods are derived.

**(4B)** For the purposes of subsection (4A), processed agricultural
goods derived from raw agricultural goods are not to be taken to be
close processed agricultural goods unless the Minister is satisfied
that:

\(a\) the raw agricultural goods are devoted substantially or completely
to the processed agricultural goods; and

\(b\) the processed agricultural goods are derived substantially or
completely from the raw agricultural goods; and

either:

\(i\) there is a close relationship between the price of the processed
agricultural goods and the price of the raw agricultural goods; or

\(ii\) a significant part of the production cost of the processed
agricultural goods, whether or not there is a market in Australia for
those goods, is, or would be constituted by the cost to the producer of
those goods of the raw agricultural goods.

**(4C)** Where the Minister is satisfied that sufficient information has
not been furnished or is not available to enable the production cost of
processed agricultural goods to be ascertained for the purpose of
subsection (4B), the production cost of those goods is such amount as is
determined by the Minister having regard to all relevant information.

**(4D)** In this Act, a reference to variable factors relevant to the
determination of duty payable under the Dumping Duty Act on particular
goods the subject of a dumping duty notice or a countervailing duty
notice is a reference:

\(a\) if the goods are the subject of a dumping duty notice:

\(i\) to the normal value of the goods; and

\(ii\) to the export price of the goods; and

\(iii\) to the non-injurious price of the goods; and

\(b\) if the goods are the subject of a countervailing duty notice:

\(i\) to the amount of countervailable subsidy received in respect of
the goods; and

\(ii\) to the export price of the goods; and

\(iii\) to the non-injurious price of the goods.

**(4E)** In this Act, a reference to variable factors relevant to the
review, under Division 5, of anti-dumping measures taken in respect of
goods is a reference:

\(a\) if the goods are the subject of a dumping duty notice---to the
normal value, export price and non-injurious price of goods of that kind
as ascertained, or last ascertained, by the Minister for the purpose of
the notice; and

\(b\) if the goods are the subject of a countervailing duty notice:

\(i\) to the amount of countervailable subsidy received in respect of
the goods; and

\(ii\) to the non-injurious price of the goods;

as ascertained, or last ascertained, by the Minister for the purpose of
the notice; and

\(c\) if the goods are the subject of an undertaking accepted under
section 269TG---to the normal value of the goods, and the non-injurious
price of the goods, as indicated by the Minister to the exporter in
negotiations relating to the acceptability of the undertaking; and

\(d\) if the goods are the subject of an undertaking accepted under
section 269TJ---to the countervailable subsidy received in respect of
the goods, and the non-injurious price of the goods, as indicated by the
Minister to the exporter or to the country of export in negotiations
relating to the acceptability of the undertaking.

**(5)** A reference in this Act to goods the subject of an application
under section 269TB is a reference to goods referred in the application:

\(a\) that have been imported into Australia;

\(b\) that are likely to be so imported; or

\(c\) that may be so imported, being like goods to goods to which
paragraph (a) or (b) applies.

**(5A)** For the purposes of this Part the weighted average of prices,
values, costs or amounts in relation to goods over a particular period
is to be worked out in accordance with the following formula:

[P1Q1 + P2Q2 + \... + PnQn]{.underline}

Q1 + Q2 + \... + Qn

where:

\"P1, P2 ...Pn\" means the price, value, cost or amount, per unit, in
respect of the goods in the respective transactions during the period;

\"Q1, Q2 \... Qn\" means the number of units of the goods involved in
each of the respective transactions.

**(5B)** In working out the number of units of goods involved in a
transaction, any units of goods that are, for the purposes of paragraph
269TAB(1)(b) or (c), subsection 269TAB(3), paragraph 269TAC(2)(c) or
(4)(e) or subsection 269TAC(6), treated as being involved in a
particular transaction are taken to be actually involved in the
transaction.

**(6)** Sundays and public holidays shall, notwithstanding the
definition of \"days\" in section 4 be counted as days for the purpose
of computing a period for the purposes of this Part but nothing in this
subsection shall derogate from the operation of section 36 of the Acts
Interpretation Act 1901.

**269TAAA** **Anti-dumping measures not to apply to goods of New Zealand
origin**

**(1)** This Part, so far as it relates to duty that may become payable
under section 8 or 9 of the Dumping Duty Act, does not apply to goods
that are the produce or manufacture of New Zealand.

**(2)** In subsection (1):

\"goods\" includes goods imported into Australia before the commencement
of this section.

**269TAAB** **Member countries, developing countries and special
developing countries**

**(1)** The Minister may certify that a particular country is, or was,
during a specified period or on a specified day:

\(a\) a member country of the World Trade Organization; or

\(b\) a developing country, whether a member country or not; or

\(c\) a special developing country within the meaning of subsection (2).

**(2)** For the purposes of subsection (1), a country is, or was, during
a specified period or on a specified day, a special developing country
if:

\(a\) it is or was, during that period or on that day, a developing
country; and

\(b\) it is or was, during that period or on that day:

\(i\) a least developed country, whether a member country or not; or

\(ii\) a member country that has eliminated and not restored export
subsidies; or

\(iii\) a member country referred to in paragraph (b) of Annex VII of
the Agreement on Subsidies and Countervailing Measures having a gross
national product of less than \$US1,000 per annum per head of
population.

**(3)** For all purposes of this Part and in all proceedings, a
certificate under subsection (1) is conclusive evidence of the matters
certified, except so far as the contrary is established.

**269TAAC** **Definition---countervailable subsidy**

**(1)** For the purposes of this Part, a subsidy is a countervailable
subsidy if:

\(a\) it is specific; and

\(b\) it is not an excluded subsidy.

**(2)** Without limiting the generality of the circumstances in which a
subsidy is specific, a subsidy is specific:

\(a\) if, subject to subsection (3), access to the subsidy is explicitly
limited to particular enterprises; or

\(b\) if, subject to subsection (3), access is limited to particular
enterprises carrying on business within a designated geographical region
that is within the jurisdiction of the subsidising authority; or

\(c\) if the subsidy is contingent, in fact or in law, and whether
solely or as one of several conditions, on export performance; or

\(d\) if the subsidy is contingent, whether solely or as one of several
conditions, on the use of domestically produced or manufactured goods in
preference to imported goods.

**(3)** Subject to subsection (4), a subsidy is not specific if access
to the subsidy:

\(a\) is established by objective criteria or conditions set out in
primary or subordinate legislation or other official documents that are
capable of verification; and

\(b\) those criteria or conditions do not favour particular enterprises
over others and are economic in nature; and

\(c\) those criteria or conditions are strictly adhered to in the
administration of the subsidy.

**(4)** Despite the fact that access to a subsidy is established by
objective criteria, the Minister may, having regard to:

\(a\) the fact that the subsidy programme benefits a limited number of
particular enterprises; or

\(b\) the fact that the subsidy programme predominantly benefits
particular enterprises; or

\(c\) the fact that the particular enterprises have access to
disproportionately large amounts of the subsidy; or

\(d\) the manner in which a discretion to grant access to the subsidy
has been exercised;

determine that the subsidy is specific.

**(5)** In making a determination under subsection (4), the Minister
must take account of:

\(a\) the extent of diversification of economic activities within the
jurisdiction of the subsidising authority; and

\(b\) the length of time during which the subsidy program has been in
operation.

**(6)** A subsidy is an excluded subsidy if the Minister is satisfied
that:

\(a\) it is specific but described in paragraph (a), (b) or (c) of
Article 8.2 of the Agreement on Subsidies and Countervailing Measures;
or

\(b\) it is a domestic support measure that meets the criteria or
conditions set out in Annex 2 to the Agreement on Agriculture.

**269TAAD** **Ordinary course of trade**

**(1)** If the Minister is satisfied, in relation to goods exported to
Australia:

\(a\) that like goods are sold in the country of export in sales that
are arms length transactions in substantial quantities during an
extended period:

\(i\) for home consumption in the country of export; or

\(ii\) for exportation to a third country; at a price that is less than
the cost of such goods; and

\(b\) that it is unlikely that the seller of the goods will be able to
recover the cost of such goods within a reasonable period;

the price paid for the goods referred to in paragraph (a) is taken not
to have been paid in the ordinary course of trade.

**(2)** For the purposes of this section, sales of goods at a price that
is less than the cost of such goods are taken to have occurred in
substantial quantities during an extended period if the volume of sales
of such goods at a price below the cost of such goods over that period
is not less than 20% of the total volume of sales over that period.

**(3)** Costs of goods are taken to be recoverable within a reasonable
period of time if, although the selling price of those goods at the time
of their sale is below their cost at that time, the selling price is
above the weighted average cost of such goods over the investigation
period.

**(4)** The cost of goods is worked out by adding:

\(a\) the amount determined by the Minister to be the cost of production
or manufacture of those goods in the country of export; and

\(b\) the amount determined by the Minister to be the administrative,
selling and general costs associated with the sale of those goods.

**(5)** Amounts determined by the Minister for the purposes of
paragraphs (4)(a) and (b) must be worked out in such manner, and taking
account of such factors, as the regulations provide in respect of those
purposes.

**269TAA** **Arms length transactions**

**(1)** For the purposes of this Part, a purchase or sale of goods shall
not be treated as an arms length transaction if:

\(a\) there is any consideration payable for or in respect of the goods
other than their price; or

\(b\) the price is influenced by a commercial or other relationship
between the buyer, or an associate of the buyer, and the seller, or an
associate of the seller; or

\(c\) in the opinion of the Minister the buyer, or an associate of the
buyer, will, subsequent to the purchase or sale, directly or indirectly,
be reimbursed, be compensated or otherwise receive a benefit for, or in
respect of, the whole or any part of the price.

**(1A)** For the purposes of paragraph (1)(c), the Minister must not
hold the opinion referred to in that paragraph because of a
reimbursement in respect of the purchase or sale if the Minister is of
the opinion that the purchase or sale will remain an arms length
transaction in spite of the payment of that reimbursement, having regard
to any or all of the following matters:

\(a\) any agreement, or established trading practices, in relation to
the seller and the buyer, in respect of the reimbursement;

\(b\) the period for which such an agreement or practice has been in
force;

\(c\) whether or not the amount of the reimbursement is quantifiable at
the time of the purchase or sale.

**(2)** Without limiting the generality of subsection (1), where:

\(a\) goods are exported to Australia otherwise than by the importer and
are purchased by the importer from the exporter (whether before or after
exportation) for a particular price; and

\(b\) the Minister is satisfied that the importer, whether directly or
through an associate or associates, sells those goods in Australia
(whether in the condition in which they were imported or otherwise) at a
loss;

the Minister may, for the purposes of paragraph (1)(c), treat the sale
of those goods at a loss as indicating that the importer or an associate
of the importer will, directly or indirectly, be reimbursed, be
compensated or otherwise receive a benefit for, or in respect of, the
whole or a part of the price.

**(3)** In determining, for the purposes of subsection (2), whether
goods are sold by an importer at a loss, the Minister shall have regard
to:

\(a\) the amount of the price paid or to be paid for the goods by the
importer; and

\(b\) such other amounts as the Minister determines to be costs
necessarily incurred in the importation and sale of the goods; and

\(c\) the likelihood that the amounts referred to in paragraphs (a) and
(b) will be able to be recovered within a reasonable time; and

\(d\) such other matters as the Minister considers relevant.

**(4)** For the purposes of this Part, 2 persons shall be deemed to be
associates of each other if, and only if:

\(a\) both being natural persons:

\(i\) they are connected by a blood relationship or by marriage or by
adoption; or

\(ii\) one of them is an officer or director of a body corporate
controlled, directly or indirectly, by the other;

\(b\) both being bodies corporate:

\(i\) both of them are controlled, directly or indirectly, by a third
person (whether or not a body corporate); or

\(ii\) both of them together control, directly or indirectly, a third
body corporate; or

\(iii\) the same person (whether or not a body corporate) is in a
position to cast, or control the casting of, 5% or more of the maximum
number of votes that might be cast at a general meeting of each of them;
or

\(c\) one of them, being a body corporate, is, directly or indirectly,
controlled by the other (whether or not a body corporate); or

\(d\) one of them, being a natural person, is an employee, officer or
director of the other (whether or not a body corporate); or

\(e\) they are members of the same partnership.

**269TAB** **Export price**

**(1)** For the purposes of this Part, the export price of any goods
exported to Australia is:

\(a\) where:

\(i\) the goods have been exported to Australia otherwise than by the
importer and have been purchased by the importer from the exporter
(whether before or after exportation); and

\(ii\) the purchase of the goods by the importer was an arms length
transaction;

the price paid or payable for the goods by the importer, other than any
part of that price that represents a charge in respect of the transport
of the goods after exportation or in respect of any other matter arising
after exportation; or

\(b\) where:

\(i\) the goods have been exported to Australia otherwise than by the
importer and have been purchased by the importer from the exporter
(whether before or after exportation); and

\(ii\) the purchase of the goods by the importer was not an arms length
transaction; and

\(iii\) the goods are subsequently sold by the importer, in the
condition in which they were imported, to a person who is not an
associate of the importer;

the price at which the goods were so sold by the importer to that person
less the prescribed deductions; or

\(c\) in any other case---the price that the Minister determines having
regard to all the circumstances of the exportation.

**(1A)** For the purposes of paragraph (1)(a), the reference in that
paragraph to the price paid or payable for goods is a reference to that
price after deducting any amount that is determined by the Minister to
be a reimbursement of the kind referred to in subsection 269TAA(1A) in
respect of that transaction.

**(2)** A reference in paragraph (1)(b) to prescribed deductions in
relation to a sale of goods that have been exported to Australia shall
be read as a reference to:

\(a\) any duties of Customs or sales tax paid or payable on the goods;
and

\(b\) any costs, charges or expenses arising in relation to the goods
after exportation; and

\(c\) the profit, if any, on the sale by the importer or, where the
Minister so directs, an amount calculated in accordance with such rate
as the Minister specifies in the direction as the rate that, for the
purposes of paragraph (1)(b), is to be regarded as the rate of profit on
the sale by the importer.

**(3)** Where the Minister is satisfied that sufficient information has
not been furnished, or is not available, to enable the export price of
goods to be ascertained under the preceding subsections, the export
price of those goods shall be such amount as is determined by the
Minister having regard to all relevant information.

**(4)** For the purposes of this section, the Minister may disregard any
information that he or she considers to be unreliable.

**(5)** Paragraphs (1)(a) and (b) apply in relation to a purchase of
goods by an importer from an exporter whether or not the importer and
exporter are associates of each other.

**269TAC** **Normal value of goods**

**(1)** Subject to this section, for the purposes of this Part, the
normal value of any goods exported to Australia is the price paid or
payable for like goods sold in the ordinary course of trade for home
consumption in the country of export in sales that are arms length
transactions by the exporter or, if like goods are not so sold by the
exporter, by other sellers of like goods.

**(1A)** For the purposes of subsection (1), the reference in that
subsection to the price paid or payable for like goods is a reference to
that price after deducting any amount that is determined by the Minister
to be a reimbursement of the kind referred to in subsection 269TAA(1A)
in respect of the sales.

**(2)** Subject to this section, where the Minister:

\(a\) is satisfied that:

\(i\) because of the absence, or low volume, of sales of like goods in
the market of the country of export that would be relevant for the
purpose of determining a price under subsection (1); or

\(ii\) because the situation in the market of the country of export is
such that sales in that market are not suitable for use in determining a
price under subsection (1);

the normal value of goods exported to Australia cannot be ascertained
under subsection (1); or

\(b\) is satisfied, in a case where like goods are not sold in the
ordinary course of trade for home consumption in the country of export
in sales that are arms length transactions by the exporter, that it is
not practicable to obtain, within a reasonable time, information in
relation to sales by other sellers of like goods that would be relevant
for the purpose of determining a price under subsection (1);

the normal value of the goods for the purposes of this Part is:

\(c\) except where paragraph (d) applies, the sum of:

\(i\) such amount as the Minister determines to be the cost of
production or manufacture of the goods in the country of export; and

\(ii\) on the assumption that the goods, instead of being exported, had
been sold for home consumption in the ordinary course of trade in the
country of export---such amounts as the Minister determines would be the
administrative, selling and general costs associated with the sale and,
subject to subsection (13), the profit on that sale; or

\(d\) if the Minister directs that this paragraph applies---the price
determined by the Minister to be the price paid or payable for like
goods sold in the ordinary course of trade in arms length transactions
for exportation from the country of export to a third country determined
by the Minister to be an appropriate third country, other than any
amount determined by the Minister to be a reimbursement of the kind
referred to in subsection 269TAA(1A) in respect of any such
transactions.

**(3)** The price determined under paragraph (2)(d) is a price that the
Minister determines, having regard to the quantity of like goods sold as
described in paragraph (2)(d) at that price, is representative of the
price paid in such sales.

**(4)** Subject to subsections (6) and (8), where the Minister is
satisfied that it is inappropriate to ascertain the normal value of
goods in accordance with the preceding subsections because the
Government of the country of export:

\(a\) has a monopoly, or substantial monopoly, of the trade of the
country; and

\(b\) determines or substantially influences the domestic price of goods
in that country;

the normal value of the goods for the purposes of this Part is to be a
value ascertained in accordance with whichever of the following
paragraphs the Minister determines having regard to what is appropriate
and reasonable in the circumstances of the case:

\(c\) a value equal to the price of like goods produced or manufactured
in a country determined by the Minister and sold for home consumption in
the ordinary course of trade in that country, being sales that are arms
length transactions;

\(d\) a value equal to the price determined by the Minister to be the
price of like goods produced or manufactured in a country determined by
the Minister and sold in the ordinary course of trade in arms length
transactions for exportation from that country to a third country
determined by the Minister to be an appropriate third country;

\(e\) a value equal to the sum of the following amounts ascertained in
respect of like goods produced or manufactured in a country determined
by the Minister and sold for home consumption in the ordinary course of
trade in that country:

\(i\) such amount as the Minister determines to be the cost of
production or manufacture of the like goods in that country;

\(ii\) such amounts as the Minister determines to be the administrative,
selling and general costs associated with the sale of like goods in that
country and the profit on that sale;

\(f\) a value equal to the price payable for like goods produced or
manufactured in Australia and sold for home consumption in the ordinary
course of trade in Australia, being sales that are arms length
transactions.

**(5)** The price determined under paragraph (4)(d) is a price that the
Minister determines, because of the quantity of like goods sold as
described in paragraph (4)(d) at that price, is representative of the
price paid in such sales.

**(5A)** Amounts determined:

\(a\) to be the cost of production or manufacture of goods under
subparagraph (2)(c)(i) or (4)(e)(i); and

\(b\) to be the administrative, selling and general costs in relation to
goods under subparagraph (2)(c)(ii) or (4)(e)(ii);

must be worked out in such manner, and taking account of such factors,
as the regulations provide for the respective purposes of paragraphs
269TAAD(4)(a) and (b).

**(5B)** The amount determined to be the profit on the sale of goods
under subparagraph (2)(c)(ii) or (4)(e)(ii), must be worked out in such
manner, and taking account of such factors, as the regulations provide
for that purpose.

**(5C)** Without limiting the generality of the matters that may be
taken into account by the Minister in determining whether a third
country is an appropriate third country for the purposes of paragraph
(2)(d) or (4)(d), the Minister may have regard to the following matters:

\(a\) whether the volume of trade from the country of export referred to
in paragraph (2)(d) or the country first-mentioned in paragraph (4)(d)
is similar to the volume of trade from the country of export to
Australia; and

\(b\) whether the nature of the trade in goods concerned between the
country of export referred to in paragraph (2)(d) or the country first
-mentioned in paragraph (4)(d) is similar to the nature of trade between
the country of export and Australia.

**(6)** Where the Minister is satisfied that sufficient information has
not been furnished or is not available to enable the normal value of
goods to be ascertained under the preceding subsections, the normal
value of those goods is such amount as is determined by the Minister
having regard to all relevant information.

**(7)** For the purposes of this section, the Minister may disregard any
information that he or she considers to be unreliable.

**(8)** Where the normal value of goods exported to Australia is the
price paid or payable for like goods and that price and the export price
of the goods exported:

\(a\) relate to sales occurring at different times; or

\(a\) are not in respect of identical goods; or

\(c\) are modified in different ways by taxes or the terms or
circumstances of the sales to which they relate;

that price paid or payable for like goods is to be taken to be such a
price adjusted in accordance with directions by the Minister so that
those differences would not affect its comparison with that export
price.

**(9)** Where the normal value of goods exported to Australia is to be
ascertained in accordance with paragraph (2)(c) or (4)(e), the Minister
must make such adjustments, in determining the costs to be determined
under that paragraph, as are necessary to ensure that the normal value
so ascertained is properly comparable with the export price of those
goods.

**(10)** Where:

\(a\) the actual country of export of goods exported to Australia is not
the country of origin of the goods; and

\(b\) the Minister is of the opinion that the normal value of the goods
should be ascertained for the purposes of this Part as if the country of
origin were the country of export;

he or she may direct that the normal value of the goods is to be so
ascertained.

**(11)** For the purposes of subsection (10), the country of origin of
goods is:

\(a\) in the case of unmanufactured raw products---the country of which
they are products; or

\(b\) in any other case---the country in which the last significant
process in the manufacture or production of the goods was performed.

**(12)** Deleted

**(13)** Where, because of the operation of section 269TAAD, the normal
value of goods is required to be determined under subsection (2), the
Minister shall not include in his or her calculation of that normal
value any profit component under subparagraph (2)(c)(ii).

**(14)** If:

\(a\) application is made for a dumping duty notice; and

\(b\) goods the subject of the application are exported to Australia;
but

\(c\) the volume of sales of like goods for home consumption in the
country of export by the exporter or another seller of like goods is
less than 5% of the volume of goods the subject of the application that
are exported to Australia by the exporter;

the volume of sales referred to in paragraph (c) is taken, for the
purposes of paragraph (2)(a), to be a low volume unless the Minister is
satisfied that it is still large enough to permit a proper comparison
for the purposes of assessing a dumping margin under section 269TACB.

**269TACA** **Non‑injurious price**

The non-injurious price of goods exported to Australia is the minimum
price necessary:

a\) if the goods are the subject of, or of an application for, a dumping
duty notice under subsection 269TG(1) or (2)---to prevent the injury, or
a recurrence of the injury, or to remove the hindrance, referred to in
paragraph 269TG(l)(b) or (2)(b); or

\(b\) if the goods are the subject of, or of an application for, a third
country dumping duty notice under subsection 269TH(1) or (2)---to
prevent the injury, or a recurrence of the injury, referred to in
paragraph 269TH(l)(b) or (2)(b); or

\(c\) if the goods are the subject of, or of an application for, a
countervailing duty notice under subsection 269TJ(1) or (2)---to prevent
the injury, or a recurrence of the injury, or to remove the hindrance,
referred to in paragraph 269TJ(l)(b) or (2)(b); or

\(d\) if the goods are the subject of, or of an application for, a third
country countervailing duty notice under subsection 269TK(1) or (2)---to
prevent the injury, or a recurrence of the injury, referred to in
paragraph 269TK(l)(b) or (2)(b).

