WORLD TRADE  
ORGANIZATION  G/ADP/Q1/AUS/4 
G/SCM/Q1/AUS/4 30 June 2004 
 
(04-2821) 
Committee on Subsidies 
and Countervailing Measures Original:   English 
 
 
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER 
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS 
 
Replies to Questions posed by the UNITED STATES1 
Regarding the Notification of AUSTRALIA2 
   The following communication, dated 30 June 2004,  is being circulated at the request of the 
Delegation of Australia. 
 
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Question 1.  With regard to new section 269T(5C)
 
 
 Regarding the phrase “A country has an economy in transition at a time …” [emphasis 
added], please explain whether this means that each time a country is examined in an investigation or review, Australia will newly dete rmine whether or not a country is an “economy 
in transition”. 
 Reply
 
  Australia does not have a system where countries are subject to a determination that they are an economy in transition.  A finding that a country  is an economy in transition must be made on a 
case by case basis.  The reference to “at a time” is a reference to the time at which the Minister makes 
a normal value determination under the provisions  of section 269TAC(5D) of the Customs Act 1901 
 
 The question of whether a country is an economy could arise on review if an applicant states 
that the normal value should be determined on a di fferent basis than that originally found.  For 
example, it might be alleged that the normal valu e should be re-ascertained for the purpose of a 
review on the basis that the country from whic h the goods are exported is now an economy in 
transition or, alternatively in another case, that the country in question is no longer an economy in 
transition..  We have not been con fronted with such a case and believe th at it is unlikely that this issue 
will arise.  
Question 2.  With regard to new section 269TAC(5D) and (5E)
 
 
 Please explain how the new provisions of (5D)(a)(ii) and (5D(b)(ii), which appear to envision circumstances in an “economy in tr ansition” where “market conditions do not prevail 
in that country in respect of selling price of those like goods” concur with the insertion 269T(5C) indicating that an economy in transition can exist only when, “at the time, that the 
                                                     
 
1 G/ADP/Q1/AUS/3-G/SCM/Q1/AUS/3 
2 G/ADP/N/1/AUS/2/Suppl.2