**269TACB** **Working out whether dumping has occurred and levels of
dumping**

**(1)** If:

\(a\) application is made for a dumping duty notice; and

\(b\) export prices in respect of goods the subject of the application
exported to Australia during the investigation period have been
established in accordance with section 269TAB; and

\(c\) corresponding normal values in respect of like goods during that
period have been established in accordance with section 269TAC;

the Minister must determine, by comparison of those export prices with
those normal values, whether dumping has occurred.

**(2)** In order to compare those export prices with those normal
values, the Minister may, subject to subsection (3):

\(a\) compare the weighted average of export prices over the whole of
the investigation period with the weighted average of corresponding
normal values over the whole of that period; or

(aa) use the method of comparison referred to in paragraph (a) in
respect of parts of the investigation period as if each of these parts
were the whole investigation period; or

\(b\) compare the export prices determined in respect of individual
transactions over the whole of the investigation period with the
corresponding normal values determined over the whole of that period; or

\(c\) use:

\(i\) the method of comparison referred to in paragraph (a) in respect
of a part or parts of the investigation period as if the part or each of
these parts were the whole of the investigation period; and

\(ii\) the method of comparison referred to in paragraph (b) in respect
of another part or other parts of the investigation period as if that
other part or each of these other parts were the whole of the
investigation period.

**(2A)** If paragraph (2)(aa) or (c) applies:

\(a\) each part of the investigation period referred to in the paragraph
must not be less than 2 months; and

\(b\) the parts of the investigation period as referred to in paragraph
(2)(aa), or as referred to in subparagraphs (2)(c)(I) and (ii), must
together comprise the whole of the investigation period.

**(3)** If the Minister is satisfied:

\(a\) that the export prices differ significantly among different
purchasers, regions or periods; and

\(b\) that those differences make the methods referred to in subsection
(2) inappropriate for use in respect of a period constituting the whole
or a part of the investigation period;

the Minister may, for that period, compare the respective export prices
determined in relation to individual transactions during that period
with the weighted average of corresponding normal values over that
period.

**(4)** If, in a comparison under subsection (2), the Minister is
satisfied that the weighted average of export prices over a period is
less than the weighted average of corresponding normal values over that
period:

\(a\) the goods exported to Australia during that period are taken to
have been dumped; and

\(b\) the dumping margin for the exporter concerned in respect of those
goods and that period is the difference between those weighted averages.

**(4A)** To avoid doubt, a reference to a period in subsection (4)
includes a reference to a part of the investigation period.

**(5)** If, in a comparison under subsection (2), the Minister is
satisfied that an export price in respect of an individual transaction
during the investigation period is less than the corresponding normal
value:

\(a\) the goods exported to Australia in that transaction are taken to
have been dumped; and

\(b\) the dumping margin for the exporter concerned in respect of those
goods and that transaction is the difference between that export price
and that normal value.

**(6)** If, in a comparison under subsection (3), the Minister is
satisfied that the export prices in respect of particular transactions
during the investigation period are less than the weighted average of
corresponding normal values during that period:

\(a\) the goods exported to Australia in each such transaction are taken
to have been dumped; and

\(b\) the dumping margin for the exporter concerned in respect of those
goods is the difference between each relevant export price and the
weighted average of corresponding normal values.

**(7)** Subject to subsection (8), the existence of dumping and the size
of a dumping margin will normally be worked out for individual exporters
of goods to Australia.

**(8)** If the number of exporters from a particular country of export
who provide information in relation to an application for a dumping duty
notice is so large that it is not practicable to determine the existence
of dumping and to work out individual dumping margins for each of them,
the Minister may, on the basis of information obtained from an
investigation of a selected number of those exporters:

\(a\) who constitute a statistically valid sample of those exporters; or

\(b\) who are responsible for the largest volume of exportations to
Australia that can reasonably be investigated;

decide whether dumping exists, and, if it does, fix dumping margins for
such selected exporters and for exporters who are not so selected.

**(9)** If information is submitted by an exporter not initially
selected under subsection (8) for the purposes of an investigation, the
investigation must extend to that exporter unless to so extend it would
prevent the investigation\'s timely completion.

**(10)** Any comparison of export prices, or weighted average of export
prices, with any corresponding normal values, or weighted average of
corresponding normal values, must be worked out in respect of similar
units of goods, whether determined by weight, volume or otherwise.

**269TACC** **Working out whether benefits have been conferred and
amounts of subsidy**

**(1)** If:

\(a\) a financial contribution referred to in paragraph (a) of the
definition of \"subsidy\" in subsection 269T(1); or

\(b\) income or price support referred to in paragraph (b) of that
definition;

is received in respect of goods, the question whether that financial
contribution or income or price support confers a benefit, and, if so,
the amount of subsidy attributable to that benefit, are to be worked out
according to this section.

**(2)** If a financial contribution in respect of goods is a direct
financial payment received from a government of a country, a public body
of that government or of which that government is a member, or a private
body entrusted or directed by that government or public body to carry
out a governmental function, a benefit is taken to be conferred because
of that payment.

**(3)** If:

\(a\) there is no financial contribution of the kind referred to in
subsection (2) received in respect of goods; but

\(b\) a financial contribution of another kind, or income or price
support, is received in respect of those goods from a government of a
country, a public body of that government or of which that government is
a member, or a private body entrusted or directed by that government or
public body to carry out a governmental function;

the question whether that financial contribution or income or price
support confers a benefit is to be determined by the Minister.

**(4)** In determining whether a financial contribution confers a
benefit, the Minister must have regard to the following guidelines:

\(a\) the provision of equity capital from the government or body
referred to in subsection (3) does not confer a benefit unless the
decision to provide the capital is inconsistent with normal investment
practice of private investors in the country concerned;

\(b\) the making of a loan by the government or a body referred to in
subsection (3) does not confer a benefit unless the loan requires
repayment of a lesser amount than would be required for a comparable
commercial loan;

\(c\) the guarantee of a loan by the government or a body referred to in
subsection (3) does not confer a benefit unless, without the guarantee,
the enterprise receiving the loan would have to repay a greater amount;

\(d\) the provision of goods or services by the government or body
referred to in subsection (3) does not confer a benefit unless the goods
or services are provided for less than adequate remuneration;

\(e\) the purchase of goods by the government or body referred to in
subsection (3) does not confer a benefit if the purchase is made for
more than adequate remuneration.

**(5)** For the purposes of paragraphs (4)(d) and (e), the adequacy of
remuneration in relation to goods or services is to be determined having
regard to prevailing market conditions for like goods or services in the
country where those goods or services are provided or purchased.

**(6)** If a benefit is conferred:

\(a\) by a financial contribution in the form referred to in subsection
(2)---the total amount of subsidy attributable to the benefit is an
amount equal to the payment; or

\(b\) by the making of a loan by the government or a body referred to in
subsection (3)---the total amount of subsidy attributable to the benefit
is an amount equal to the difference between the amount required to be
repaid on that loan and the amount that would be required to be repaid
on a comparable commercial loan; or

\(c\) by the guarantee of a loan by the government or a body referred to
in subsection (3)---the total amount of subsidy attributable to the
benefit is an amount equal to the difference between the amount required
to be repaid upon the loan so guaranteed and the amount that would be
required to be repaid upon a commercial loan, without that guarantee,
adjusted for any difference in fees; or

\(d\) by any other financial contribution, or income or price support as
referred to in subsection (3)---the total amount of subsidy attributable
to the benefit is an amount determined by the Minister, in writing, in
accordance with the regulations made for the purposes of this section.

**(7)** If the Minister is satisfied, in respect of a particular
financial contribution or form of income or price support:

\(a\) that subsections (2), (3), (4) and (5) are inappropriate for
determining whether a benefit has been conferred; or

\(b\) that, if a benefit has been conferred, subsection (6) is
inappropriate for determining the total amount of subsidy attributable
to the benefit;

the Minister may determine, in writing, that he or she is so satisfied
and determine an alternative basis for deciding whether a benefit has
been conferred or for working out the amount of subsidy attributable to
the benefit.

**(8)** If the number of exporters from a particular country of export
who provide information in relation to an application for a
countervailing duty notice is so large that it is not practicable to
work out whether a benefit has been conferred and the amount of subsidy
received by them, the Minister may, on the basis of information obtained
from an investigation of a selected number of those exporters:

\(a\) who constitute a statistically valid sample of those exporters; or

\(b\) who are responsible for the largest volume of exportations to
Australia that can reasonably be investigated;

decide whether a benefit is conferred and, if it is, the amount of
subsidy attributable to that benefit for such selected exporters and for
exporters who are not so selected.

**(9)** If information is submitted by an exporter not initially
selected under subsection (8) for the purposes of an investigation, the
investigation must extend to that exporter unless to so extend it would
prevent the investigation\'s timely completion.

**(10)** After the total amount of the subsidy received in respect of
goods has been worked out, the Minister must, if that subsidy is not
quantified by reference to a unit of those goods determined by weight,
volume or otherwise, work out how much of that amount is properly
attributable to each such unit.

**269TAD.** **Minister may re-ascertain certain normal values**[^1]

Where the Minister has, for the purpose of publishing a notice under
section 269TG or 269TH declaring that section to apply to goods that may
be imported into Australia, being like goods to goods that have been so
imported, ascertained the normal value of the imported goods, the
Minister may, at any time, and from time to time, if the Minister is of
the opinion that any factor relevant to the ascertainment of the normal
value of goods to which that section applies has altered, re-ascertain
that normal value and, where the Minister does so, the Minister is to
publish that normal value as so re-ascertained in the *Gazette* unless,
in the opinion of the Minister, the publication of that information
would adversely affect the business or commercial interests of any
person.

#### **269TAE.** **Material injury to industry**

**(1)** In determining, for the purposes of section 269TG or 269TJ,
whether material injury to an Australian industry has been or is being
caused or is threatened or would or might have been caused, or whether
the establishment of an Australian industry has been materially
hindered, because of any circumstances in relation to the exportation of
goods to Australia from the country of export, the Minister may, without
limiting the generality of that section but subject to subsections (2A),
(2B) and (2C), have regard to:

(aa) if the determination is being made for the purposes of section
269TG ---the size of the dumping margin, or of each of the dumping
margins, worked out in respect of the goods of that kind that have been
exported to Australia and dumped; and

(ab) if the determination is being made for the purposes of section
269TJ ---particulars of any countervailable subsidy received in respect
of goods of that kind that have been exported to Australia; and

\(a\) the quantity of goods of that kind that, during a particular
period, have been or are likely to be exported to Australia from the
country of export; and

\(b\) any increase or likely increase, during a particular period, in
the quantity of goods of that kind exported to Australia from the
country of export; and

\(c\) any change or likely change, during a particular period, in the
proportion that:

\(i\) the quantity of goods of that kind exported to Australia from the
country of export and sold or consumed in Australia; or

\(ii\) the quantity of goods of that kind, or like goods, produced or
manufactured in the Australian industry and sold or consumed in
Australia;

bears to the quantity of goods of that kind, or like goods, sold or
consumed in Australia; and

\(d\) the export price that has been or is likely to be paid by
importers for goods of that kind exported to Australia from the country
of export; and

\(e\) the difference between:

\(i\) the price that has been or is likely to be paid for goods of that
kind, or like goods, produced or manufactured in the Australian industry
and sold in Australia; and

\(ii\) the price that has been or is likely to be paid for goods of that
kind exported to Australia from the country of export and sold in
Australia; and

\(f\) the effect that the exportation of goods of that kind to Australia
from the country of export in those circumstances has had or is likely
to have on the price paid for goods of that kind, or like goods,
produced or manufactured in the Australian industry and sold in
Australia; and

\(g\) the effect that the exportation of goods of that kind to Australia
from the country of export in those circumstances has had or is likely
to have on the relevant economic factors in relation to the Australian
industry; and

\(h\) if the determination is being made for the purposes of section
269TJ and the goods are agricultural products---whether the exportation
of goods of that kind to Australia from the country of export in those
circumstances has given or is likely to give rise to a need for
financial or other support, or an increase in financial or other
support, for the Australian industry from the Commonwealth Government.

**(2)** In determining, for the purposes of section 269TH or 269TK,
whether material injury to an industry in a third country has been or is
being caused or is threatened or would or might have been caused because
of any circumstances in relation to the exportation of goods to
Australia from the country of export, the Minister may, without limiting
the generality of that section but subject to subsections (2A), (2B) and
(2C), have regard to:

(aa) if the determination is being made for the purposes of section
269TH ---the size of the dumping margin, or of each of the dumping
margins, worked out in respect of the goods of that kind that have been
exported to Australia and dumped; and

(ab) if the determination is being made for the purposes of section
269TK ---particulars of any countervailable subsidy received in respect
of goods of that kind that have been exported to Australia; and

\(a\) the quantity of goods of that kind that, during a particular
period, have been or are likely to be exported to Australia from the
country of export; and

\(b\) any increase or likely increase, during a particular period, in
the quantity of goods of that kind exported to Australia from the
country of export; and

\(c\) any change or likely change, during a particular period, in the
proportion that:

\(i\) the quantity of goods of that kind exported to Australia from the
country of export and sold or consumed in Australia; or

\(ii\) the quantity of goods of that kind, or like goods, produced or
manufactured in the third country and sold or consumed in Australia;

bears to the quantity of goods of that kind, or like goods, sold or
consumed in Australia; and

\(d\) the export price that has been or is likely to be paid by
importers for goods of that kind exported to Australia from the country
of export; and

\(e\) the difference between:

\(i\) the price that has been or is likely to be paid for goods of that
kind, or like goods, produced or manufactured in the third country and
sold in Australia; and

\(ii\) the price that has been or is likely to be paid for goods of that
kind exported to Australia from the country of export and sold in
Australia; and

\(f\) the effect that the exportation of goods of that kind to Australia
from the country of export in those circumstances has had or is likely
to have on the price paid for goods of that kind, or like goods,
produced or manufactured in the third country and sold in Australia; and

\(g\) the effect that the exportation of goods of that kind to Australia
from the country of export in those circumstances has had or is likely
to have on the relevant economic factors in relation to the producer or
manufacturer in the third country.

**(2A)** In making a determination in relation to the exportation of
goods to Australia for the purposes referred to in subsection (1) or
(2), the Minister must consider whether any injury to an industry, or
hindrance to the establishment of an industry, is being caused or
threatened by a factor other than the exportation of those goods such
as:

\(a\) the volume and prices of imported like goods that are not dumped;
or

\(b\) the volume and prices of importations of like goods that are not
subsidised; or

\(c\) contractions in demand or changes in patterns of consumption; or

\(d\) restrictive trade practices of, and competition between, foreign
and Australian producers of like goods; or

\(e\) developments in technology; or

\(f\) the export performance and productivity of the Australian
industry;

and any such injury or hindrance must not be attributed to the
exportation of those goods.

**(2B)** In determining:

\(a\) for the purposes of subsection (1), whether or not material injury
is threatened to an Australian industry; or

\(b\) for the purposes of subsection (2), whether or not material injury
is threatened to an industry in a third country;

because of the exportation of goods into the Australian market, the
Minister must take account only of such changes in circumstances,
including changes of a kind determined by the Minister, as would make
that injury foreseeable and imminent unless dumping or countervailing
measures were imposed.

**(2C)** In determining, for the purposes referred to in subsection (1)
or (2), the effect of the exportation of like goods to Australia by
different exporters from the same country of export or from different
countries of export, the Minister should consider the cumulative effect
of those exportations only if, having regard to**:**

\(a\) the conditions of competition between those goods; and

\(b\) the conditions of competition between those goods and like goods
that are domestically produced

the Minister is satisfied that it is appropriate to do so.

**(3)** A reference in subsection (1) or (2) to the relevant economic
factors in relation to an Australian industry, or in relation to an
industry in a third country, in relation to goods of a particular kind
exported to Australia is a reference to:

\(a\) the quantity of goods of that kind, or like goods, produced or
manufactured in the industry; and

\(b\) the degree of utilization of the capacity of the industry, to
produce or manufacture goods of that kind, or like goods; and

\(c\) the quantity of goods of that kind, or like goods, produced or
manufactured in the industry:

\(i\) for which there are sales or forward orders; or

\(ii\) which are held as stocks; and

\(d\) the value of sales of, or forward orders for, goods of that kind,
or like goods, produced or manufactured in the industry; and

\(e\) the level of profits earned in the industry, that are attributable
to the production or manufacture of goods of that kind, or like goods;
and

\(f\) the level of return on investment in the industry; and

\(g\) cash flow in the industry; and

\(h\) the number of persons employed, and the level of wages paid to
persons employed, in the industry in relation to the production or
manufacture of goods of that kind, or like goods; and

\(i\) the share of the market in Australia for goods of that kind, or
like goods, that is held by goods of that kind, or like goods, produced
or manufactured in the industry; and

\(j\) the ability of persons engaged in the industry to raise capital in
relation to the production or manufacture of goods of that kind, or like
goods; and

\(k\) investment in the industry.

**269TAF** **Currency conversion**

**(1)** If, for the purposes of this Part, comparison of the export
prices of goods exported to Australia and corresponding normal values of
like goods requires a conversion of currencies, that conversion, subject
to subsection (2), is to be made using the rate of exchange on the date
of the transaction or agreement that, in the opinion of the Minister,
best establishes the material terms of the sale of the exported goods.

**(2)** If, in relation to goods exported to Australia, a forward rate
of exchange is used, the Minister may, in a conversion of currencies
under subsection (1), make use of that rate of exchange.

**(3)** If:

\(a\) the comparison referred to in subsection (1) requires the
conversion of currencies; and

\(b\) the rate of exchange between those currencies has undergone a
short-term fluctuation;

the Minister may, for the purpose of that comparison, disregard that
fluctuation.

**(4)** If:

\(a\) the comparison referred to in subsection (1) requires the
conversion of currencies; and

\(b\) the Minister is satisfied that the rate of exchange between those
currencies has undergone a sustained movement;

the Minister may, by notice published in the *Gazette*, declare that
this subsection applies with effect from a day specified in the notice
and, if the Minister does so, the Minister may use the rate of exchange
in force on that day for the purposes of that comparison during the
period of 60 days starting on that day.

**(5)** Nothing in subsection (4) prevents the Minister specifying a day
in a notice that is earlier than the day of publication of the notice if
the day specified:

\(a\) is a day after the start of the sustained movement; and

\(b\) is not a day occurring within 60 days after the day specified in a
prior notice.

**(6)** Nothing in subsection (4) prevents the Minister publishing more
than one notice if a sustained movement in the rate of exchange
continues for more than 60 days.

**(7)** The CEO may, if he or she considers it desirable so to do for
the avoidance of doubt, specify, by notice published in the *Gazette*, a
means of establishing a rate that is taken to be, or to have been, the
rate of exchange between the Australian currency and another currency or
between other currencies:

\(a\) on a day, or during a period, preceding the day of publication of
the notice; or

\(b\) from and including the day of publication of the notice, or an
earlier day specified in the notice, until the revocation of the notice.

**(8)** The rate of exchange established between currencies in a notice
under subsection (7) is, for the purpose of working out the amount of
duty or interim duty payable on any goods exported on the day or during
the period to which the rate so specified applies, the rate of exchange
that applies for the purposes of this section in respect of the
currencies specified in the notice.

**269TAG** **Minister may take anti-dumping measures on own initiative**

**(1)** Nothing in this Part implies that the Minister cannot initiate
an investigation into the need to take anti-dumping measures in respect
of goods although no application has been made under section 269TB for
the taking of such measures in respect of such goods.

**(2)** An investigation under subsection (1) must be carried out in
accordance with the Minister's written requirements instead of the
requirements set out in this Part.

**(3)** The Minister may, subject to subsection (4), take anti-dumping
measures as a result of the investigation as if the investigation had
been carried out under this Part.

**(4)** The Minister must not take such anti-dumping measures unless the
Minister:

\(a\) has determined any matters which the Minister would be required to
determine; and

\(b\) is satisfied of any matters of which the Minister would be
required to be satisfied;

in order to take those measures if the investigation had been carried
out in accordance with the requirements of the other provisions of this
Part.

**(5)** The Minister must ensure that:

\(a\) his or her instruction under subsection (2) for the conduct of an
investigation referred to in subsection (1); and

\(b\) his or her actions in taking any anti-dumping measures as a result
of such an investigation;

are consistent with Australia's international obligations under World
Trade Organization Agreement.

**(6)** The anti-dumping measures taken and any matters determined to
permit the taking of those measures are to be treated, for all purposes
of this Act and the Dumping Duty Act, as measures taken, and matters
determined, under the relevant provisions of this Part.

**269TA** **Minister may give directions to CEO in relation to powers
and duties under this Part**

**(1)** The Minister may give to the CEO such written directions in
connection with carrying out or giving effect to the CEO\'s powers and
duties under this Part as the Minister thinks fit, and the CEO shall
comply with any directions so given.

**(2)** A direction under subsection (1) shall not deal with carrying
out or giving effect to the powers or duties of the CEO in relation to a
particular consignment of goods or to like goods to goods in a
particular consignment but shall deal instead with the general
principles for carrying out or giving effect to the CEO\'s powers.

**(3)** Where the Minister gives a direction to the CEO, the Minister
shall:

\(a\) cause a written notice setting out particulars of the direction to
be published in the *Gazette* as soon as practicable after giving the
direction; and

\(b\) cause a copy of that notice to be laid before each House of the
Parliament within 15 sitting days of that House after the publication of
the notice in the *Gazette*.

**(4)** A notice setting out particulars of the direction is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.

***Division 2---Consideration of anti-dumping matters by the CEO***

**269TBA** **What this Division is about**

+-----------------------------------------------------------------------+
| This Division:                                                        |
|                                                                       |
| -   sets out the requirements for making applications for the         |
|     publication of dumping duty notices and countervailing duty       |
|     notices;                                                          |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   sets out the procedures to be followed, and the matters to be     |
|     considered, by the CEO in conducting investigations in relation   |
|     to goods covered by such applications, for the purpose of making  |
|     a report of the Minister                                          |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   empowers Customs, in certain cases, to take securities in respect |
|     of interim duty that may become payable, in order to prevent      |
|     injury to Australian industry while such investigations continue; |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   sets out the circumstances in which the CEO must terminate such   |
|     investigations.                                                   |
+-----------------------------------------------------------------------+

**269TB.** **Application for action under Dumping Duty Act**

**(1)** Where:

\(a\) a consignment of goods:

\(i\) has been imported into Australia;

\(ii\) is likely to be imported into Australia; or

\(iii\) may be imported into Australia, being like goods to goods to
which subparagraph (i) or (ii) applies;

\(b\) there is, or may be established, an Australian industry producing
like goods; and

\(c\) a person believes that there are, or may be, reasonable grounds
for the publication of a dumping duty notice or a countervailing duty
notice in respect of the goods in the consignment;

that person may, by application in writing lodged with the Customs in
accordance with subsection (5), request that the Minister publish that
notice in respect of the goods in the consignment.

**(2)** Where:

\(a\) a consignment of goods produced or manufactured in a country other
than Australia:

\(i\) has been imported into Australia;

\(ii\) is likely to be imported into Australia; or

\(iii\) may be imported into Australia, being like goods to goods to
which subparagraph (i) or (ii) applies; and

\(b\) there is, in a third country, an industry that produces or
manufactures like goods for export to Australia; and

\(c\) the Government of that third country believes that there are, or
may be, reasonable grounds for the publication of a dumping duty notice
or a countervailing duty notice in respect of the goods in the
consignment;

the Government of that third country may, by application in writing
lodged with the Customs in accordance with subsection (5), request that
the Minister publish that notice in respect of the goods in the
consignment.

**(2A)** During the period after receiving an application for a dumping
duty notice and before giving public notice under subsection 269TC(4) of
a decision not to reject the application, the CEO must notify the
government of the country, or of each country, whose exporters are
nominated in the application.

**(2B)** During the period after receiving an application for a
countervailing duty notice and before giving public notice under
subsection 269TC(4) of a decision not to reject the application, the CEO
must notify:

\(a\) the government of the country, or of each country, whose exporters
are nominated in the application; and

\(b\) the government of any other country from which countervailable
subsidies are alleged to have been received.

**(2C)** A notification by the CEO under subsection (2B) must include an
invitation to consult with the CEO in relation to whether:

\(a\) any countervailable subsidies exist; and

\(b\) any such subsidies, if found to exist, are causing or are likely
to cause material injury of a kind referred to in paragraph 269TJ(1)(b)
or 269TK(1)(b);

with the aim of arriving at a mutually agreed solution.

**(3)** An applicant may, at any time before the Minister decides:

\(a\) to publish a dumping duty notice or a countervailing duty notice
in respect of an exporter to whom the application extends; or

\(b\) to accept an undertaking from an exporter to whom the application
extends or from a country to whose exporters the application extends:

by notice in writing lodged with Customs in accordance with subsection
(5), withdraw the application so far as it extends to that exporter, or
to exporters exporting from that country, as the case requires.

**(4)** An application under subsection (1) or (2) or a notice under
subsection (3) withdrawing such an application must:

\(a\) be in writing; and

\(b\) be in an approved form; and

\(c\) contain such information as the form requires; and

\(d\) be signed in the manner indicated on the form; and

\(e\) in the case of an application under subsection (1)---be supported
by a sufficient part of the domestic industry.

**(5)** An application, or a notice withdrawing an application, may be
lodged with the Customs:

\(a\) by giving it to an officer doing duty in relation to the receipt
of dumping applications; or

\(b\) by posting it by pre-paid post to a postal address specified in
the approved form; or

\(c\) by sending it by electronic facsimile to a facsimile number
specified in the approved form;

and the application or notice is taken to have been received by Customs
when the application or notice, or a facsimile of the application or
notice, is first received by an officer doing duty in relation to the
receipt of dumping applications.

**(6)** An application under subsection (1) in relation to a consignment
of goods is taken to be supported by a sufficient part of the domestic
industry if the CEO is satisfied that persons (including the applicant)
who produce or manufacture like goods in Australia and who support the
application:

\(a\) account for more than 50% of the total production or manufacture
of like goods produced or manufactured by that portion of the Australian
industry that has expressed either support for, or opposition to, the
application; and

\(b\) account for not less than 25% of the total production or
manufacture of like goods in Australia.

**269TC** **Consideration of Application**

**(1)** The CEO shall, within 20 days after Customs receives an
application under subsection 269TB(1) in respect of goods, examine the
application and, if the CEO is not satisfied, having regard to the
matters contained in the application and to any other information that
the CEO considers relevant:

\(a\) that the application complies with subsection 269TB(4); or

\(b\) (b)that there is, or is likely to be established, an Australian
industry in respect of like goods; or

\(c\) that there appear to be reasonable grounds:

\(i\) for the publication of a dumping duty notice or a countervailing
duty notice, as the case requires, in respect of the goods the subject
of the application; or

\(ii\) for the publication of such a notice upon the importation into
Australia of such goods;

he or she shall reject the application and inform the applicant, by
notice in writing, accordingly.

**(2)** The CEO shall, within 20 days, after Customs receives an
application by the Government of a country under subsection 269TB(2) in
respect of goods, examine the application and, if the CEO is not
satisfied, having regard to the matters contained in the application and
to any other information that the CEO considers relevant:

\(a\) that the application complies with subsection 269TB(4); or

\(b\) that there is a producer or manufacturer of like goods in that
country who exports such goods to Australia; or

\(c\) that there appear to be reasonable grounds:

\(i\) for the publication of a dumping duty notice or a countervailing
duty notice, as the case requires, in respect of the goods the subject
of the application; or

\(ii\) for the publication of such a notice upon the importation into
Australia of such goods;

he or she shall reject the application and inform the applicant, by
notice in writing, accordingly.

**(2A)** If an applicant, after lodging an application under section
269TB, decides to give Customs further information in support of that
application without having been requested to do so:

\(a\) the information may be lodged with Customs, in writing, in
accordance with section 269TB; and

\(b\) the information is taken to have been received by Customs in
accordance with subsection 269TB(5); and

\(c\) this Part has effect as if:

\(i\) the application had included that further information; and

\(ii\) the application had only been lodged when that further
information was lodged; and

\(iii\) the application had only been received when that further
information was received.

**(3)** Where, in accordance with subsection (1) or (2), the CEO rejects
an application, the notice informing the applicant of that rejection:

\(a\) shall state the reasons why the CEO was not satisfied of one or
more of the matters set out in that subsection; and

\(b\) shall inform the applicant of the applicant\'s right within 30
days of the receipt of the notice, to apply for a review of the CEO's
decision by the Review Officer under Division 9.

**(4)** If the CEO decides not to reject an application under subsection
269TB(1) or (2) in respect of goods, the CEO must give public notice of
the decision:

\(a\) setting out particulars of goods the subject of the application;
and

\(b\) setting out the identity of the applicant; and

(ba) setting out the countries of export known to be involved; and

(bb) if the application is for a countervailing duty notice---also
setting out the countries from which countervailable subsidisation is
alleged to have been received; and

(bc) setting a date, which should be the date or estimated date of
publication of the notice , as the date of initiation of the
investigation; and

(bd) indicating the basis on which dumping or countervailable
subsidisation is alleged to have occurred; and

(be) summarising the factors on which the allegation of injury or
hindrance to the establishment of an industry is based; and

(bf) indicating that a report will be made to the Minister:

\(i\) within 155 days after the date of initiation of the investigation
or,

\(ii\) if the 110 days referred to in paragraph (e) is extended by the
Minister--- within the period of 155 days as similarly so extended on
the basis of the examination of exportations to Australia of goods the
subject of the application during a period specified in the notice as
the investigation period in relation to the applications; and

\(c\) inviting interested parties to lodge with the CEO, within a
specified period of not more than 40 days after the date of initiation
of the investigation, submissions concerning the publication of the
notice sought in the application; and

\(d\) stating that if the CEO, in accordance with section 269TD, makes a
preliminary affirmative determination in relation to the application, he
or she may apply provisional measures, including the taking of
securities under section 42, in respect of interim duty that may become
payable on the importation of the goods the subject of the application;
and

\(e\) stating that:

\(i\) within 110 days after the date of initiation of the investigation;
or

\(ii\) such longer period as the Minister allows under section 269ZHI;

the CEO, in accordance with section 269TDAA, will place on the public
record a statement of the essential facts on which the CEO proposes to
base a recommendation to the Minister; and

\(f\) inviting interested parties to lodge with the CEO, within 20 days
of that statement being placed on the public record, submissions in
response to that statement; and

\(g\) indicating the address at which, or the manner in which,
submissions under paragraph (c) or (f) can be lodged; and

\(h\) stating that if the Minister decides to publish or not to publish
a dumping duty notice or a countervailing duty notice after considering
the report referred to in paragraph (bf), certain persons will have the
right to seek review of that decision in accordance with Division 9.

**(5)** Information required to be included in the notice under
subsection (4) may be included in a separate report to which the notice
makes reference.

**(6)** Despite the fact that a notice under this section specifies a
particular period for interested parties to lodge submissions with the
CEO, if the CEO is satisfied, by representation in writing by an
interested party:

\(a\) that a longer period is reasonably required for that party to make
a submission; and

\(b\) that allowing a longer period will be practicable in the
circumstances;

the CEO may notify the party, in writing, that a specified further
period will be allowed for the party to lodge a submission.

**(7)** As soon as practicable after the CEO decides not to reject an
application under section 269TB for a dumping duty notice or a
countervailing duty notice, the CEO must ensure that a copy of the
application, or of so much of the application as is not claimed to be
confidential or to constitute information whose publication would
adversely affect a person\'s business or commercial interests, is made
available:

\(a\) unless paragraph (b) applies---to all persons known to be
exporters of goods the subject of the application and to the government
of each country of export; or

\(b\) if the number of persons known to be exporters of goods the
subject of the application is so large that it is not practicable to
provide a copy of the application, or of so much of the application as
is not the subject of such a claim, to each of them---to the government
of each country of export and to each relevant trade association.

**269TD** **Preliminary affirmative determinations**

**(1)** At any time not earlier than 60 days after the date of
initiation of an investigation as to whether there are sufficient
grounds for the publication of a dumping duty notice, or a
countervailing duty notice, in respect of goods the subject of an
application under section 269TB the CEO may, if he or she is satisfied;

\(a\) that there appears to be sufficient grounds for the publication of
such a notice, or

\(b\) that it appears there will be sufficient grounds for the
publication of such a notice subsequent to the importation into
Australia of such goods;

make a determination (a ***preliminary affirmative determination***) to
that effect.

**(2)** Subject to subsection (3), in deciding whether to make such a
preliminary affirmative determination, the CEO:

\(a\) must have regard to:

\(i\) the application concerned; and

\(ii\) any submissions concerning publication of the notice that are
received by Customs within 40 days after the date of initiation of the
investigation; and

\(b\) may have regard to any other matters that the CEO considers
relevant.

**(3)** The CEO is not obliged to have regard to any submission that is
received by Customs after the end of the period referred to in
subparagraph (2)(a)(ii) if to do so would, in the CEO's opinion, prevent
the timely consideration of the question whether or not to make a
preliminary affirmative determination.

**(4)** If the CEO makes a preliminary affirmative determination:

\(a\) the CEO must give public notice of that determination; and

\(b\) Customs may, at the time of that determination or at any later
time during the investigation, require and take securities under section
42 in respect of interim duty that may become payable if the officer of
Customs taking the securities is satisfied that it is necessary to do so
to prevent material injury to an Australian industry occurring while the
investigation continues.

**(5)** If Customs decides to require and take securities under
subsection (4), the CEO must give public notice of that decision.

**269TDAA** **Statement of essential facts in relation to investigation
of application under section 269TB**

**(1)** The CEO must, within 110 days after the date of initiation of an
investigation arising from an application under section 269TB or such
longer period as the Minister allows under section 269ZHI, place on the
public record a statement of the facts (the ***statement of essential
facts***) on which the CEO proposes to base a recommendation to the
Minister in relation to that application.

**(2)** Subject to subsection (3) in formulating the statement of
essential facts, the CEO;

\(a\) must have regard to:

\(i\) the application concerned; and

\(ii\) any submissions concerning publication of the notice that are
received by Customs within 40 days after the date of initiation of the
investigation; and

\(b\) may have regard to any other matters the CEO considers relevant.

**(3)** The CEO is not obliged to have regard to a submission received
by Customs after the end of the period referred to in subparagraph
(2)(a)(ii) if to do so would, in the CEO's opinion, prevent the timely
placement of the statement of essential facts on the public record.

**Termination of investigations**

**269TDA** **CEO must terminate if all dumping margins are negligible**

**(1)** If:

\(a\) application is made for a dumping duty notice; and

\(b\) in an investigation, for the purposes of the application, of an
exporter to Australia of goods the subject of the application, the CEO
is satisfied that:

\(i\) there has been no dumping by the exporter of any of those goods;
or

there has been dumping by the exporter of some or all of those goods,
but the dumping

\(ii\) margin for the exporter, or each such dumping margin, worked out
under section 269TACB, when expressed as a percentage of the export
price or weighted average of export prices used to establish that
dumping margin, is less than 2%;

the CEO must terminate the investigation so far as it relates to the
exporter.

***CEO must terminate if countervailable subsidisation is negligible***

**(2)** If:

\(a\) application is made for a countervailing duty notice; and

\(b\) in an investigation, for the purposes of the application, of an
exporter to Australia of goods the subject of the application, the CEO
is satisfied that:

\(i\) no countervailable subsidy has been received in respect of any of
those goods; or

\(ii\) a countervailable subsidy has been received in respect of some or
all of those goods but it never, at any time after the start of the
investigation period, exceeded the negligible level of countervailable
subsidy under subsection (16);

the CEO must terminate the investigation so far as it relates to the
exporter.

***CEO must terminate if negligible volumes of dumping are found***

**(3)** If:

\(a\) application is made for a dumping duty notice; and

\(b\) in an investigation for the purposes of the application the CEO is
satisfied that the total volume of goods the subject of the application:

\(i\) that have been, or may be, exported to Australia over a reasonable
examination period from a particular country of export; and

\(ii\) that have been, or may be, dumped;

is negligible;

the CEO must terminate the investigation so far as it relates to that
country.

***What is a negligible volume of dumped goods?***

**(4)** For the purpose of subsection (3), the total volume of goods the
subject of the application that have been, or may be, exported to
Australia over a reasonable examination period from the particular
country of export and dumped is taken to be a negligible volume if:

\(a\) when expressed as a percentage of the total Australian import
volume, it is less than 3%; and

\(b\) subsection (5) does not apply in relation to those first-mentioned
goods.

***Aggregation of volumes of dumped goods***

**(5)** For the purposes of subsection (4), this subsection applies in
relation to goods the subject of the application that have been, or may
be, exported to Australia over a reasonable examination period from the
particular country of export and dumped if:

\(a\) the volume of such goods that have been, or may be, so exported
from that country and dumped, when expressed as a percentage of the
total Australian import volume, is less than 3%; and

\(b\) the volume of goods the subject of the application that have been,
or may be, exported to Australia over that period from another country
of export and dumped, when expressed as a percentage of the total
Australian import volume, is also less than 3%; and

\(c\) the total volume of goods the subject of the application that have
been, or may be, exported to Australia over that period from the country
to which paragraph (a) applies, and from all countries to which
paragraph (b) applies, and dumped, when expressed as a percentage of the
total Australian import volume, is more than 7%.

***Negligible dumping margins to count in determining volume***

**(6)** The fact that the dumping margin, or each of the dumping
margins, in relation to a particular exporter, when expressed as a
percentage of the export price or weighted average of export prices used
to establish that dumping margin, is less than 2%, does not prevent
exports by that exporter being taken into account:

\(a\) in working out the total volume of goods that have been, or may
be, exported from a country of export and dumped; and

\(b\) in aggregating, for the purposes of subsection (5), the volumes of
goods that have been, or may be, exported from that country of export
and other countries of export and dumped.

***CEO must terminate if negligible volumes of countervailable
subsidisation are found***

**(7)** If:

\(a\) application is made for a countervailing duty notice; and

\(b\) in an investigation for the purposes of the application, the CEO
is satisfied that the total volume of goods the subject of the
application:

\(i\) that have been, or may be, exported to Australia from a particular
country of export during a reasonable examination period; and

\(ii\) in respect of which a countervailable subsidy has been, or may
be, received;

is negligible; the CEO must terminate the investigation so far as it
relates to that country.

***What is a negligible volume of subsidised goods?***

**(8)** For the purposes of subsection (7), the total volume of goods
the subject of the application for a countervailing duty notice that
have been, or may be, exported to Australia over a reasonable
examination period from the particular country of export and in respect
of which a countervailable subsidy has been received is taken to be a
negligible volume if:

\(a\) that country of export is not a developing country and that total
volume, when expressed as a percentage of the total Australian import
volume, is less than 3%; or

\(b\) that country of export is a developing country and that total
volume, when expressed as a percentage of the total Australian import
volume, is less than 4%;

and subsections (9), (10) and (11) do not apply in relation to those
first-mentioned goods.

***Aggregation of volumes of subsidised goods from countries other than
developing countries***

**(9)** For the purposes of subsection (8), this subsection applies in
relation to goods the subject of the application that have been, or may
be, exported to Australia over a reasonable examination period from the
particular country of export and in respect of which a countervailable
subsidy has been, or may be received, if:

\(a\) the country of export is not a developing country; and

\(b\) the volume of such goods:

\(i\) that have been, or may be, exported to Australia over that period
from that country; and

\(ii\) in respect of which a countervailable subsidy has been, or may
be, received;

when expressed as a percentage of the total Australian import volume, is
less than 3%; and

\(c\) the volume of goods the subject of the application:

\(i\) that have been, or may be, exported to Australia over that period
from another country that is not a developing country; and

\(ii\) in respect of which a countervailable subsidy has been, or may
be, received;

when expressed as a percentage of the total Australian import volume, is
also less than 3%; and

\(d\) the total volume of goods the subject of the application:

\(i\) that have been, or may be, exported to Australia over that period
from the country to which paragraph (b) applies and from all countries
to which paragraph (c) applies; and

\(ii\) in respect of which a countervailable subsidy has been, or may
be, received;

when expressed as a percentage of the total Australian import volume, is
more than 7%.

***Aggregation of volumes of subsidised goods from developing
countries***

**(10)** For the purposes of subsection (8), this subsection applies in
relation to goods the subject of the application that have been, or may
be, exported to Australia over a reasonable examination period from the
particular country of export and in respect of which a countervailable
subsidy has been, or may be, received if:

\(a\) the country of export is a developing country; and

\(b\) the volume of such goods:

\(i\) that have been, or may be, exported to Australia over that period
from that country; and

\(ii\) in respect of which a countervailable subsidy has been, or may
be, received;

when expressed as a percentage of the total Australian import volume, is
less than 4%; and

\(c\) the volume of goods the subject of the application:

\(i\) that have been, or may be, exported to Australia over that period
from another country that is a developing country; and

\(ii\) in respect of which a countervailable subsidy has been, or may
be, received;

when expressed as a percentage of the total Australian import volume, is
also less than 4%; and

\(d\) the total volume of goods the subject of the application:

\(i\) that have been, or may be, exported to Australia over that period
from the country to which paragraph (b) applies and from all countries
to which paragraph (c) applies; and

\(ii\) in respect of which a countervailable subsidy has been, or may be
received;

when expressed as a percentage of the total Australian import volume, is
more than 9%.

***Aggregation of volumes of subsidised goods from member countries that
are developing countries***

**(11)** For the purposes of subsection (8), this subsection applies in
relation to goods the subject of the application that have been, or may
be, exported to Australia over a reasonable examination period from the
particular country of export and in respect of which a countervailable
subsidy has been, or may be, received if:

\(a\) the country of export is a member country and a developing
country; and

\(b\) the volume of such goods;

\(i\) that have been, or may be exported to Australia over that period
from that country; and

\(ii\) in respect of which a countervailable subsidy has been, or may
be, received;

when expressed as a percentage of the total Australian import volume, is
less than 4%; and

\(c\) the volume of goods the subject of the application:

\(i\) that have been, or may be, exported to Australia over that period
from another member country that is a developing country; and

\(ii\) in respect of which a countervailable subsidy has been, or may
be, received;

when expressed as a percentage of the total Australian import volume, is
less than 4%; and

\(d\) the volume of goods the subject of the application:

\(i\) that have been, or may be, exported to Australia over that period
from the country to which paragraph (b) applies and from all countries
to which paragraph (c) applies; and

\(ii\) in respect of which a countervailable subsidy has been, or may
be, received;

when expressed as a percentage of the total Australian import volume, is
more than 9%.

***Negligible countervailable subsidies to count in determining
volume***

**(12)** The fact that the level of countervailable subsidy that has
been, or may be, received in respect of goods that have been, exported,
or may be exported, to Australia from a country of export is a
negligible level under subsection (16) does not prevent exports from
that country being taken into account:

\(a\) in working out the total volume of goods that have been, or may
be, exported from a country of export and in respect of which a
countervailable subsidy has been, or may be, payable; and

\(b\) in aggregating, for the purposes of subsection (9), (10) or (11),
volumes of goods that have been, or may be, exported to Australia from
that country and other countries and in respect of which a
countervailing subsidy has been, or may be, received.

***CEO must terminate investigation if dumping causes negligible
injury***

**(13)** If:

\(a\) 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, CEO is satisfied that:

\(i\) there has been, or may be, dumping of some or all of those goods;
but

\(ii\) 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 dumping is
negligible;

the CEO must terminate the investigation so far as it relates to that
country.

***CEO must terminate investigation if subsidisation causes negligible
injury***

**(14)** 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 CEO is satisfied
that:

\(i\) a countervailable subsidy has been, or may be, received in respect
of some or all of those goods; but

\(ii\) the injury, if any, to an Australian industry or an industry in a
third country has been, or may be, caused by the subsidisation is
negligible;

the CEO must terminate the investigation so far as it relates to that
country.

***CEO must give public notice of termination decisions***

**(15)** If the CEO decides to terminate an investigation so far as it
relates to a particular exporter or country of export, the CEO 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 CEO's decision by the Review Officer 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** **CEO to have regard to same considerations as Minister**

**(1)** In this section:

***decision*** means:

\(a\) a decision of the CEO under section 269TC or 269TD; or

\(b\) a decision contained in a report by the CEO under section 269ZZL.

***recommendation*** means:

\(a\) a recommendation included in a report prepared by the CEO under
section 269TEA, 269ZDA, 269ZG or 269ZHF; or

\(b\) a recommendation by the CEO to the Minister under section 269TEB
or 269X.

**(2)** If the CEO 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 CEO 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 CEO's determination of a
matter in respect of those goods as if:

\(a\) (a)the CEO'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 CEO 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 CEO has initiated an investigation in respect of the
application under section 269TC;

the CEO must, after holding such an investigation and before the end of
the period for reporting to the Minister that is referred to in
paragraph 269TC(4)(bf), 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 CEO'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 Australian 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 CEO's report in relation to an
application under section 269TB for publication of a dumping duty notice
or a countervailing duty notice, the CEO:

\(a\) must have regard to:

\(i\) the application; and

\(ii\) any submission concerning the publication of that notice to which
the CEO 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 Customs within 20 days after the placing of that statement
on the public record; and

\(b\) may have regard to any other matters that the CEO considers to be
relevant.

**(4)** The CEO is not obliged to have regard to any submission made in
response to the statement of essential facts that is received by Customs
after the end of the period referred to in subparagraph (3)(a)(iv) if to
do so would, in the CEO's opinion, prevent the timely preparation of the
report to the Minister.

**(5)** The report to the Minister must include a statement of the CEO'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** **CEO 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
CEO the terms in which the government or exporter would be prepared to
give an undertaking to the Minister.

**(2)** The CEO 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 CEO is so satisfied---recommend to the Minister that he or
she accept the undertaking; or

\(b\) if the CEO 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 CEO 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 CEO, the
CEO 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 CEO 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 CEO 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 CEO 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 CEO to the Minister
under section 269TEA.

**(11)** If the CEO does not recommend the acceptance of an undertaking
under this section, the CEO 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 CEO. 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

\(ii\) in a case where security has been taken under section 42 in
respect of any interim duty that may become payable on the goods under
section 8 of the Dumping Duty Act---material injury to an Australian
industry producing like goods would or might have been caused if the
security had not been taken;

the Minister may, by public notice, declare that Section 8 of that Act
applies to those goods.

**(2)** Where the Minister is satisfied, as to goods of any kind, that:

\(a\) the amount of the export price of like goods that have already
been exported to Australia is less than the amount of the normal value
of those goods, and the amount of the export price of like goods that
may be exported to Australia in the future may be less than the normal
value of the goods; and

\(b\) because of that, 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;

the Minister may, by public notice (whether or not he or she has made,
or proposes to make, a declaration under subsection (1) in respect of
like goods that have been exported to Australia), declare that section 8
of the Dumping Duty Act applies to like goods:

\(c\) that are exported to Australia after the date of publication of
the notice or such later date as is specified in the notice; and

\(d\) the amount of the export price of which is less than the amount of
their normal value.

**(3)** Where:

\(a\) a notice under subsection (1) declares particular goods to be
goods to which section 8 of the Dumping Duty Act applies; or

\(b\) a notice under subsection (2) declares like goods in relation to
goods of a particular kind to be goods to which that section applies;

the notice must, subject to subsection (3A), include a statement of the
respective amounts that the Minister ascertained, at the time of
publication of the notice:

\(c\) was or would be the normal value of the goods to which the
declaration relates; and

\(d\) was or would be the export price of those goods; and

\(e\) was or would be the non-injurious price of those goods.

**(3A)** If any person who has provided information to assist the
Minister to ascertain the normal value, export price or non-injurious
price of goods to which a declaration under subsection (1) or (2)
relates claims, in writing, that the information is confidential or that
the inclusion in a notice under that subsection of that value or price
would adversely affect the person\'s business or commercial interests:

\(a\) in accordance with subsection 269ZI(9) the Minister is not
required to include in the notice a statement of that value or price;
but

\(b\) upon request the CEO may notify that value or price to persons
who, in the CEO\'s opinion, would be affected parties in any review of
the rate of interim duty imposed on like goods to the goods to which the
declaration relates.

**(3B)** In ascertaining a normal value and export price for goods of
the residual exporter, the Minister must ensure that:

\(a\) the normal value does not exceed the weighted average of normal
values for like goods of selected exporters from the same country of
export; and

\(b\) the export price is not less than the weighted average of export
prices for like goods of selected exporters from the same country of
export.

**(3C)** For the purposes of subsection (3B), the weighted average of
normal values and the weighted average of export prices of the selected
exporters must not include any normal value or export price if:

\(a\) in a comparison under section 269TACB involving that normal value
or export price, the Minister has determined:

\(i\) that there is no dumping; or

\(ii\) that the dumping margin, when expressed as a percentage of the
export price or weighted average of export prices used to establish that
dumping margin, is less than 2%; or

\(b\) that normal value was determined under subsection 269TAC(6) or
that export price was determined under subsection 269TAB(3).

**(3D)** If the export of a consignment of goods to Australia by an
exporter has been under consideration by the Minister so as to decide
whether or not to publish a dumping duty notice under this section in
relation to the goods in the consignment or to like goods, the Minister
may give notice, in writing, to the exporter stating that:

\(a\) the Minister is of the opinion that it would be appropriate for
the exporter to give an undertaking in accordance with subsection (4) to
the Minister; and

\(b\) an undertaking, in the terms set out in the notice, would be
satisfactory to the Minister**.**

**(4)** Whether or not a notice has been given to an exporter, the
Minister may defer the decision to publish or not to publish a dumping
duty notice covering that exporter, for so long as the Minister
considers appropriate, if the exporter offers, and the Minister accepts,
an undertaking that the exporter will so conduct future trade to
Australia in like goods as to avoid:

\(a\) causing or threatening material injury to an Australian industry
producing like goods; or

\(b\) materially hindering the establishment of such an Australian
industry.

**(5)** In giving a notice, and in considering the terms of any proposed
undertaking, the Minister must have regard to the desirability that any
price increase to which the undertaking relates is limited to an amount
such as the total price of the goods is not more than the non-injurious
price of the goods.

**(6)** The Minister:

\(a\) may give a notice to an exporter under subsection (3D) whether or
not the giving of such a notice has been recommended by the CEO in a
report under section 269TEA; and

\(b\) may accept an undertaking whether or not the acceptance of such an
undertaking has been recommended by the CEO in a recommendation under
section 269TEB: and

\(c\) must not give a notice to an exporter under subsection (3D), or
accept an undertaking from an exporter, before a preliminary affirmative
determination , or an equivalent determination in an investigation
conducted under section 269TAG, has been made that extends to that
exporter: and

\(d\) must give public notice of any undertaking so accepted.

**(7)** The acceptance by the Minister of an undertaking may be subject
to conditions that include, but are not limited to, conditions relating
to:

\(a\) giving the Minister, on an agreed basis, information that is
relevant to the fulfilment of the undertaking; and

\(b\) providing the Minister with appropriate access to such
information.

**(8)** The acceptance by the Minister of an undertaking from an
exporter does not prevent the exporter requesting the Minister to
determine whether, had the undertaking not been accepted, the Minister
would have published a dumping duty notice or would have decided not to
publish such a notice.

**(9)** The Minister must, if an exporter makes such a request, and may,
on his or her own initiative, determine whether he or she would have
published a dumping duty notice or would have decided not to publish
such a notice if the undertaking had not been accepted.

**(10)** Subsection (9) does not imply that the Minister is required to
make a determination under that subsection before the Minister has
received a report of the CEO in relation to the matter.

**(11)** If the Minister determines under subsection (9) that he or she
would have decided not to publish a dumping duty notice, the undertaking
automatically lapses.

**269TH** **Third country dumping duties**

**(1)** Subject to section 269TN, where the Minister is satisfied, as to
any goods produced or manufactured in a particular country 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 the goods; and

\(b\) because of that:

\(i\) material injury to an industry in a third country engaged in the
production or manufacture of like goods has been or is being caused or
is threatened; or

\(ii\) in a case where security has been taken under section 42 in
respect of any interim duty that may become payable on the goods under
section 9 of the Dumping Duty Act---material injury to an industry in a
third country engaged in the production or manufacture of like goods
would or might have been caused if the security had not been taken;

the Minister, if requested by the government of the third country so to
do, may, by public notice, declare that section 9 of that Act applies to
those goods.

**(2)** Where the Minister is satisfied, as to goods of any kind
produced or manufactured in a particular country that:

\(a\) the amount of the export price of like goods so produced or
manufactured that have already been exported to Australia is less than
the amount of the normal value of those goods, and the amount of the
export price of like goods so produced or manufactured that may be
exported to Australia in the future may be less than the normal value of
the goods; and

\(b\) because of that, material injury to an industry in a third country
engaged in the production or manufacture of like goods has been or is
being caused or is threatened;

the Minister, if requested by the Government of the third country so to
do, may, by public notice (whether or not he or she has made, or
proposes to make, a declaration under subsection (1) in respect of like
goods so manufactured or produced that have been exported to Australia),
declare that section 9 of the Dumping Duty Act applies to like goods so
produced or manufactured:

\(c\) that are exported to Australia after the date of publication of
the notice or such later date as is specified in the notice; and

\(d\) the amount of the export price of which is less than the amount of
their normal value.

**(3)** Where:

\(a\) a notice under subsection (1) declares particular goods to be
goods to which section 9 of the Dumping Duty Act applies; or

\(b\) a notice under subsection (2) declares like goods in relation to
goods of a particular kind to be goods to which that section applies;

the notice must, subject to subsection (4), include a statement of the
respective amounts that the Minister ascertained at the time of
publication of the notice:

\(c\) was or would be the normal value of the goods to which the
declaration relates; and

\(d\) was or would be the export price of those goods; and

\(e\) was or would be the non-injurious price of those goods.

**(4)** If any person who has provided information to assist the
Minister to ascertain the normal value, export price or non-injurious
price of goods to which a declaration under subsection (1) or (2)
relates claims, in writing, that the information is confidential or that
the inclusion in a notice under that subsection of that value or price
would adversely affect the person\'s business or commercial interests:

\(a\) in accordance with subsection 269ZI(9), the Minister is not
required to include in the notice a statement of that value or price;
but

\(b\) upon request the CEO may notify that value or price to persons
who, in the CEO\'s opinion, would be affected parties in any review of
the rate of interim duty imposed on like goods to the goods to which the
declaration relates.

**(5)** In ascertaining a normal value and export price for goods of the
residual exporter, the Minister must ensure that:

\(a\) the normal value does not exceed the weighted average of normal
values for like goods of selected exporters from the same country of
export; and

\(b\) the export price is not less than the weighted average of export
prices for like goods of selected exporters from the same country of
export.

**(6)** For the purposes of subsection (5), the weighted average of
normal values and the weighted average of export prices of the selected
exporters must not include any normal value or export price if:

\(a\) in a comparison under section 269TACB involving that normal value
or export price, the Minister has determined:

\(i\) that there is no dumping; or

\(ii\) that the dumping margin, when expressed as a percentage of the
export price or weighted average of export prices used to establish that
dumping margin, is less than 2%; or

\(b\) that normal value was determined under subsection 269TAC(6) or
that export price was determined under subsection 269TAB(3).

**269TJ** **Countervailing duties**

**(1)** Subject to section 269TN, where the Minister is satisfied, as to
any goods that have been exported to Australia, that:

\(a\) a countervailable subsidy has been received in respect of the
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

\(ii\) in a case where security has been taken under section 42 in
respect of any interim duty that may become payable on the goods under
section 10 of the Dumping Duty Act---material injury to an Australian
industry producing like goods would or might have been caused if the
security had not been taken;

the Minister may, by public notice, declare that section 10 of that Act
applies to those goods.

**(2)** Where the Minister is satisfied, as to goods of any kind that:

\(a\) a countervailable subsidy:

\(i\) has been received in respect of goods the subject of the
application that have already been exported to Australia; and

\(ii\) may be received in respect of like goods that may be exported to
Australia in the future; and

\(b\) because of that, material injury to an Australian industry
producing like goods has been or is being caused or is being threatened,
or the establishment of an Australian industry producing like goods has
been or may be materially hindered;

the Minister may, by public notice, (whether or not he or she has made,
or proposes to make, a declaration under subsection (1) in respect of
like goods that have been exported to Australia), declare that section
10 of the Dumping Duty applies to like goods:

\(c\) that are exported to Australia after the date of publication of
the notice or such later date as is specified in the notice; and

\(d\) in respect of which a countervailable subsidy is received.

**(2A)** If the export of a consignment of goods to Australia has been
under consideration by the Minister so as to decide whether or not to
publish a countervailing duty notice under this section in relation to
the goods in the consignment or to like goods, the Minister may give
notice, in writing, to the government of the country of export or to the
exporter stating that:

\(a\) the Minister is of the opinion that it would be appropriate for
the government or the exporter to give an undertaking in accordance with
subsection (3) to the Minister; and

\(b\) an undertaking the terms set out in the notice, would be
satisfactory to the Minister.

**(3)** Whether or not a notice has been given to a government or to an
exporter in respect of goods in the consignment or like goods, the
Minister may defer the decision to publish or not to publish a
countervailing duty notice covering those goods if the Minister is given
and accepts an undertaking to which subsection (3A) applies.

**(3A)** This subsection applies:

\(a\) to an undertaking given by a government---if it is an undertaking
that the government will, in relation to any export trade to Australia
in like goods, review any countervailable subsidy delivered by that
government and make any changes found to be necessary to avoid:

\(i\) causing or threatening material injury to an Australian industry
producing like goods; or

\(ii\) materially hindering the establishment of such an Australian
industry; and

\(b\) to an undertaking by an exporter---if it is an undertaking that
the exporter will so conduct future trade to Australia in like goods as
to avoid:

\(i\) causing or threatening material injury to an Australian industry
producing like goods; or

\(ii\) materially hindering the establishment of such an Australian
industry.

**(3B)** In giving a notice, and in considering the terms of any
proposed undertaking, the Minister must have regard to the desirability
that any price increase arising from the undertaking is limited to an
amount such that the total price of the goods is not more than the
non-injurious price of the goods.

**(3C)** The Minister:

\(a\) may give a notice under subsection (2A) whether or not the giving
of such a notice has been recommended by the CEO in a recommendation
under section 269TEA: and

\(b\) may accept an undertaking whether or not the acceptance of such an
undertaking has been recommended by the CEO in a recommendation under
section 269TEB; and

\(c\) must not:

\(i\) give a notice to a government or exporter under subsection (2A);
or

\(ii\) accept an undertaking from a government or an exporter;

in respect of particular goods or like goods unless a preliminary
affirmative determination, or an equivalent determination in an
investigation conducted under section 269TAG, has been made to the
effect that there are grounds for publication of a countervailing duty
notice in respect of those like goods; and

\(d\) must not accept an undertaking from an exporter unless the
government of the country of export consents to the giving of the
undertaking; and

\(e\) must give public notice of any undertaking so accepted.

**(3D)** The acceptance by the Minister of an undertaking may be subject
to conditions that include, but are not limited to, conditions relating
to:

\(a\) giving the Minister, on an agreed basis, information that is
relevant to the fulfilment of the undertaking; and

\(b\) providing the Minister with appropriate access to such
information.

**(3E)** The acceptance by the Minister of an undertaking from an
exporter does not prevent the exporter requesting the Minister to
determine whether, had the undertaking not been accepted, the Minister
would have published a countervailing duty notice or would have decided
not to publish such a notice.

**(3F)** The Minister must, if an exporter makes such a request, and
may, on his or her own initiative, determine whether he or she would
have published a countervailing duty notice or would have decided not to
publish such a notice if the undertaking had not been accepted.

**(3G)** Subsection (3F) does not imply that the Minister is required to
make a determination under that subsection before the Minister has
received a report from the CEO in relation to the matter.

**(3H)** If the Minister determines under subsection (3F) that he or she
would have decided not to publish a countervailing duty notice, the
undertaking automatically lapses.

**(11)** If a notice under subsection (1) or (2) declares particular
goods to be goods to which section 10 of the Dumping Duty Act applies,
the notice must, subject to subsection (12), include a statement setting
out:

\(a\) the amount of countervailable subsidy that the Minister
ascertained, at the time of publication of the notice, had been or would
be received in respect of the goods to which the notice relates; and

\(b\) the amount that the Minister has ascertained, at that time, was or
would be the non-injurious price of the goods.

**(12)** If any person who has provided information to assist the
Minister to ascertain:

\(a\) the amount of any countervailable subsidy received in respect of
goods to which a declaration under subsection (1) or (2) relates; or

\(b\) the non-injurious price of any goods to which a declaration under
subsection (1) or (2) relates;

claims, in writing, that the information is confidential or that the
inclusion in a notice under that subsection of the amount of that
subsidy~~,~~ or of the amount of that non-injurious price would
adversely affect the person\'s business or commercial interests:

\(c\) in accordance with subsection 269ZI(9), the Minister is not
required to include a statement of that amount or that price in the
notice; but

\(d\) upon request the CEO may provide a statement of that amount or
that price to persons who, in the CEO\'s opinion, would be affected
parties in any review of the rate of interim duty imposed on like goods
to the goods to which the declaration relates.

**269TJA** **Concurrent dumping and subsidy**

**(1)** Where the Minister is satisfied, as to any goods that have been
exported to Australia:

\(a\) that the amount of the export price of the goods is less than the
amount of the normal value of those goods; and

\(b\) that a countervailable subsidy has been received in respect of the
goods; and

\(c\) that, because of the combined effect of the difference between the
2 amounts referred to in paragraph (a) and of the subsidy referred to in
paragraph (b):

\(i\) material injury to an Australian industry producing like goods has
been or is being caused or is threatened; or

\(ii\) the establishment of an Australian industry producing like goods
has been or may be materially hindered;

the Minister may publish a notice under subsection 269TG(1), a notice
under subsection 269TJ(1) or notices under both subsections 269TG(1) and
269TJ(1) at the same time in respect of the same goods.

**(2)** Where the Minister is satisfied, as to goods of any kind:

\(a\) that the amount of the export price of like goods that have
already been exported to Australia is less than the amount of the normal
value of those goods, and the amount of the export price of like goods
that may be exported to Australia in the future may be less than the
normal value of the goods; and

\(b\) that a countervailable subsidy:

\(i\) has been received in respect of goods the subject of the
application that have already been exported to Australia; and

\(ii\) may be received in respect of like goods that may be exported to
Australia in the future; and

\(c\) that, because of the combined effect of the difference referred to
in paragraph (a) and of the subsidy referred to in paragraph (b):

\(i\) material injury to an Australian industry producing like goods has
been or is being caused or is threatened; or

\(ii\) the establishment of an Australian industry producing like goods
has been or may be materially hindered;

the Minister may publish a notice under subsection 269TG(2), a notice
under subsection 269TJ(2) or notices under both subsections 269TG(2) and
269TJ(2) at the same time in respect of the same goods.

**(3)** If the Minister has had under consideration the export of a
consignment of goods to Australia with a view to determining whether or
not notices should be published in accordance with subsection (1) or
(2), under both section 269TG and 269TJ in respect of the same goods,
the Minister may defer the decision to publish or not to publish notices
under both of those sections covering the exporter concerned if he or
she is given and accepts :

\(a\) an undertaking by the exporter under section 269TG, and an
undertaking by the exporter under section 269TJ, in respect of the same
goods; or

\(b\) an undertaking by the exporter under section 269TG and an
undertaking by the government of the country of origin, or of the
country of export, of the goods in the consignment under section 269TJ.

**(4)** If, in respect of the same consignment of goods, the Minister
accepts 2 undertakings from the exporter of the goods or an undertaking
from the exporter of the goods and an undertaking from the government of
the country of origin or the country of export of the goods, the
Minister must be satisfied that the combined effect of the undertakings
is not greater than is necessary to prevent material injury or the
recurrence of material injury to an Australian industry producing like
goods or to remove the actual or possible hindrance to the establishment
of such an Australian industry.

**269TK** **Third country countervailing duties**

**(1)** Subject to section 269TN, where the Minister is satisfied, as to
any goods produced or manufactured in a particular country that have
been exported to Australia, that:

\(a\) a countervailable subsidy has been received in respect of the
goods; and

\(b\) because of that:

\(i\) material injury to an industry in a third country engaged in the
production or manufacture of like goods has been or is being caused or
is being threatened; or

\(ii\) in a case where security has been taken under section 42 in
respect of interim duty that may become payable on the goods under this
section---material injury to an industry in a third country engaged in
the production or manufacture of like goods would or might have been
caused if the security had not been taken;

the Minister, if requested by the government of the third country so to
do, may, by public notice, declare that section 11 of the Dumping Duty
Act applies to those goods.

**(2)** Where the Minister is satisfied, as to goods of any kind
produced or manufactured in a particular country that:

\(a\) a countervailable subsidy:

\(i\) has been received in respect of goods the subject of the
application that have already been exported to Australia; and

\(ii\) may be received in respect of like goods that may be exported to
Australia in the future; and

\(b\) by reason thereof material injury to an industry in a third
country engaged in the production of like goods has been or is being
caused or is being threatened;

the Minister, if requested by the Government of the third country so to
do, may, by public notice (whether or not he or she has made, or makes,
a declaration under subsection (1) in respect of like goods that have
been exported to Australia), declare that section 11 of the Dumping Duty
Act applies to like goods:

\(c\) that are exported to Australia after the date of publication of
the notice or such later date as is specified in the notice; and

\(d\) in respect of which a countervailable subsidy is received.

**(3)** If the Minister is satisfied that adequate information as to the
amount of countervailable subsidy in relation to goods cannot be
obtained for the purposes of this section, the amount of countervailable
subsidy is to be taken to be such amount as is determined, in writing,
by the Minister.

**(4)** For the purposes of this section, the benefit accruing to an
exporter from the use of dual or multiple rates of exchange in relation
to the proceeds of export sales is to be taken to be financial
assistance paid to the exporter.

**(5)** Where a notice under subsection (1) or (2) declares particular
goods to be goods to which section 11 of the Dumping Duty Act applies,
the notice must, subject to subsection (6), include a statement setting
out:

\(a\) the amount of countervailable subsidy that the Minister
ascertained, at the time of publication of the notice, had been or would
be received in respect of the goods to which the notice relates; and

\(b\) the amount that the Minister ascertained, at that time, was or
would be the non-injurious price of goods.

**(6)** If any person who has provided information to assist the
Minister to ascertain:

\(a\) the amount of any countervailable subsidy received in respect of
goods to which a notice under subsection (1) or (2) relates; or

\(b\) the non-injurious price of such goods;

claims, in writing, that the information is confidential or that the
inclusion in a notice under that subsection of the amount of that
subsidy~~,~~ or of the amount of that non-injurious price would
adversely affect the person\'s business or commercial interests:

\(c\) in accordance with subsection 269ZI(9), the Minister is not
required to include a statement of that amount or that price in the
notice; but

\(d\) upon request the CEO may provide a statement of that amount or
that price to persons who, in the CEO\'s opinion, would be affected
parties in any review of the rate of interim duty imposed on like goods
to the goods to which the declaration relates.

**269TL** **Minister to give public notice not to impose duty**

**(1)** Where the Minister receives a recommendation from the CEO
concerning the imposition of dumping duty, third country dumping duty,
countervailing duty or third country countervailing duty on particular
goods or on goods of a like kind to particular goods and the Minister
decides, after having regard to that recommendation, not to declare
those goods to be goods to which section 8, 9, 10 or 11, as the case
requires, of the Dumping Duty Act applies, the Minister must give public
notice to that effect .

**269TM** **Periods during which certain notices and undertakings to
remain in force**

**(1)** Where a notice is published after section 17 of the *Customs
Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992*
commences under a relevant notification provision in respect of goods of
a particular kind, that notice expires 5 years after the day on which it
is published unless it is revoked before the end of that period.

**(2)** Where an undertaking is entered into after section 17 of the
*Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act
1992* commences under a relevant undertaking provision in respect of
goods of a particular kind, that undertaking expires 5 years after the
day on which it was entered into unless provision is made for its
earlier expiration.

**(3)** If:

\(a\) a notice was or is published before section 17 of the *Customs
Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992*
commences; and

\(b\) the notice is in force immediately before the commencement of that
section;

the notice expires 5 years after the day on which it was published
unless it is sooner revoked.

**(3A)** If:

\(a\) an undertaking was or is entered into before section 17 of the
*Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act
1992* commences; and

\(b\) the undertaking is in force immediately before that section
commences;

the Minister must, by notice in writing, give the person who gave the
undertaking the opportunity, before the undertaking expires, to extend
the undertaking so that it expires 5 years after the day on which it was
entered into unless provision is made for its earlier expiration.

**(3B)** If a person who gave an undertaking of the kind referred to in
subsection (3A) refuses or fails to extend its operation in the manner
referred to in subsection (3A) before the undertaking expires, the
Minister may, in substitution for the extension of the undertaking,
publish a dumping duty notice or a countervailing duty notice that
commences on the day after the undertaking expired and ends 2 years
after that day unless it is sooner revoked.

**(4) (5) & (6)** Omitted

**(7)** In this section:

**\"relevant notification provision\"** means subsection 269TG(2),
269TH(2), 269TJ(2), (4), (5) or (6) or 269TK(2);

**\"relevant undertaking provision\"** means subsection 269TG(4) or
269TJ(3).

**269TN** **Retrospective notices**

**(1)** Subject to this section, the Minister must not cause a notice to
be published under subsection 269TG(1), 269TH(1), 269TJ(1) or 269TK(1)
in respect of goods that have been entered for home consumption.

**(2)** Subsection (1) does not prevent the publication of a notice
under subsection 269TG(1), 269TH(1), 269TJ(1) or 269TK(1) in respect of
goods that have been entered for home consumption in relation to which
security has been taken under section 42 in respect of any interim duty
that might become payable under section 8, 9, 10 or 11 of the Dumping
Duty Act, as the case may be (not being security that has been
cancelled), by reason of the publication of such a notice or in relation
to which the Customs had the right to require and take such security
(not being security that would have been cancelled under this Act if it
had been taken).

**(3)** Subsection (1) does not prevent the publication of a notice
under subsection 269TG(1) in respect of goods that have been entered for
home consumption to which, by virtue of subsection (4) of this section,
this subsection applies, if:

\(a\) within 90 days after the entry of the goods for home consumption,
security has been taken under section 42 in respect of any interim duty
that might be payable on goods of the same kind under section 8 of the
Dumping Duty Act or, within that period, the Customs had the right to
require and take such security; and

\(b\) material injury has been caused to an Australian industry by the
export to Australia during a short period of large quantities of goods
of the same kind, being injury arising by reason of the amount of the
export price of the goods exported being less than the amount of the
normal value of the goods exported, and the Minister considers that the
publication of the notice is necessary to prevent the recurrence of the
injury.

**(4)** Subsection (3) applies to goods:

\(a\) that have been imported into Australia by an importer who knew, or
ought to have known, that the amount of the export price of the goods
was less than the normal value of the goods and that by reason thereof
material injury would be caused to an Australia industry; or

\(b\) that are goods of a kind the exportation of which to Australia on
a number of occasions has caused, or, but for the publication of a
notice under section 269TG in respect of goods of that kind, would have
caused, material injury to an Australian industry by reason of the
amount of the export price of the goods exported being less than the
normal value of the goods exported.

**(4A)** Before the Minister decides to publish a dumping duty notice
under subsection 269TG(1) in circumstances referred to in subsection (3)
of this section, in respect of goods that have already been entered for
home consumption, the Minister must:

\(a\) inform the importer of the goods of the decision he or she
proposes to make; and

\(b\) allow a reasonable opportunity for the importer of the goods to
comment on the proposed decision; and

\(c\) give consideration to the comment provided by the importer.

**(5)** Subsection (1) does not prevent the publication of a notice
under subsection 269TJ(1) in respect of goods that have been entered for
home consumption if:

\(a\) within 90 days after the entry of the goods for home consumption,
security has been taken under section 42 in respect of any interim duty
that might be payable on goods of the same kind under section 10 of the
Dumping Duty Act or, within that period, the Customs had the right to
require and take such security; and

\(b\) material injury has been caused to an Australian industry by the
export to Australia during a short period of large quantities of goods
of the same kind because a countervailable subsidy has been received
from the country of export or country of origin of those goods.

**(6)** Where

\(a\) the Minister is satisfied that an act or omission of an exporter
who has given an undertaking in accordance with subsection 269TG(4) is a
violation of that undertaking; and

\(b\) at the time of, or at any time after, that act or omission,
security has been taken under section 42 in respect of any interim duty
that might be payable under section 8 of the Dumping Duty Act on goods
of the kind to which the undertaking relates or the Customs had the
right to require and take such security;

subsection (1) does not prevent the publication of a notice under
subsection 269TG(1) of this Act in respect of goods that:

\(c\) have been exported by the exporter;

\(d\) are of the kind to which the undertaking relates; and

\(e\) have been entered for home consumption on a day that:

\(i\) was not earlier than the day on which that act or omission
occurred; and

\(ii\) was not more than 90 days before the day on which that security
was taken or there was a right to require and take such security.

**(7)** Where:

\(a\) the Minister is satisfied that an act or omission of the
Government of a country that has given an undertaking in accordance with
subsection 269TJ(3) is a violation of that undertaking; and

\(b\) at the time of, or at any time after, that act or omission,
security has been taken under section 42 in respect of any interim duty
that might be payable under section 10 of the Dumping Duty Act on goods
of the kind to which the undertaking relates or the Customs had the
right to require and take such security;

subsection (1) does not prevent the publication of a notice under
subsection 269TJ(1) in respect of goods that:

\(c\) are the produce or manufacture of that country or have been
exported from that country, as the case may be; and

\(d\) are of the kind to which the undertaking relates; and

\(e\) have been entered for home consumption on a day that:

\(i\) was not earlier than the day on which that act or omission
occurred; and

\(ii\) was not more than 90 days before the day on which that security
was taken or there was a right to require and take such security.

**(8)** Where:

\(a\) the Minister is satisfied that an act or omission of an exporter
who has given an undertaking in accordance with subsection 269TJ(3) is a
violation of that undertaking; and

\(b\) at the time of, or any time after, that act or omission, security
has been taken under section 42 in respect of any interim duty that
might be payable under section 10 of the Dumping Duty Act on goods of
the kind to which the undertaking relates or the Customs had the right
to require and take such security;

subsection (1) does not prevent the publication of a notice under
subsection 269TJ(1) in respect of goods that:

\(c\) have been exported by the exporter; and

\(d\) are of the kind to which the undertaking relates; and

\(e\) have been entered for home consumption on a day that:

\(i\) was not earlier than the day on which that act or omission
occurred; and

\(ii\) was not more than 90 days before the day on which that security
was taken or there was a right to require and take such security.

**269TP** **Power to specify goods**

A notice under subsection 269TG(2), 269TH(2), 269TJ(2) or 269TK(2) in
respect of a kind of goods, may, without limiting the generality of
those provisions be expressed to apply to:

\(a\) goods of that kind exported from a particular country; or

\(b\) goods of that kind exported by a particular exporter.

**269U** **Inquiries in relation to undertakings**

**(1)** Where the Minister is considering, in relation to goods the
subject of an application under section 269TB:

\(a\) whether to give a notice, in accordance with subsection 269TG(3D),
to the exporter of the goods in the consignment in relation to an
undertaking in relation to an Australian industry; or

\(b\) whether to give a notice, in accordance with subsection 269TJ(2A),
to the Government of the country of origin, or of the country of export,
of the goods in the consignment or to the exporter of the goods in the
consignment in relation to an undertaking in relation to an Australian
industry;

the CEO may authorize an officer in writing to convene a meeting of
representatives of the Australian industry for the purpose of obtaining
information and submissions from those representatives in relation to
the question what terms of undertaking should be set out in the notice,
if it is to be given, as the terms that may be satisfactory to the
Minister.

**(2)** An officer authorized under subsection (1) to convene a meeting
of representatives of an Australian industry shall give notice in
writing to such persons as, in his opinion, represent the Australian
industry, setting out:

\(a\) the day, time and place for the convening of the meeting; and

\(b\) the question to be considered by the meeting.

**(3)** The officer convening a meeting in pursuance of subsection (2):

\(a\) shall preside at the meeting; and

\(b\) may adjourn the meeting from time to time.

**(4)** At a meeting of representatives of an Australian industry
convened in pursuance of subsection (2), the representatives attending
the meeting may provide information, or make submissions, to the officer
convening the meeting in relation to the question being considered by
the meeting.

**(5)** Nothing in subsection (4) shall be taken to prevent a
representative of an Australian industry who attends a meeting convened
in pursuance of subsection (2) from providing information or making a
submission, in relation to the question considered or to be considered
at the meeting, to the officer convening the meeting otherwise than at
the meeting or to the Minister.

**(6)** The officer convening a meeting in pursuance of subsection (2)
may, subject to subsection (7), put before the meeting information in
relation to the question being considered by the meeting.

**(7)** The officer convening a meeting in pursuance of subsection (2)
shall not put before the meeting any information provided to him by
another person that is information of a confidential nature (whether or
not confidentiality was claimed in respect of the information by the
person who provided the information).

**(8)** After the close of a meeting convened in pursuance of subsection
(2), the officer convening the meeting shall furnish to the CEO for
submission to the Minister a report in writing of the information
provided and the submissions made at the meeting.

**(9)** Nothing in this section shall be taken, for the purposes of
subsection 51(1) of the *Trade Practices Act 1974*, to authorize any act
or thing other than the providing of information or the making of a
submission, at a meeting of representatives of an Australian industry
convened in pursuance of subsection (2), by a representative of the
Australian industry to the officer convening the meeting in relation to
the question being considered by the meeting.

***Division 4---Dumping duty or countervailing duty assessment***

**269UA** **What this Division is about**

+-----------------------------------------------------------------------+
| This Division enables a reconciliation of interim duty, and final     |
| duty, payable under the Dumping Duty Act. The Division permits an     |
| importer who has paid interim duty on particular goods to apply,      |
| within specified time limits, for an assessment of duty payable on    |
| those goods. In particular, the Division provides that:               |
|                                                                       |
| -   if the duty is less than the interim duty, the excess is to be    |
|     refunded;                                                         |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   if the duty is more than the interim duty, the interim duty is    |
|     treated as duty and the balance waived;                           |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   if the importer fails, within the time limits available, to seek  |
|     an assessment of duty, the interim duty paid on the goods is      |
|     taken to be duty actually payable.                                |
+-----------------------------------------------------------------------+

**269V** **Importers may apply for duty assessment in certain
circumstances**

**(1)** An importer of goods on which, under the Dumping Duty Act, an
interim duty has been paid may, subject to subsection (2), by
application lodged with the CEO, request that the Minister make an
assessment of the liability of those goods to duty under that Act.

**(2)** An application for an assessment of duty under subsection (1)
may only be made if:

\(a\) the application is made not more than 6 months after the end of
the particular importation period in which the goods the subject of the
application were entered for home consumption; and

\(b\) the importer contends that the total amount of duty payable in
respect of those goods under the Dumping Duty Act is less, by a
specified amount, than the total amount of interim duty that has been
paid on those goods under that Act.

**269W** **Manner of making application for duty assessment**

**(1)** An application for an assessment of duty on goods of a
particular kind entered for home consumption during a particular
importation period must be in writing and contain:

\(a\) a full description of the goods of that kind in each consignment
imported during the particular importation period; and

\(b\) information concerning the amount of interim duty paid on the
goods of that kind in each such consignment; and

\(c\) if an interim dumping duty has been imposed---a statement of the
amounts that, in the opinion of the applicant, are the normal value and
the export price of goods of that kind in each such consignment and
information to establish those amounts; and

\(d\) if an interim countervailing duty has been imposed---a statement
of the amounts that, in the opinion of the applicant, are:

\(i\) the amount of the countervailable subsidy received on goods of
that kind in each such consignment; and

\(ii\) the amount of the export price of goods of that kind in each such
consignment;

and information to establish those amounts; and

\(e\) a statement of the amount by which the applicant contends that the
total interim duty paid on those goods exceeds the total duty payable
under the Dumping Duty Act.

**(2)** An application must be lodged with the CEO:

\(a\) by leaving it at a place that has been allocated for lodgement of
duty assessment applications at Customs House in Canberra; or

\(b\) by posting it by pre-paid post to a postal address notified by
Customs in the *Gazette;* or

\(c\) by sending it by electronic facsimile to a facsimile number
notified by Customs in the *Gazette;*

and the application is taken to have been lodged when the application,
or a facsimile of the application, is first received by an officer of
Customs doing duty in relation to final duty assessment applications.

**(3)** The day on which an application is taken to have been lodged
must be recorded on the application.

**269X** **Consideration of duty assessment applications**

**(1)** The CEO must, as soon as practicable after the lodgement of an
application for assessment of duty in respect of goods that were entered
for home consumption during a particular importation period but not more
than 155 days after the lodgement of that application, examine the
application and decide what recommendation to make to the Minister under
subsection (6).

**(2)** If the CEO considers that any person (including the applicant)
may be able to supply information relevant to the consideration of the
application, the CEO may, by notice in writing, request the supply of
that information, in writing:

\(a\) if the information is sought from a person other than the
applicant---within a period specified in the notice ending not later
than 120 days after the lodgement of the application; and

\(b\) if the information is sought from the applicant---within a period
specified in the notice ending not later than 155 days after the
lodgement of the application.

**(3)** Where the CEO proposes to take into account any relevant
information that was not supplied to the CEO by the applicant, the CEO
must:

\(a\) give the applicant a copy of the information that he or she
proposes to take into account unless, in the opinion of the CEO, the
provision of that information would adversely affect the business or
commercial interests of a person supplying the information; and

\(b\) invite the applicant, within a specified period ending not later
than 155 days after the lodgement of the application, to make any
further submission the applicant considers appropriate in relation to
that information.

**(4)** If a person refuses or fails to supply information or to make a
submission within the period allowed but subsequently supplies that
information or makes that submission, the CEO may disregard that
information or submission in considering the application.

**(5)** On the basis of the information contained in the application,
any other information provided under subsection (2) or (3) that is not
disregarded under subsection (4) and any other information the CEO
considers relevant, the CEO must:

\(a\) provisionally ascertain, in relation to each consignment of goods
to which the application relates, each variable factor relevant to the
determination of duty payable on the goods under the Dumping Duty Act;
and

\(b\) having regard to those variable factors as so provisionally
ascertained and, where appropriate, to the non-injurious price of goods
of that kind--- provisionally calculate, in respect of each such
consignment, the amount of duty payable under the Dumping Duty Act.

**(6)** On the basis of the provisional calculation of duty referred to
in paragraph (5)(b), the CEO 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 CEO 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 CEO 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 CEO's
decision by the Review Officer under Division 9.

**(8)** The CEO 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 Officer--- 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** **Assessments**

**(1)** As soon as practicable after receiving a recommendation from the
CEO or from the Review Officer under subsection 269ZZT(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 made 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.

***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 CEO 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 CEO 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

\(ii\) if those measures had not been taken---the Minister would not be
entitled to take any such measures;

the affected party may, by application lodged with the CEO, request that
the CEO 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
CEO. 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 CEO 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

\(ii\) if those measures had not been taken---the Minister would not be
entitled to take any such measures;

the Minister may, at any time, by notice in writing, request that the
CEO 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
affect 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 lodgement 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 an approved form; and

\(c\) contain such information as the form requires; and

\(d\) be signed in the manner indicated by the form.

**(2)** Without otherwise limiting the matters that can be required by
the approved 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 any other circumstances that in the
view of the applicant would prevent the Minister, in the absence of the
anti-dumping measures, from taking such measures---a statement of those
other circumstances.

**(3)** An application may be lodged with Customs:

\(a\) by leaving it at a place allocated for lodgement of such
applications at Customs House in Canberra; or

\(b\) by posting it by prepaid post to a postal address specified in the
approved form; or

\(c\) by sending it by electronic facsimile to a facsimile number
specified in the approved form;

and the application is taken to have been lodged when the application,
or a facsimile of the application, is first received by an officer of
Customs 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 for review of anti-dumping measures is lodged
with Customs under section 269ZB the CEO must, within 20 days after
Customs receives the application:

\(a\) examine the application; and

\(b\) if the CEO is not satisfied, having regard to the application and
to any other information that the CEO considers relevant, of one or more
of the matters referred to in subsection (2);

the CEO must 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:

\(a\) whether the application complies with section 269ZB; and

\(b\) whether there appear to be reasonable grounds for asserting
either:

\(i\) that the variable factors relevant to the taking of anti-dumping
measures have changed; or

\(ii\) that, if the anti-dumping measures to which the application
relates had not been taken, the Minister would not be entitled to take
such measures.

**(3)** The notice informing the applicant of the rejection of the
application must set out the reasons why the CEO was not satisfied of
one or more of the matters set out in subsection (2).

**(4)** If the CEO decides not to reject an application for review of
anti-dumping measures, the CEO must either:

\(a\) publish a notice in a newspaper circulating in each State, in the
Australian Capital Territory and in the Northern Territory indicating
that it is proposed to review the measures covered by the application;
or

\(b\) if the application for review related only to the review of the
measures as they affect particular exporters and the CEO is satisfied
that there is a reasonable prospect that a review of such measures as
they affect other particular exporters or as they affect exporters
generally may be justified---recommend to the Minister that the review
applied for be extended accordingly.

**(5)** If the CEO is requested by the Minister to undertake a review of
anti-dumping measures, either as result of a recommendation made to the
Minister under subsection (4) or otherwise, the CEO must, on receipt of
that request, publish a notice in a newspaper circulating in each State,
in the Australian Capital Territory and in the Northern Territory
indicating that it is proposed to review the measures covered by the
request.

**(6)** If:

\(a\) the CEO recommends to the Minister under paragraph (4)(b) the
extension of a review of anti-dumping measures: but

\(b\) the CEO 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 CEO must, on being so informed, publish a notice in a newspaper
circulating in each State, in the Australian Capital Territory and in
the Northern Territory 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 CEO under subsection (4),(5) or (6)
must:

\(a\) describe the kind of the goods to which the review relates; and

\(b\) describe the measures to which the review relates; 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,

\(ii\) if the 110 days referred to in paragraph (e) is extended by the
Minister---within the period of 155 days as similarly so extended; and

\(d\) invite interested parties to lodge with the CEO, within a
specified period of not more than 40 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 CEO will place on the public record a statement of the essential
facts on which the CEO proposes to base a recommendation concerning the
measures under review; and

\(f\) invite interested parties to lodge with the CEO, 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.

**269ZD** **Statement of essential facts in relation to review of
anti-dumping measures**

**(1)** If the CEO publishes a notice under subsection 269ZC(4),(5) or
(6) in relation to the review of anti-dumping measures, he or she must,
within the time limit specified for doing so on that notice, place on
the public record a statement of the facts (the ***statement of
essential*** ***facts***) on which the CEO proposes to base a
recommendation to the Minister in relation to the review of those
measures.

**(2)** Subject to subsection (3), in formulating the statement of
essential facts the CEO:

\(a\) must have regard to:

\(b\) the application or request; and

\(ii\) any submissions relating generally to the review that are
received by Customs within 40 days after the publication of the notice
under subsection 269ZC(4),(5) or (6); and

\(b\) may have regard to any other matters that the CEO considers
relevant.

**(3)** The CEO is not obliged to have regard to any submissions
relating generally to the review that are received by Customs after the
end of the period referred to in subparagraph (2)(a)(ii) if to do so
would, in the CEO's opinion, prevent the timely placement of the
statement of essential facts on the public record.

**269ZDA** **Report on review of measures**

**(1)** The CEO must, after conducting a review of anti-dumping measures
and before the end of the period referred to in paragraph 269ZC(7)(c) as
it applies to those measures, 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:

\(b\) that the notice remain unaltered; or

\(ii\) that the notice be revoked in its application to a particular
exporter or to a particular kind of goods or revoked generally; 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, 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 CEO's report; or

\(iii\) that the Minister indicate to the person who gave the
undertaking that the undertaking is no longer acceptable and that the
investigation of the need for a dumping duty notice or a countervailing
duty notice as the case requires, covering that person is to be resumed;
or

\(iv\) that the Minister indicate to the person who gave the undertaking
that the person is released from the undertaking and that the
investigation of the need for a dumping duty notice or countervailing
duty notice covering that person is terminated.

**(2)** Nothing in this section is to be taken to imply that the CEO
cannot simultaneously make the same recommendation in relation to more
than one exporter or person giving an undertaking.

**(3)** Subject to subsection (4) in deciding on the recommendations to
be made to the Minister in the report, the CEO:

\(a\) must have regard to:

\(i\) the application or request for review; and

\(ii\) any submission relating generally to the review to which the CEO
has had regard for the purpose of formulating the statement of essential
facts in relation to the review; and

\(iii\) that statement of essential facts; and

\(iv\) any submission made in response to that statement that is
received by Customs within 20 days after the placing of that statement
on the public record; and

\(b\) may have regard to any other matter that the CEO considers to be
relevant to the review.

**(4)** The CEO is not obliged to have regard to any submissions made in
response to the statement of essential facts that is received by Customs
after the end of the period referred to in subparagraph (3)(a)(iv) if to
do so would, in the CEO's opinion, prevent the timely preparation of the
report to the Minister.

**(5)** The report to the Minister must include a statement of the CEO's
reasons for any recommendations 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.

**269ZDB** **Powers of the Minister in relation to review of
anti-dumping measures**

**(1)** After considering the report of the CEO and any other
information that the Minister considers relevant, the Minister must
declare, by notice published in accordance with subsection (7), that for
the purposes of this Act and the Dumping Duty Act:

\(a\) to the extent that the anti-dumping measures concerned involved
the publication of a dumping duty notice or a countervailing duty
notice:

\(i\) that the notice is to remain unaltered; or

\(ii\) that, with effect from a date specified in the declaration, the
notice is taken to be, or to have been, revoked either in relation to a
particular exporter or to exporters generally or in relation to a
particular kind of goods; or

\(iii\) that, with effect from a date specified in the declaration, the
notice is to be taken to have effect or to have had effect, either in
relation to a particular exporter or to exporters generally, as if the
Minister had fixed different variable factors in respect of that
exporter or of exporters generally, relevant to the determination of
duty; and

\(b\) to the extent that the anti-dumping measures concerned involved
the acceptance by the Minister of an undertaking:

\(i\) that the undertaking is to remain unaltered; or

\(ii\) that if, before a date specified in the declaration, the terms of
the undertaking are altered in a manner specified in the declaration,
the undertaking as so varied will be acceptable to the Minister; or

\(iii\) that the undertaking is no longer acceptable to the Minister and
that the investigation of the need for a dumping duty notice or a
countervailing duty notice is to be resumed immediately; or

\(iv\) that, with effect from a date specified in the declaration, the
person who gave the undertaking is released from the undertaking and
that the investigation giving rise to the undertaking is terminated.

**(2)** If the Minister makes a declaration under subsection (1) that
declaration has effect according to its terms.

**(3)** If:

\(a\) the Minister makes a declaration under subsection (1); and

\(b\) under that declaration, new variable factors are taken to have
been fixed, in relation to goods exported to Australia by a particular
exporter, with effect from a date specified in the declaration; and

\(c\) interim duty paid on such goods on the basis of the variable
factors as previously fixed exceeds the interim duty that would be
payable on the basis of the new variable factors;

the person who paid the interim duty may apply under Division 3 of part
VIII for a refu nd of the excess.

**(4)** The Minister must, as soon as practicable after the making of a
declaration under subsection (1) that affects an exporter or person
giving an undertaking, inform that exporter or person of the terms of
the declaration.

**(5)** Nothing in this section is to be taken to imply that the
Minister cannot simultaneously make the same declaration in relation to
more than one exporter or person giving an undertaking.

**(6)** For the purposes of a declaration under subsection (1), the
Minister must not fix a date:

\(a\) in a circumstance to which subparagraph (1)(a)(ii) or (iii)
applies---that is earlier than the date of publication under section
269ZC of a notice indicating the proposal to undertake the review
concerned: and

\(b\) in a circumstance to which subparagraph (1)(b)(ii) or (iv)
applies---that is earlier than the date of the declaration.

**(7)** A notice under subsection (1) must be published in:

\(a\) the *Gazette*; and

\(b\) a newspaper circulating in each State, in the Australian Capital
Territory and in the Northern Territory.

***Division 6---Certain exporters may seek accelerated review of dumping
duty notices or countervailing duty notices***

**269ZDC** **What this Division is about**

  -----------------------------------------------------------------------
  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 or exporters whose exportations were not examined when
  the notice was published.

  -----------------------------------------------------------------------

**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 residual exporters from a
particular country of export;

a residual exporter from that country (other than such an exporter in
respect of whom a declaration has already been made under subparagraph
269ZG(3)(b)(ii) in respect of a previous application) may, by
application lodged with the CEO , request an accelerated review of that
notice in so far as it affects that exporter.

**(2)** If the CEO 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 who was a selected exporter
in relation to the application for publication of that notice;

the CEO may reject the application.

**(3)** If, during the course of an accelerated review, the CEO 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 who was a selected exporter
in relation to the application for publication of that notice;

the CEO may terminate the review.

**(4)** For the purposes of this section, an exporter is taken to be
related to another exporter who is a selected 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 accordance with subsection (2), 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)** An application may be lodged with Customs:

\(a\) by leaving it at a place allocated for lodgment of accelerated
review applications; or

\(b\) by posting it by pre-paid post to a postal address specified in
the *Gazette*; or

\(c\) by sending it by electronic facsimile to a number specified in the
*Gazette*;

and the application is taken to be lodged when the application, or a
facsimile of it, is first received by an officer of Customs doing duty
in relation to such applications.

**(3)** The day on which an application is taken to be lodged must be
recorded on the application.

**269ZG** **Consideration of application**

**(1)** CEO must, after considering the application and making such
inquiries as the CEO 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:

\(i\) so as not to apply to the applicant; or

\(ii\) so as to apply to the applicant as if different variable factors
had been fixed;

and set out the CEO's reasons for so recommending.

**(2)** A report by the CEO 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 CEO and the reasons
for the recommendation, the Minister must, by notice in writing
published in the *Gazette*:

\(a\) 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:

\(i\) the original dumping duty notice or countervailing duty notice had
not applied to the applicant; or

\(ii\) 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 payable
by the applicant;

and, where the Minister does so, the declaration has effect according to
its terms.

**(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 from the applicant in respect of
consignments of goods entered for home consumption after the application
is lodged and until the completion of the review; but

\(b\) the CEO 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 CEO 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 CEO 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 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 CEO must publish in a newspaper circulating in each State,
in the Australian Capital Territory and in the Northern Territory, 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 interested parties to apply to the CEO in accordance with
section 269ZHC, within 60 days for a continuation of 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 CEO 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 of lodgement of application for continuation of
anti-dumping measures**

**(1)** An application under section 269ZHB must:

\(a\) be in writing; and

\(b\) be in an approved form; and

\(c\) contain such information as the form requires; and

\(d\) be signed in the manner indicated in the form.

**(2)** An application may be lodged with Customs:

\(a\) by leaving it at a place allocated for lodgement of such
applications at Customs House in Canberra; or

\(b\) by posting it by prepaid post to a postal address specified in the
approved form; or

\(c\) by sending it by electronic facsimile to a facsimile number
specified in the approved form:

and the application is taken to have been lodged when the application,
or a facsimile of the application, is first received by an officer of
Customs 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 Customs in accordance with section
269ZHC, the CEO 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 CEO is not satisfied in relation to any of the
applications, having regard to the application and to any other
information that the CEO considers relevant, of one or more of the
matters referred to in subsection (2):

the CEO 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 CEO was not satisfied of
one or more of the matters set out in subsection (2).

**(4)** If the CEO 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 CEO must publish a notice in a
newspaper circulating in each State, in the Australian Capital Territory
and in the Northern Territory indicating that it is proposed to inquire
whether continuation of the measures is justified.

**(5)** The notice published by the CEO 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 the publication of the notice;
or

\(ii\) if the period of 110 days referred to in paragraph (e) is
extended by the Minister---within the period of 155 days as similarly so
extended; and

\(d\) invite interested parties to lodge with the CEO, within a
specified period of not more than 40 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 CEO will place on the public record a statement of the essential
facts on which the CEO proposes to base a recommendation concerning the
continuation of the measures; and

\(f\) invite interested parties to lodge with the CEO, 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 CEO publishes a notice under subsection 269ZHD(4)
concerning the continuation of anti-dumping measures, he or she must,
within the time limit specified for so doing in the notice, ensure that
there is placed on the public record a statement of the facts (the
***statement of** **essential facts***) on which the CEO 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 CEO:

\(a\) must have regard to:

\(b\) the application concerned; and

\(ii\) any submissions relati ng generally to the inquiry that are
received by Customs within 40 days after the publication of the notice
under subsection 269ZHD(4); and

\(b\) may have regard to any other matters that the CEO considers
relevant.

**(3)** The CEO is not obliged to have regard to any submissions
relating generally to the inquiry that are received by Customs after the
end of the period referred to in subparagraph (2)(a)(ii) if to do so
would, in the CEO'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 CEO must, after conducting an inquiry into the continuation
of anti-dumping measures and before the end of the period referred to in
paragraph 269ZHD(5)(c) as it applies to those measures, give the
Minister a report recommending:

\(a\) that the Minister take steps to secure the continuation of the
anti-dumping measures the subject of the application; or

\(b\) that the anti-dumping measures expire on the specified expiry
date.

**(2)** The CEO must not recommend that the Minister take steps to
secure the continuation of the anti-dumping measures unless the CEO 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 CEO's report, the CEO:

\(a\) 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 CEO 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 Customs within 20 days after placing of that statement on
the public record; and

\(b\) may have regard to any other matter that the CEO considers to be
relevant to the inquiry.

**(4)** The CEO 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 CEO's opinion, prevent the timely preparation of the
report to the Minister.

**(5)** The report to the Minister must include a statement of the CEO'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 CEO and any other
information that the Minister considers relevant, the Minister must, by
notice published in accordance with subsection (2), declare whether or
not the Minister has decided to take steps to secure the continuation of
the anti-dumping measures concerned.

**(2)** A notice under subsection (1) must be published:

\(a\) before the expiry day specified in the notice; and (b) in the
*Gazette*, and a newspaper circulating in each State, in the Australian
Capital Territory and in the Northern Territory.

**(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:

\(a\) to the extent that the measures comprise the publication of a
dumping duty notice---by the Minister determining, in writing, that the
notice continues in force after the specified expiry day; and

b\) to the extent that the measures comprise the publication of a
countervailing duty notice---by the Minister determining, in writing,
that the notice continues in force after the specified expiry day; and

\(c\) to the extent that the measures involve the acceptance of an
undertaking---by the person who gave the undertaking agreeing to extend
the undertaking beyond the specified expiry day or, if the person will
not so agree, by the Minister publishing a dumping duty notice or a
countervailing duty notice to take effect from the day after the
specified expiry day in substitution for the undertaking.

**(5)** If the Minister secures the continuation of anti-dumping
measures in accordance with this section, the measures continue in force
for 5 years after the specified expiry day unless:

\(a\) in the case of a dumping duty notice or a countervailing duty
notice---the notice is revoked before the end of that period; or

\(b\) in the case of an undertaking---provision is made for its earlier
expiration.

***Division 7---Procedural and evidentiary matters***

**269ZHH** **What this Division is about**

+-----------------------------------------------------------------------+
| This Division:                                                        |
|                                                                       |
| -   enables extension of the period for placing statements of         |
|     essential facts on the public record if the Minister is satisfied |
|     it is necessary;                                                  |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   provides for the giving of public notice of decisions and         |
|     determinations under this Part;                                   |
|                                                                       |
| -                                                                     |
|                                                                       |
| -   provides for the CEO to maintain a public record of               |
|     investigations, reviews and inquiries conducted by the CEO under  |
|     this Part.                                                        |
+-----------------------------------------------------------------------+

**269ZHI** **Minister may extend time for statements of essential
facts**

**(1)** If the CEO becomes satisfied within 110 days after:

\(a\) the date of initiation of an investigation as specified in a
notice published under section 269TC; or

\(b\) the date of publication, under section 269ZC, of a notice of a
review of anti-dumping measures; or

\(c\) the date of publication, under section 269ZHD, of a notice of an
inquiry into the continuation of anti-dumpng measures;

that that period is likely to be insufficient for the CEO to place on
the public record a statement of essential facts in relation to that
investigation, review or inquiry, the CEO may, before the end of that
period, give the Minister a written request to extend the period.

**(2)** If the CEO makes such a request he or she must supply reasons
why the period is likely to be insufficient.

**(3)** The Minister may, having regard to the request and to the
reasons:

\(a\) if he or she is satisfied that it is reasonable to do
so---determine the period by which the 110 days is to be extended and
notify the CEO accordingly; and

\(b\) if he or she is not so satisfied---inform the CEO that the
statement must be prepared within the 110 days.

**269ZI.** **Public notice**

**(1)** If a person or body is required or empowered to give public
notice of a decision or determination but the provision requiring or
empowering the giving of that notice does not specify where the notice
is to be given, it is to be published:

\(a\) in a newspaper circulating in each State, in the Australian
Capital Territory and in the Northern Territory; and

\(b\) if it is a decision under Division 3---in the *Gazette*.

**(2)** If a person or body is required or empowered to give public
notice of a decision or determination in a particular publication,
whether because of subsection (1) or otherwise, that person or body
must:

\(a\) set out in the notice particulars of the decision or determination
made; and

\(b\) set out in the notice, or in a separate report to which the notice
refers, the reasons for the decision or determination including all
material findings of fact or law on which the decision or determination
is based; and

\(c\) if a person has a right to have the decision or determination
reviewed by another body or referred to another body for review---set
out in the notice full particulars of those rights; and

if the material findings of fact or law are contained in a separate
report---ensure that copies of the report are freely available and that
the manner of obtaining a copy is set out in the notice.

**(3)** A person or body required or empowered to give public notice of
a decision or determination must:

\(a\) ensure that a copy of the notice and, where appropriate, of a
report to which the notice refers, is provided to each country whose
exporters are affected by the decision or determination; and

\(b\) give a copy of the report to each other interested party known to
be affected by the decision or determination**.**

**(4)** If the CEO gives public notice of a decision under paragraph
269TD(4)(b) to require securities in respect of interim duty that may
become payable, the particulars of the decision to require those
securities as set out in the notice should include, in particular:

\(a\) the names of the exporters of the goods concerned or, where this
is impracticable, the name of the country or countries of export
concerned; and

\(b\) a description of the goods either in terms of an item of the
*Customs Tariff Act 1987* or otherwise; and

\(c\) in the case of an application for the publication of a notice
under section 269TG or 269TH:

\(i\) particulars of dumping margins established in relation to each of
the exporters involved; and

\(ii\) an explanation of the methods used to compare export prices and
normal values to establish those dumping margins;

\(d\) in the case of an application for the publication of a notice
under section 269TJ or 269TK-the amount of subsidy established in
relation to each of the exporters involved; and

\(e\) the considerations relevant to the determination of material
injury to an industry, or of material hindrance to the establishment of
an industry, for the purposes of the preliminary affirmative
determination.

**(5)** If the Minister gives public notice:

\(a\) of a decision under section 269TG or 269TH to publish a dumping
duty notice; or

\(b\) of a decision under section 269TL not to publish such a notice;

then, for the purposes of the public notice:

\(c\) the particulars of the decision should include:

\(i\) the matters referred to in paragraphs (4)(a), (b) and (c); and

\(ii\) particulars of the export price and normal value of the goods
concerned ascertained, or last ascertained, for the purposes of
subsection 269TG(1) or (2) or 269TH(1) or (2); and

\(iii\) any considerations relevant to a determination of material
injury to an industry, or of material hindrance to the establishment of
an industry, for the purposes of the decision; and

\(d\) if the decision involves any retrospective imposition of duty the
reasons for the decision should include the basis for the retrospective
imposition of duty.

**(6)** If the Minister gives public notice:

\(a\) of a decision under section 269TJ or 269TK to publish a
countervailing duty notice, or

\(b\) of a decision under section 269TL not to publish such a notice;

then, for the purposes of the public notice:

\(c\) the particulars of the decision should include:

\(i\) the matters referred to in paragraphs (4)(a), (b) and (d);

\(ii\) and

\(iii\) particulars of the countervailing subsidy received in respect of
the goods concerned ascertained, or last ascertained, for the purposes
of subsection 269TJ(1) or (2) or 269TK(1) or (2); and

\(iv\) any considerations relevant to a determination of material
injury, to an industry or of material hindrance to the establishment of
an industry, for the purposes of the decision; and

\(d\) if the decision involves any retrospective imposition of duty -
the reasons for the decision should include the basis for the
retrospective imposition of duty.

**(7)** If the Minister gives public notice under subsection 269TG(6) of
a decision to accept an undertaking by an exporter of goods, the
particulars of the decision to accept that undertaking should include,
in particular:

\(a\) the name of the exporter of the goods concerned; and

\(b\) a description of the goods either in terms of an item of the
*Customs Tariff Act 1987* or otherwise; and

\(c\) the price below which, in accordance with the terms of the
undertaking, the goods will not be sold for export to Australia.

**(8)** If the Minister gives public notice under subsection 269TJ(3C)
of a decision to accept an undertaking given by a government of a
country of export in relation to the export trade to Australia in like
goods, the particulars of the decision to accept that undertaking should
include, in particular:

\(a\) the name of the government of the country of export; and

\(b\) a description of the goods either in terms of an item of the
*Customs Tariff Act 1987* or otherwise; and

\(c\) details of the changes proposed to be made to the countervailable
subsidy provided by that government in respect of those goods.

**(9)** If, a person or body is required or empowered to give public
notice of a decision or determination in a particular publication:

\(a\) the person or body must ensure that the notice given does not
contain any information that is claimed to be confidential or to be
information whose publication would adversely affect a person\'s
business or commercial interests; but

\(b\) if it is practicable to do so, the person or body should include
in the notice a summary of that information in a form that allows a
reasonable understanding of the information without breaching that
confidentiality or adversely affecting those interests.

**(10)** Nothing in this section limits the operation of another
provision of this Part that specifies the matters that must be included
in a public notice.

**269ZJ** **CEO to maintain public record for certain purposes**

**(1)** The CEO must, in relation to each application received under
section 269TB that leads to an investigation, each application or
request under section 269ZA that leads to a review and each application
under section 269ZHB that leads to an inquiry:

\(a\) maintain a public record of the investigation ,review or inquiry
conducted for the purposes of the application or request, containing,
subject to subsection (2), a copy of all submissions from interested
parties , the statement of essential facts compiled in respect of that
investigation, review or inquiry, and a copy of all relevant
correspondence between the CEO and other persons; and

\(b\) draw the attention of all interested parties to the existence of
the public record, and to their entitlement to inspect that record; and

\(c\) at the request of an interested party, make the record available
to that party for inspection.

**(2)** To the extent that information given to the CEO by a person is
claimed to be confidential or to be information whose publication would
adversely affect a person\'s business or commercial interests, the
person giving that information must ensure that a summary of that
information:

\(a\) contains sufficient detail to allow a reasonable understanding of
the substance of the information; but

\(b\) does not breach that confidentiality or adversely affect those
interests;

is given to the CEO for inclusion in the public record.

**(3)** A person is not required to give the CEO a summary of
information under subsection (2) for inclusion in the public record if
the person satisfies the CEO that there is no way such a summary can be
given to allow a reasonable understanding of the substance of the
information.

**(4)** If oral information is given to the CEO by a person, the CEO
must not take that information into account unless it is subsequently
put in writing by the person or by the CEO and thereby becomes
available, subject to considerations of confidentiality and to the need
to protect business and commercial interests, as a part of the public
record.

**(5)** If:

\(a\) in relation to an application under subsection 269TB(1) or (2)
or269Z(1) or a request under subsection 269Z(2), a person claims that
information is confidential or would adversely affect a person\'s
business or commercial interests; and

\(b\) the CEO indicates to the party that he or she disagrees with the
claim; but, despite the opinion of the CEO , the person making the claim
will not:

\(c\) agree to the inclusion of the information in the public record; or

\(d\) prepare a summary of the information for inclusion in that record;

the CEO may disregard the information unless it is demonstrated that the
information is correct.

**(6)** If:

\(a\) (a) in relation to an application under subsection 269TB(1) or (2)
or 269Z(1) or a request under subsection 269Z(2), a person claims that
information is confidential or would adversely affect a person's
business or commercial interests, and

\(b\) the CEO indicates to the party that he or she agrees with the
claim;

but the person making the claim will not prepare a summary of the
information for inclusion in that record, the CEO may disregard the
information unless it is demonstrated that the information is correct.

***Division 8---Trade Measures Review Officer***

**269ZK** **What this Division is about**

+-----------------------------------------------------------------------+
| This Division provides for the establishment of the office of Trade   |
| Measures Review Officer. As well as establishing the office, the      |
| Division:                                                             |
|                                                                       |
| -   sets of the terms and conditions of appointment to the office;    |
|                                                                       |
| -   sets out the functions and powers of the Review Officer and       |
|     related matters;                                                  |
|                                                                       |
| -   provides for the appointment of an acting Review officer:         |
|                                                                       |
| -   provides for the provision of resources to the Review Officer:    |
|                                                                       |
| -   regulates disclosure of information in the control of the Review  |
|     Officer.                                                          |
+-----------------------------------------------------------------------+

**269ZL** **Trade Measures Review Officer**

**(1)** There is to be a Trade Measures Review Officer, who is to be
appointed by the Minister.

**(2)** A person may be appointed as a Trade Measures Review Officer on
a full-time basis or on a part-time basis.

**(3)** The Minister must not appoint an officer of Customs as the Trade
Measures Review Officer.

**(4)** A person must not be appointed as the Trade Measures Review
Officer unless the Minister is satisfied that the person has appropriate
qualifications, knowledge or experience.

**269ZM** **Review Officer's powers**

The Review Officer has the powers to do all things necessary or
convenient to be done for or in connection with performance of the
Review Officer 's functions under this Part in relation to the review of
certain decisions made by the Minister or the CEO.

Note: Sections 269ZZA and 269ZZN set out these reviewable decisions.

**269ZN** **Protection of Review Officer**

The Review Officer has, in the performance of his or her duties as the
Review Officer, the same protection and immunity as a Justice of the
High Court.

**269ZO** **Terms and conditions of appointment**

**(1)** Subject to this section, the Review Officer holds office for a
period not exceeding 3 years as is specified in the instrument of
appointment.

**(2)** The Review Officer is eligible for re-appointment.

**(3)** The Review Officer holds office on such terms and conditions as
are determined in writing by the Minister.

**269ZOA** **Disclosure of interests**

The Review Officer must give written notice to the Minister of all
direct and indirect pecuniary interests that the Review Officer has or
acquires in:

\(a\) any business in Australia or elsewhere; or

\(b\) any body corporate carrying on such a business.

**269ZP** **Outside employment**

The Review Officer must not, except with the Minister's approval:

\(a\) if appointed on a full-time basis---engage in paid employment
outside the duties of the office of Review Officer; or

\(b\) if appointed on a part-time basis---engage in paid employment
that, in the Minister's opinion, conflicts with the proper performance
of the Review Officer's functions.

**269ZQ** **Resignation**

The Review Officer may resign by giving the Minister a signed notice of
resignation.

**269ZR** **Termination of appointment**

**(1)** The Minister may terminate the appointment of the Review
Officer:

\(a\) If the Review Officer, being appointed on a full-time basis, is
absent from duty (except on leave of absence) for 14 consecutive days or
for 28 days in any period of 12 months; or

\(b\) because of:

\(i\) misbehaviour of the Review Officer; or

\(ii\) a disability of the Review Officer which renders him or her
incapable of performing the functions of the office of Review Officer.

**(2)** The Minister must terminate the appointment of the Review
Officer if the Review Officer:

\(a\) becomes bankrupt, applies to take the benefit of any laws for the
relief of bankrupt in insolvent debtors, compounds with creditors or
makes an assignment of remuneration for their benefit; or

\(b\) being appointed on a full-time basis engages in any paid
employment outside the duties of the office of Review Officer; or

\(c\) being appointed on a part time basis, engages in paid employment
that, in the Minister's opinion, conflicts with the proper performance
of the Review Officer 's functions.

**269ZS** **Acting Review Officer**

**(1)** The Minister may appoint a person to act as Review Officer:

\(a\) during a vacancy in the office of Review Officer (whether or not
an appointment has previously been made to the office); or

\(b\) during any period, or during all periods, when the Review Officer
is absent from duty or from Australia or is for any other reason, unable
to perform the functions of the office of Review Officer.

**(2)** A person appointed to act as the Review Officer during a vacancy
under paragraph (1)(a) must not be appointed for a term that is more
than 6 months, but the person is eligible for re-appointment.

**(3)** Anything done by or in relation to a person purporting to act
under this section is not invalid because:

\(a\) the occasion for the appointment had not arisen; or

\(b\) there was a defect or irregularity in connection with the
appointment; or

\(c\) the appointment had ceased to have effect; or

\(d\) the occasion to act had not arisen or had ceased.

**269ZT** **Provision of resources to Review Officer**

**(1)** The Minister must arrange with the Review Officer for sufficient
resources (including personnel) to be made available to the Review
Officer to enable the Review Officer to perform the Review Officer's
functions effectively.

**(2)** If a person is performing services for the Review Officer under
such an arrangement, the person must perform those services in
accordance with the directions of the Review Officer.

**269ZU** **Review Officer may supply information**

**(1)** Subject to this section, the Review Officer may supply
information (including personal information) received by the Review
Officer under this Act to a person.

**(2)** The Review Officer or a person whose services are being made
available to the Review Officer under section 269ZT must not:

\(a\) except for the purposes of this Act, supply information (other
than personal information) to a person if the supplying of the
information would constitute a breach of confidence; and

\(b\) supply personal information to a person unless the information is
supplied to the CEO, or an officer of Customs designated in writing by
the CEO, for purposes relating to a reinvestigation conducted under
section 269ZZL.

**(3)** Paragraph (2)(a) does not apply to the supply of information to:

\(a\) the Minister; or

\(b\) the CEO; or

\(c\) the Secretary to the Department; or

\(d\) an officer of Customs designated in writing by the CEO; or

\(e\) a person who is employed in the Department and who is designated
in writing by the Secretary to the Department.

**269ZV** **False or misleading information**

**(1)** A person must not give the Review Officer any written
information that the person knows to be false or misleading in a
material particular.

Penalty: 20 penalty units

**(2)** Subsection (1) does not apply to any written information if, at
the time when the person gives it to the Review Officer, the person:

\(a\) informs the Review Officer that it is false or misleading in a
material particular; and

\(b\) specifies in what respect it is, to the person's knowledge, false
or misleading in a material particular.

***Division 9---Review by Review Officer***

**Subdivision A---Preliminary**

**269ZW** **What this Division is about**

+-----------------------------------------------------------------------+
| This Division sets out the procedures for review by the Review        |
| Officer of certain decisions by the Minister or the CEO. It includes: |
|                                                                       |
| -   provisions dealing with definitions and other preliminary matters |
|     (Subdivision A);                                                  |
|                                                                       |
| -   the mechanism for review of certain Ministerial decisions         |
|     (Subdivision B);                                                  |
|                                                                       |
| -   the mechanism for review of certain decisions made by the CEO     |
|     (Subdivision C);                                                  |
|                                                                       |
| -   the keeping of a public record in relation to certain reviews     |
|     conducted under this Division (Subdivision D).                    |
|                                                                       |
| The right to seek review by the Review Officer of Ministerial         |
| decisions is conferred only in respect of original Ministerial        |
| decisions and not in respect of subsequent Ministerial decisions      |
| arising out of reviews of original decisions under subdivision B or   |
| Division 5 or 6.                                                      |
+-----------------------------------------------------------------------+

**269ZX** **Definitions**

In this Division

***application*** means:

\(a\) in Subdivision B---an application for a review of a decision by
the Minister referred to in section 269ZZA; and

\(b\) in Subdivision C---an application for a review of a decision by
the CEO referred to in section 269ZZN.

***approved form*** means an approved form within the meaning of section
269ZXA.

***finding***, in relation to a reviewable decision under Subdivision B,
means a finding on a material question of fact or on a conclusion based
on that fact.

***interested party***, in relation to a reviewable decision, means any
one of the following persons:

\(a\) if there was an application under section 269TB that led to the
making of the reviewable decision---the applicant in relation to that
application;

\(b\) a person representing, or representing a portion of, the industry
producing, or likely to be established to produce, like goods to the
goods the subject of the reviewable decisions;

\(c\) a person who:

\(i\) is or is likely to be directly concerned with the importation of
exportation into Australia of the goods the subject of the reviewable
decision; or

\(ii\) has been or is likely to be directly concerned with the
importation or exportation into Australia of like goods, to the goods
the subject to the reviewable decision;

\(d\) a person who is or is likely to be directly concerned with the
production or manufacture of:

\(e\) the goods the subject of the reviewable decision; or

\(ii\) (ii) like goods to those goods that have been, or are likely to
be, exported to Australia; and

\(e\) a trade organisation a majority of whose members are, or are
likely to be, directly concerned with:

\(i\) the production or manufacture of the goods the subject of the
reviewable decision or of like goods; or

\(ii\) the importation or exportation into Australia of those goods; or

\(iii\) both the activities referred to in subparagraphs (I) and (ii);

\(f\) the Government of the country of export or country of origin:

\(i\) of goods the subject of the reviewable decision that have been, or
are likely to be, exported to Australia; or

\(ii\) of the like goods to those goods that have been, or are likely to
be, exported to Australia.

***reviewable decision*** means:

\(a\) in Subdivision B---a decision by the Minister referred to in
section 269ZZA; and

\(b\) in Subdivision C---a decision by the CEO referred to in section
269ZZN.

**269ZXA** **Approved form**

**(1)** In this Division, a reference to an approved form is a reference
to a form that is approved, by instrument in writing, by the Review
Officer.

**(2)** The instrument is a disallowable instrument for the purposes of
section 46A of the *Acts Interpretation Act 1901.*

**269ZY** **Lodgement of application**

For the purposes of this Division, an application for a review under
Subdivision B or C is lodged with the Review Officer if:

\(a\) it is left at a place designated by the Review Officer for the
purposes of this paragraph; or

\(b\) it is posted by prepaid post to a postal address specified by the
Review Officer in the approved form for the application; or

\(c\) it is sent by electronic facsimile to a facsimile number specified
by the Review Officer in the approved form for the application.

**269ZZ** **Review Officer to have regard to same considerations as
Minister**

**(1)** If the Review Officer is required, in conducting a review under
Subdivision B or C, to determine any matter ordinarily required to be
determined by the Minister under this Act or the Dumping Duty Act, the
Review Officer must determine the matter:

\(a\) in like manner as if he or she were the Minister; and

\(b\) having regard to the consideration to which the Minister would be
required to have regard if the Minister were determining the matter.

**(2)** Subsection (1) applies in respect of goods that have not been
imported into Australia at the time of the Review Officer's
determination in a matter in respect of those goods as if;

\(a\) the Review Officer's determination of the matter were being made
after an importation of those goods into Australia; and

\(b\) the importation occurred at the time of the anticipated
importation of those goods into Australia.

**Subdivision B---Review of Ministerial decisions**

**269ZZA** **Reviewable decisions**

**(1)** This Subdivision deals with the review by the Review Officer of
the following decisions:

\(a\) a decision by the Minister to publish a dumping duty notice under
subsection 269TG(1) or (2) or 259TH(1) or (2), or a countervailing duty
notice under subsection 269TJ(1) or (2) or 269TK(1) or (2);

\(b\) a decision by the Minister under subsection 269TL(1) not to
publish such a notice.

**(2)** A reference to a decision by the Minister in paragraph (1)(a) or
(b) does not include a reference to such a decision made by the Minister
following a review under Division 5 or 6 or this Subdivision.

Note: The Review Officer only has the power to make certain
recommendations to the Minister following a review of a decision under
this Subdivision (see 269ZZK). The Review Officer may not revoke the
Minister's decision or substitute another decision.

**269ZZB** **Overview of a review of a ministerial decision**

The following diagram outlines and summarises the basic procedures in
relation to a review under this Subdivision.

+-----------------------------------------------------------------------+
| Application for review lodged (must be made within 30 days of         |
|                                                                       |
| notification of reviewable decision)                                  |
+-----------------------------------------------------------------------+

**↓**

  -----------------------------------------------------------------------
  Review Officer to publish notice of the review

  -----------------------------------------------------------------------

↓

  -----------------------------------------------------------------------
  Submissions from interested parties

  -----------------------------------------------------------------------

↓

  -----------------------------------------------------------------------
  Review Officer to conduct review

  -----------------------------------------------------------------------

↓

  -----------------------------------------------------------------------
  Review Officer\'s recommendation to Minister

  -----------------------------------------------------------------------

↓

  -----------------------------------------------------------------------
  Minister to consider Review Officer\'s recommendation

  -----------------------------------------------------------------------

+-----------------------------------------------------------------------+
| CEO to undertake further                                              |
|                                                                       |
| investigation                                                         |
+-----------------------------------------------------------------------+

  -----------------------------------------------------------------------
  Minister to make final decision following CEO\'s report

  -----------------------------------------------------------------------

  ----------------------------------- -----------------------------------
  **Original decision affirmed**      **New decision substituted**

  ----------------------------------- -----------------------------------

**269ZZC** **Who may seek a review?**

A person who is an interested party in relation to a reviewable decision
may apply for a review of that decision under this Subdivision.

**269ZZD** **When must an application be made?**

An application for a review must be made within 30 days after a public
notice of the reviewable decision was first published in a newspaper
under section 269ZI.

**269ZZE** **How must an application be made?**

**(1)** application must:

\(a\) be in writing; and

\(b\) be in an approved form; and

\(c\) contain such information as the form requires; and

\(d\) be signed in the manner indicated in the form.

**(2)** Without limiting paragraph (1)(c), an application must:

\(a\) contain a full description of the goods to which the application
relates; and

\(b\) particularise the ground or grounds that, in the applicant's view,
would warrant the reinvestigation of a finding or findings that formed
the basis of the reviewable decision; and

\(c\) specify the finding or findings.

Note: Section 269ZZX and 269ZZY set out requirements concerning
confidential or sensitive commercial information that might be contained
in an application, including the need to accompany the application with
a summary of such information.

**(3)** An application is made when it is received by the Review Officer
after it has been lodged with the Review Officer in accordance with
section 269ZY.

**269ZZF** **Applicant's obligations**

An applicant seeking a review under this Subdivision must establish, to
the satisfaction of the Review Officer, that, on the basis of the
particulars contained in the application, there are reasonable grounds
to warrant the reinvestigation of the finding or findings specified in
the application.

**269ZZG** **Rejection of application---failure to provide sufficient
particulars**

**(1)** The Review Officer must reject an application if the Review
Officer is satisfied that the applicant fails to provide sufficient
particulars in relation to the application, including particulars
concerning the finding or findings to which the application relates,
within the 30 day period referred to in section 269ZZD.

**(2)** Nothing in subsection (1) prevents the Review Officer from
seeking further particulars from an applicant within that period.

**(3)** A reference in subsection (1) to sufficient particulars in
relation to an application includes a reference to:

\(a\) the matters required to be included in the approved form for the
application referred to in paragraph 269ZZE(1)(c); and

\(b\) particulars concerning the application that are sought by the
Review Officer from the app licant.

**269ZZH** **Rejection of application---failure to provide summary of
confidential information**

The Review Officer must reject an application if:

\(a\) the applicant in respect of the application claims that
information included in it is confidential or is information whose
publication would adversely affect a person's business or commercial
interests; and

\(b\) the applicant fails to give a summary of that information to the
Review Officer in accordance with section 269ZZY.

**269ZZI** **Public notification of review**

**(1)** Before the Review Officer begins to conduct a review, the Review
Officer must publish a notice in a newspaper circulating in each State,
the Australian Capital Territory and the Northern Territory, indicating
that the Review Officer proposes to conduct that review.

**(2)** Without limiting the matters that must be dealt with in a notice
under subsection (1), it must;

\(a\) describe the goods to which the application relates; and

\(b\) set out the decision that is sought to be reviewed and the ground
for seeking the review (including the particular finding or findings the
reinvestigation of which is sought by the applicant); and

\(c\) invite interested parties to lodge with the Review Officer, within
30 days starting from the date of publication of the public notice,
submissions concerning the application; and

\(d\) indicate the address at which, or the manner in which, such
submissions can be lodged.

**269ZZJ** **Submissions by interested parties**

Interested parties in relation to a reviewable decision may, within 30
days after the publication of the notice under section 269ZZI, in
relation to a review of that decision, make submissions to the Review
Officer in accordance with that notice.

Note: Sections 269ZZX and 269ZZY set out requirements concerning
confidential or sensitive commercial information that might be contained
in a submission, including the need to accompany the submission with a
summary of such information.

**269ZZK** **The Review**

**(1)** If an application is not rejected under section 269ZZG or
269ZZH, the Review Officer must make a report to the Minister on the
application by:

\(a\) recommending that the Minister affirm the reviewable decision; or

\(b\) recommending that the Minister direct the CEO to reinvestigate a
finding or findings that formed the basis of the reviewable decision,
being the finding or any of the findings specified in the application.

**(2)** In a report under subsection (1), the Review Officer must:

\(a\) if the Review Officer is of the view that the finding or findings
specified in the application should be affirmed---recommends that the
Minister affirm the reviewable decision; and

\(b\) if the Review Officer recommends a finding or findings be
reinvestigated---set out the finding or findings; and

\(c\) set out the reasons for the Review Officer's recommendations.

**(3)** The report must be made;

\(a\) at least 30 days after the public notification of the review under
section 269ZZI; but

\(b\) not more than 60 days after that notification, or such longer
period allowed by the Minister in writing because of special
circumstances.

**(4)** In making the recommendation, the Review Officer:

\(a\) must not have regard to any information other than the relevant
information, and

\(b\) subject the subsection (5), must only have regard to the relevant
information and any conclusions based on the relevant information that
are contained in the application for the review or in any submissions
received from interested parties within 30 days as mentioned in section
269ZZJ.

**(5)** The Review Officer must not have regard to a submission under
subsection (4) if:

\(a\) the person giving the submission claims that information included
in it is confidential or is information whose publication would
adversely affect a person's business or commercial interest; and

\(B\) the person fails to give a summary of that information to the
Review Officer in accordance with section 269ZZY.

**(6)** In this section:

***relevant information*** means:

\(a\) if the reviewable decision was made pursuant to an application
under section 269TB---the information to which the CEO had had regard or
was, under paragraph 269TEA(3)(a), required to have regard, when making
the findings set out in the report under section 269TEA to the Minister
in relation to the making of the reviewable decision: and

\(b\) if the reviewable decision was made pursuant to an investigation
initiated by the Minister as mentioned in section 269TAG---the
information:

\(i\) that was collected for the purposes of that investigation in
accordance with the Minister's requirements; and

\(ii\) that was before the Minister when the Minister made the
reviewable decision.

**269ZZL** **What happens after the Minister receives a
recommendation?**

**(1)** If:

\(a\) the Minister receives a recommendation by the Review Officer to
affirm a reviewable decision; or

\(b\) the Minister does not accept a recommendation by the Review
Officer to require the CEO to reinvestigate a finding or findings that
formed the basis of the reviewable decision;

the Minister must, by public notice, affirm the reviewable decision.

**(2)** If the Minister accepts a recommendation by the Review Officer
to require the CEO to reinvestigate a finding or findings, the Minister
must:

\(a\) in writing, require the CEO to:

\(i\) make further investigation of the finding or findings; and

\(ii\) report the result of the further investigation to the Minister
within a specified period; and

\(b\) by public notice indicate the acceptance of that recommendation
(including particulars of the requirements made of the CEO).

**(3)** The CEO must conduct an investigation in accordance with the
Minister's requirements under subsection (2) and give the Minister a
report of the investigation concerning the finding or findings within
the specified period.

**(4)** In a report under subsection (3), the CEO must:

\(a\) if the Review Officer is of the view that the finding or any of
the findings the subject of reinvestigation should be affirmed---affirm
the finding or findings; and

\(b\) set out any new finding or findings that the CEO made as a result
of the reinvestigation; and

\(c\) set out the evidence or other material on which the new finding or
findings are based; and

\(d\) set out the reasons for the CEO's decision.

**269ZZM** **What happens after a reinvestigation?**

**(1)** After receiving a report by the CEO in respect of a
reinvestigation under subsection 269ZZL(3), the Minister must:

\(a\) affirm the reviewable decision concerned; or

\(b\) revoke that decision and substitute a new decision.

**(2)** The Minister's decision under subsection (1) takes effect from
the time specified by the Minister.

**(3)** Without limiting subsection (1), the Minister may, under that
subsection:

\(a\) publish a dumping duty notice or countervailing duty notice; or

\(b\) vary a dumping duty notice or countervailing duty notice; or

\(c\) revoke a dumping duty notice or countervailing duty notice and
substitute another dumping duty notice or countervailing duty notice (as
the case requires).

**(4)** The Minister must give public notice of his or her decision.

**(5)** In spite of section 269TM, any new dumping duty notice or
countervailing duty notice published in the exercise of a power
conferred on the Minister under subsection (3) or any such notice as
varied or substituted in the exercise of that power, expires:

\(a\) in the case of a notice published after a reinvestigation of a
decision not to publish such a notice---5 years after the publication of
the decision not to publish such a notice; or

\(b\) in the case of a varied or substituted notice---5 years after the
publication of the original notice.

Example: If the reviewable decision relates to a dumping duty notice
that was published on 1 July 1998, and if the Minister, following a
review under this Division, revokes that notice and substitutes a new
dumping duty notice on 1 January 1999, the substituted notice will
expire on 1 July 2003.

**(6)** If:

\(a\) the Minister makes a decision under subsection (1) to revoke or
vary a dumping duty notice or countervailing duty notice (the
***original notice***), or to revoke the original notice and substitute
another notice, with effect fr om a date before the Minister's decision;
and

\(b\) an amount of interim duty has been paid on goods the subject of
the original notice in excess of the amount of interim duty that would
have been payable on those goods as a result of the Minister's decision;

the person who paid the interim duty may apply for a refund of the
excess under Division 3 of Part VIII.

**Subdivision C---Review of CEO's decisions**

**269ZZN** **Reviewable decisions**

This Subdivision deals with the review of the following decisions:

\(a\) a decision by the CEO under subsection 269TC(1) or (2) to reject
an application under subsection 269TB(1) or (2), as the case requires (a
***negative prima facie*** ***decision***):

\(b\) a decision by the CEO to terminate an investigation under
subsection 269TDA(1),(2),(3),(7),(13) or (14) (a ***termination
decision***):

\(c\) decision by the CEO to make recommendations to the Minister under
paragraph 269X(6)(b) or (c) (a ***negative preliminary decision***).

**269ZZO** **Who may seek a review**

The following table sets out who may make an application for a review
under this Subdivision.

**Persons who may apply for review**

**Item** **Reviewable decision** **Applicant**

  ----------- ----------------------------------- ----------------------------
  1           A negative prima facie decision     The person who made the
              under subsection 269TC(1) rejecting application under subsection
              an application made under           269TB(1).
              subsection 269TB(1)                 

  2           A negative prima facie decision     The person who made the
              under subsection 269TC(2) rejecting application under subsection
              an application under subsection     269TB(2).
              269TB(2).                           

  3           A termination decision under        The person who made the
              subsection                          application referred to in
              269TDA(1),(2),(3),(7),(13) or (14). paragraph (a) of subsection
                                                  269TDA(1),(2),(3),(7),(13)
                                                  or (14) (as the case may
                                                  be).

  4           A negative preliminary decision     The person who made the
              under paragraph 269X(6)(b) or (c)   application for an
                                                  assessment of duty under
                                                  section 269V that relates to
                                                  the decision.
  ----------- ----------------------------------- ----------------------------

**269ZZP** **When must an application be made?**

An application for a review must be made within 30 days after the
applicant was notified of the reviewable decision concerned by the CEO.

**269ZZQ** **How must an application be made?**

**(1)** An application must:

\(a\) be in writing; and

\(b\) be in an approved form; and

\(c\) contain such information as the form requires; and

\(d\) be signed in the manner indicated in the form.

Note: Sections 269ZZX and 269ZZY set out requirements concerning
confidential or sensitive commercial information that might be contained
in an application for a review of a termination decision, including the
need to accompany the application with a summary of such information.

**(2)** An application is made when it is received by the Review Officer
after it has been lodged with the Review Officer in accordance with
section 269ZY.

Note: Section 269ZY sets out the manner by which an application may be
lodged with the Review Officer .

**269ZZR** **Rejection of application for review of termination
decision**

The Review Officer must reject an application for a review of a
termination decision if:

\(a\) the applicant in respect of the application claims that
information included in it is confidential or is information whose
publication would adversely affect a person's business or commercial
interest; and

\(b\) the applicant fails to give a summary of that information to the
Review Officer in accordance with section 269ZZY.

**269ZZS** **The review of a negative prima facie decision**

**(1)** The Review Officer must make a decision on an application for
the review of a negative prima facie decision by:

(a)affirming the reviewable decision; or

\(b\) revoking the reviewable decision and substituting a new decision
accepting the application under subsection 269TB(1) or (2) (as the case
requires).

**(2)** As soon as practicable after a new decision is substituted under
subsection (1), the CEO must publish a notice under subsection 269TC(4)
in respect of the application referred to in paragraph (1)(b).

**(3)** In making a decision under this section, the Review Officer must
have regard only to information that was before the CEO when the CEO
made the reviewable decision.

**(4)** The Review Officer's decision must be made within 60 days after
the receipt of the application for the review or such longer period
allowed by the Minister in writing because of special circumstances.

**269ZZT** **The review of a termination decision**

**(1)** If an application for the review of a termination decision is
not rejected under section 269ZZR, the Review Officer must make a
decision on the application by:

\(a\) affirming the reviewable decision; or

\(b\) revoking the reviewable decision.

**(2)** As soon as practicable after the Review Officer has revoked a
reviewable decision under subsection (1), the CEO must publish a
statement of essential facts under section 269TDAA in relation to the
application for a dumping duty notice or countervailing duty notice that
is related to the review.

**(3)** Following the publication of the statement of essential facts
under subsection (2), the investigation of the application concerned
resumes under this Part.

**(4)** In making a decision under this section, the Review Officer must
have regard only to information that was before the CEO when the CEO
made the reviewable decision.

**(5)** The Review Officer's decision must be made within 60 days after
the receipt of the application for the review or such longer period
allowed by the Minister in writing because of special circumstances.

**(6)** The Review Officer must publish his or her decision under this
section in a newspaper circulating in each State, the Australian Capital
Territory and the Northern Territory.

**269ZZU** **The review of a negative preliminary decision**

**(1)** The Review Officer must make a decision on an application for
the review of a negative preliminary decision by:

\(a\) affirming the reviewable decision; or

\(b\) revoking the reviewable decision and substituting a new decision
under subsection 269X(6).

**(2)** If the Review Officer revokes a reviewable decision and
substitutes a new decision under subsection 269X(6), the Review Officer
must, within 7 days after making the new decision, recommend that the
Minister give effect to that decision.

**(3)** In making a decision under this section, the Review Officer must
have regard only to information of the kinds referred to in subsection
269X(5) that was before the CEO when the CEO made the reviewable
decision.

**(4)** The Review Officer's decision must be made within 60 days after
the receipt of the application for the review or such longer period
allowed by the Minister in writing because of special circumstances.

**269ZZV** **Effect of the Reviewable Officer's decision**

The Review Officer's decision on a review:

\(a\) has effect as if it were a decision made by the CEO; and

\(b\) takes effect from the time the Review Officer makes the decision.

**Subdivision D---Public record in relation to reviews**

**269ZZW** **Application**

This Subdivision applies only to:

\(a\) an application for a review of a reviewable decision under
Subdivision B; and

\(b\) an application for a review of a termination decision under
Subdivision C.

**269ZZX** **Public record maintained by Review Officer**

**(1)** The Review Officer must, in relation to each application for a
review:

\(a\) maintain a public record containing:

\(i\) a copy of the application; and

\(ii\) if the Review Officer seeks further information from the
applicant---any such information given to the Review Officer by the
applicant; and

\(iii\) if the application is an application for a review under
Subdivision B---any submissions from interested parties concerning the
application that were received by the Review Officer under section
269ZZI; and

\(b\) at the request of an interested party in respect of the reviewable
decision concerned, make that record available to that party for
inspection.

**(2)** The public record must not contain any information in respect of
which a summary is given to the Review Officer under subsection
269ZZY(1).

**269ZZY** **Confidential and sensitive commercial information**

**(1)** To the extent that information provided to the Review Officer by
a person is claimed by the person to be:

\(a\) confidential; or

\(b\) information whose publication would adversely affect a person's
business or commercial interest:

the person giving that information must, at the time the information is
given to the Review Officer, also give a summary of that information to
the Review Officer for inclusion in the public record maintained under
section 269ZZX.

**(2)** The summary must:

\(a\) contain sufficient detail to allow a reasonable understanding of
the substance of the information; but

\(b\) does not breach the confidentiality or adversely affect the
interest s concerned.

Note: For the consequences of failing to comply with subsection (1), see
sections 269ZZG and 269ZZQ, and subsection 269ZZJ(5).

**Customs Regulations**

**REG 180** **Determination of costs** (subsection 269TAAD (4) of the
Act)

\(1\) In determining an amount to be:

\(a\) the cost of production or manufacture of goods in a country of
export for the purposes of paragraph 269TAAD(4)(a) of the Act; or

\(b\) the administrative, selling and general costs associated with the
sale of goods for the purposes of paragraph 269TAAD(4)(b) of the Act;

the Minister must take into account the matters, and use the methods of
calculation, set out in this regulation.

\(2\) If:

\(a\) an exporter or other seller of like goods keeps records relating
to like goods; and

\(b\) the records:

\(i\) are in accordance with generally accepted accounting principles in
the country of export; and

\(ii\) reasonably reflect the costs associated with the production, or
manufacture, and sale of like goods;

the Minister must calculate the costs using the information set out in
the records.

\(3\) The Minister must take into account the information available to
the Minister concerning the allocation of costs in relation to like
goods, in particular to establish:

\(a\) appropriate amortisation and depreciation periods; and

\(b\) allowances for capital expenditures and other development costs;

including information given by the exporter or other seller of the goods
referred to in subregulation (1) that demonstrates that the exporter or
other seller of the goods has historically used the method of
allocation.

\(4\) If:

\(a\) the Minister identifies a non-recurring item of cost that
benefits:

\(i\) current production of the goods referred to in subregulation (1);
or

\(ii\) future production of those goods; or

\(iii\) current and future production of those goods; and

\(b\) the information referred to in subregulation (3) does not identify
the item;

the Minister must adjust the costs identified by the exporter or other
seller to take that item into account.

\(5\) If:

\(a\) the Minister identifies a circumstance in which costs, during the
investigation period, are affected by start-up operations; and

\(b\) the information referred to in subregulation (3) does not identify
the circumstance;

the Minister must adjust the costs identified in the information:

\(c\) to take the circumstance into account; and

\(d\) to reflect:

\(i\) the costs at the end of the start-up period; or

\(ii\) if the start-up period extends beyond the investigation period -
the most recent costs that can reasonably be taken into account by the
Minister during the investigation.

\(7\) For the purposes of this regulation, the Minister may disregard
any information that he or she considers to be unreliable.

\(8\) A word or expression that is defined in Part XVB of the Act and
used in this regulation has the meaning given by that Part.

**REG 181** **Determination of costs and profits** (subsections
269TAAD(4), 269TAC(5B) and 269TAC(6) of the Act)

\(1\) In determining an amount to be:

\(a\) the administrative, selling and general costs associated with the
sale of goods for the purposes of paragraph 269TAAD (4) (b) of the Act;
or

\(b\) the profit on the sale of goods for the purposes of subsection
269TAC (5B) of the Act; or

\(c\) the normal value of goods for the purposes of subsection 269TAC(6)
of the Act;

the Minister must take into account the matters, and use the methods of
calculation, set out in this regulation.

\(2\) Subject to subregulation (3):

\(a\) the Minister must calculate, for the purposes of paragraph
269TAAD(4)(b) of the Act, an amount representing the administrative,
selling and general costs associated with the sale of the goods; and

\(b\) the Minister must calculate, for the purposes of subsection
269TAC(5B) of the Act, an amount representing the profit of the exporter
or other seller of the goods;

using data relating to the production, or manufacture, and sale of like
goods by the exporter or other seller of the goods referred to in
subregulation (1).

\(3\) If the Minister is unable to calculate an amount using the data
referred to in subregulation (2), the Minister must calculate the
amount:

\(a\) by identifying the actual amounts incurred and realised by the
exporter or other seller in respect of the production, or manufacture,
and sale of the same general category of goods in the domestic market of
the country of export; or

\(b\) by identifying the weighted average of the actual amounts incurred
and realised by selected exporters for the production, or manufacture,
and sale of like goods in the domestic market of the country of export.

\(5\) If:

\(a\) the Minister uses a method of calculation under subsection
269TAC(6) of the Act to calculate an amount representing the profit of
the exporter or other seller of the goods; and

\(b\) the amount calculated exceeds the amount of profit normally
realised by other exporters or producers on sales of goods of the same
general category in the domestic market of the country of export;

the Minister must disregard the amount by which the amount calculated
exceeds the amount of profit normally realised by other exporters or
producers.

\(6\) For the purposes of this regulation, the Minister may disregard
any information that he or she considers to be unreliable.

\(7\) A word or expression that is defined in Part XVB of the Act and
used in this regulation has the meaning given by that Part.

**SCHEDULE 3 OF THE CUSTOMS LEGISLATION**

**(ANTI-DUMPING AMENDMENTS) ACT 1998**

**AMENDMENT AND SUBSEQUENT REPEAL OF THE**

**ANTI-DUMPING AUTHORITY ACT 1988**

**1** **Subsection 3(1) (definition of *Anti-Dumping Act)***

Repeal the definition.

**2** **Subsection 3(1)**

Insert:

> ***Dumping Duty Act*** means the *Customs Tariff (Anti-Dumping) Act
> 1975.*

**3** **Subsection 3(1 )**

Insert:

> ***transfer day*** means the day on which the items in Schedule 1 to
> the *Customs Legislation (Anti-dumping Amendments) Act 1998* (other
> than item 39) commence.

**4** **After paragraph 7(4)(a)**

Insert:

> (aa) be made before the transfer day; and

**5** **Subsection 8A(1)**

After \"the Authority must\", insert \", subject to subsections (1A) and
(1B),\"

**6** **After subsection 8A(1A)**

Insert:

> (1B) Subsection (1) does not apply in relation to an anti-dumping
> measure due to expire more than 8 months after the transfer day.

**7** **Paragraph 8B(1)(c)**

> After \"applicant\", insert \", before the transfer day,\".

**8** **Subsection 9(1)**

After \"delivered to the Authority\", insert \"before the transfer
day\".

**9** **At the end of section 9**

Add:

> \(3\) For the purposes of subsection (2), the Authority must not:
>
> \(a\) commence to consider an anti‑dumping matter on or after the
> transfer day; and
>
> \(b\) report to the Minister later than 120 days after commencing its
> consideration of that matter.

**10** **Amendment of several provisions to remove references to
\"Anti‑Dumping Act\"**

> The provisions set out below are amended by omitting \"Anti‑Dumping
> Act\" (wherever occurring) and substituting \"Dumping Duty Act\":
>
> Subsection 3(1) (definition of ***anti-dumping matter**)*
>
> Subsection 3A(1)
>
> Subsections 7(1), (3), (4) and (4A)
>
> Section 10
>
> Subsection 11(3)

**11** **The whole of the Act**

Repeal the Act.

**SCHEDULE 4 OF THE CUSTOMS LEGISLATION**

**(ANTI-DUMPING AMENDMENTS) ACT 1998**

**APPLICATION, TRANSITIONAL AND SAVING PROVISIONS**

**Definitions for the purposes of application, transitional and saving
provisions generally**

> In this Schedule:

***ADA Act*** means *the Anti-Dumping Authority Act 1988.*

***Affected party*** has the same meaning as in Part XVB of the Customs
Act.

***Authority*** means the Anti-Dumping Authority established by section
4 of the *Anti-Dumping Authority Act 1988.*

***CEO*** has the same meaning as in the Customs Act.

***Customs Act*** means the *Customs Act 1901.*

***Dumping Duty Act*** means the *Customs Tariff (Anti-Dumping) Act
1975.*

***Importer*** has the same meaning as in Part XVB of the Customs Act.

***Interim duty*** has the same meaning as in Part XVB of the Customs
Act.

***Negative preliminary finding***, in relation to goods the subject of
an application under section 269TB of the Customs Act, means a
preliminary finding, under that Act, to the effect that:

> \(a\) there are not sufficient grounds for publication of a dumping
> duty notice or a countervailing duty notice in respect of such goods;
> or

\(b\) there will not be sufficient grounds for such publication after
the importation into Australia of such goods.

***Positive preliminary finding***, in relation to goods the subject of
an application under section 269TB of the Customs Act, means a
preliminary finding, under that Act, to the effect that:

\(a\) there are sufficient grounds for publication of a dumping duty
notice or a countervailing duty notice in respect of such goods; or

> \(b\) there will be sufficient grounds for such publication after the
> importation into Australia of such goods.

***Public record*** has the same meaning as in of Part XVB of the
Customs Act.

***Reviewable decision*** has the same meaning as in Division 9 of Part
XVB of the *Customs Act 1901.*

***Review Officer*** has the same meaning as in Part XVB of the *Customs
Act 1901.*

***Transfer day*** means the day on which the items in Schedule 1 (other
than item 39) commence.

**2** **Application provision**

\(1\) The Customs Act, as amended by this Act, applies in relation to:

\(a\) all applications under section 269TB of that Act as so amended for
publication of dumping duty notices or countervailing duty notices; and

\(b\) all applications under Division 4 of Part XVB of the Customs Act
as so amended for assessment of the duty payable under the Dumping Duty
Act on goods on which an interim duty has been or is paid, whether that
interim duty was paid before, or is paid on or after, the transfer day;
and

\(c\) all applications, under Division 5 of Part XVB of the Customs Act
as so amended, for review of anti-dumping measures, whether those
measures were imposed before, or are imposed on or after, the transfer
day; and

\(d\) all applications, under Division 6 of Part XVB of the Customs Act
so amended, for the accelerated review of dumping duty notices or
countervailing duty notices, whether those notices were published
before, or are published on or after, the transfer day; and

\(e\) all applications, under Division 6A of Part XVB of the Customs Act
as so amended for continuation of anti-dumping measures, whether those
measures were imposed before, or are imposed on or after, the transfer
day; and

\(f\) all applications, under Division 9 of Part XVB of the Customs Act
as so amended for the review of reviewable decisions within the meaning
of that Division made on or after the transfer day.

\(2\) Nothing in subitem (1) implies that the Customs Act as amended by
this Act does not apply in any additional circumstance where it is
expressed to apply because of the operation of item 3,4,5,6, or 7.

**3 Transitional** pro**visions---decisions concerning rejection of
applications under section 269TB of the Customs Act**

\(1\) If, before transfer day:

\(a\) an application is made under section 269TB of the Customs Act as
then in force; but

\(b\) the CEO has neither made a decision to reject, nor made a decision
not to reject, that application:

> then:

\(c\) the application is to be treated, for all purposes, on an after
that day, as if it were an application made under the Customs Act as
amended by this Act; and

\(d\) the ADA Act does not apply in respect of that application.

\(2\) If, before the transfer day:

\(a\) an application is made under section 269TB of the Customs Act as
then in force; and

\(b\) the CEO decides to reject that application; and

\(c\) the applicant refers the decision to the Authority for review; but

\(d\) that review is not completed;

then:

\(e\) the review is to continue to be dealt with by the Authority; on
and after that day, under section 8 of the ADA Act; and

\(f\) if the Authority confirms the decision---the application lapses;
and

\(g\) if the Authority revokes the decision---an investigation in
respect of the application is to be initiated under the Customs Act as
amended by this Act as if;

\(i\) the Customs Act as so amended had been in force when the
application was made; and

\(ii\) the CEO had decided not to reject the application.

\(3\) If, before transfer day:

\(a\) an application is made under section 269TB of the Customs Act as
then in force; and

\(b\) the CEO decides to reject that application; and

\(c\) the applicant does not refer the decision to the Authority for
review:

then:

\(d\) the application is to be dealt with, on and after that day, for
all purposes (including working out time limits for a possible review of
that decision by the Review Officer) as if the Customs Act as amended by
this Act had been force when the application was made; and

\(e\) the ADA Act does not apply in respect of the application.

**4 Transitional provisions---Customs investigations that have not
resulted in a preliminary finding before transfer day**

\(1\) If:

\(a\) an application is made under section 269TB of the Customs Act as
in force before the transfer day; and

\(b\) the CEO has initiated an investigation in respect of that
application but has not, before that day, made a preliminary finding;
and

\(c\) not more than 100 days have passed since the initiation of the
investigation:

> the investigation is to be treated, on and after that day, for all
> purposes, as if it had, at all times, been an investigation, under the
> Customs Act as amended by this Act, in respect of an application made
> under the Customs Act as so amended.

\(2\) For the purposes of so treating the investigation, and without
limiting the generality of subitem (1):

\(a\) the time limits for the making of a preliminary affirmative
determination, the placing of a statement of essential facts on the
public record, and the making of a report in respect of the
investigation to the Minister, under the Customs Act as amended by this
Act, are to be worked out from the date of the actual initiation of the
investigation under the Customs Act as in force before the transfer day;
and

\(b\) if a preliminary affirmative determination is so made, securities
may be imposed in accordance with subsection 269TD(3) of the Customs Act
as so amended.

**5** **Transitional provisions---Customs investigations terminated
before transfer day**

\(1\) If

\(a\) an application is made under section 269TB of the Customs Act as
in force before the transfer day; and

\(b\) the CEO has initiated an investigation in respect of that
application but decides, before that day, to terminate that
investigation under section 269TDA as so in force; and

\(c\) not more than 100 days have passed between the initiation of the
investigation and the making of that decision; and

\(d\) the applicant, before that day, refers the decision to the
Authority for review under 7A of the ADA Act but that review is not
completed before that day;

> then:

\(e\) the review is to continue to be dealt with by the Authority, on
and after that day, under the ADA Act; and

\(f\) if the Authority confirms the decision---the investigation lapses;
and

\(g\) if the Authority rejects the decision---the investigation is to be
remitted to the CEO to be dealt with in accordance with subitem (2).

\(2\) If an investigation is remitted to the CEO in the circumstances
set out in subitem (1):

\(a\) subject to paragraph (b) and (c), the investigation is to be dealt
with in the same manner as if it were an investigation of an application
made under the Customs Act as amended by this Act; and

\(b\) if, when the investigation is remitted, more than 110 days have
passed since the date of initiation of the investigation---the CEO must
place the statement of essential facts relating to the investigation on
the public record as soon as practicable after the investigation is
remitted; and

\(c\) the report on the investigation that is required to be made to the
Minister is, in the circumstances to which paragraph (b) applies,
required to be so made within 45 days after placing of the statement of
essential facts on the public record.

**6 Transitional provisions---positive preliminary finding made by CEO
before transfer day**

\(1\) If, before the transfer day:

\(a\) an application is made under section 269TB of the Customs Act as
then in force; and

\(b\) the CEO makes a positive preliminary finding in respect of the
application:

> the CEO must, if he or she has not already done so:

\(c\) give public notice of that finding; and

\(d\) refer the question whether the publication of the notice sought in
the application is justified to the Authority for determination under
the ADA Act.

\(2\) If public notice of the finding is given on or after the transfer
day, it is required to be given in accordance with section 269ZI of the
Customs Act as in force immediately before that day.

\(3\) For the purposes of the operation of the ADA Act in respect of the
referral of the question referred to in paragraph (1)(d), that referral
is treated as having taken place under subsection 269TD(2) of the
Customs Act as in force immediately before the transfer day, whether it
took place before, or takes place on or after, that day.

Note: The determination of a question referred to the Authority under
subsection 7(1) of the ADA Act may involve the exercise of termination
powers under section 7B of that Act or the acceptance of an undertaking
under section 7C of that Act.

**7 Transitional provisions---negative preliminary finding made by CEO
and referred to ADA before transfer day**

\(1\) If, before transfer day:

\(a\) an application is made under section 269TB of the Customs Act as
then in force; and

\(b\) the CEO makes a negative preliminary finding in respect of the
application; and

\(c\) the applicant refers the finding to the Authority for review; but

\(d\) that review is not completed;

> then:

\(e\) the review is to continue to be dealt with by the Authority, on
and after that day, under section 8 of the ADA Act; and

\(f\) if the Authority confirms the finding---the investigation lapses;
and

\(g\) if the Authority rejects the finding ---the investigation is,
despite the terms of subsection 8(2) of the ADA Act, to be remitted to
the CEO.

\(2\) If, before transfer day:

\(a\) an application is made under section 269TB of the Customs Act as
then in force; and

\(b\) the CEO makes a negative preliminary finding in respect of the
application; and

\(c\) the applicant does not refer the finding to the Authority for
review; but

\(d\) the period of so referring the finding has not expired;

> then:

\(e\) the applicant may refer the matter to the Authority as if the
amendments of the Customs Act made by this Act had not been made; and

\(f\) if the applicant does so, the review is to be dealt with by the
Authority, under section 8 of the ADA Act; and

\(g\) if the Authority confirms the finding---the investigation lapses;
and

\(h\) if the Authority rejects the finding---the investigation is,
despite the terms of subsection 8(2) of the ADA Act, to be remitted to
the CEO.

\(3\) If an investigation is remitted to the CEO in the circumstances
set out in subitem (1) or (2):

\(a\) subject to paragraphs (b) and (c), the investigation is to be
dealt with in the same manner as if it were an investigation of an
application made under section 269TB of the Customs Act as amended by
this Act; and

\(b\) if, when the investigation is remitted, more than 110 days have
passed since the date of initiation of the investigation---the CEO must
place the statement of essential facts relating to the investigation on
the public record as soon as practicable after the investigation is
remitted; and

\(c\) the report on the investigation that is required to be made to the
Minister is, in circumstances to which paragraph (b) applies, required
to be so made within 45 days after placing the statement of essential
facts on the public record.

**8 Saving provision---applications for assessment of duty**

\(1\) If, before the transfer day;

\(a\) an application is made under section 269V of the Customs Act as
then in force requesting an assessment of duty or goods entered for home
consumption during a particular importation period; and

\(b\) the CEO has not made a decision under subsection 269X(6) in
relation to that application;

then, for the purpose of the CEO's dealing with that application on and
after that day, Division 4 of the Customs Act as in force before that
day continues to apply in relation to the CEO's consideration of the
application as if the amendments of the Customs Act made by items 63,
64, 65 and 66 of Schedule 1 to this Act had not been made.

\(2\) If, before transfer day:

\(a\) an application is made under section 269V of the Customs Act as
then in force requesting an assessment of duty on goods entered for home
consumption during a particular importation period; and

\(b\) the CEO has made a negative preliminary decision in relation to
that application; and

\(c\) the applicant refers the negative preliminary decision to the
Authority for review; but

\(d\) the review is not completed;

> then:

\(e\) the review is to continue to be dealt with by the Authority, on
and after that day, under section 8B of the ADA Act; and

\(f\) section 269Y of the Customs Act has effect, on and after that day,
in relation to any recommendation received by the Minister from the
Authority, as if the amendment of that section made by item 69 of
Schedule 1 to the Act had not been made.

\(3\) If, before transfer day:

\(a\) an application is made under section 269V of the Customs Act as
then in force requesting an assessment of duty on goods entered for home
consumption during a particular importation period; and

\(b\) the CEO has made a negative preliminary decision in relation to
that application; and

\(c\) the applicant does not refer the decision to the Authority for
review; but

\(d\) the period for so referring the decision has not expired;

then

\(e\) with effect from the transfer day, the applicant's right to refer
the decision to the Authority for review is terminated but the applicant
may instead, within the time limit that would have applied for so
referring the decision, apply instead to the Review Officer to review
the decision; and

\(f\) if the applicant does so, the review is to be dealt with by the
Review Officer under Division 9 of the Customs Act as amended by this
Act as if it were a review, sought in accordance with the requirements
of that Division, of a decision made under the Customs Act as amended by
this Act.

**9 Saving provision---review of interim duty**

If, before the transfer day;

\(a\) interim duty has been paid under the Dumping Duty Act on goods
entered for home consumption under the Customs Act as so in force before
that day; and

\(b\) the CEO has received an application from an affected party, or a
notice from the Minister, under Division 5 or Part XVB of the Customs
Act as so in force, requesting a review of the rate of interim duty
imposed on those goods;

> that Division of the Customs Act as so in force continues to apply. On
> and after that day, in respect of that review as if the amendments of
> the Customs Act made by this Act had not been made.

**\_\_\_\_\_\_\_\_\_\_**

[^1]: repealed by Act No. 207 -- but remains in force under transitional
    arrangements for measures imposed pre 1/1/93.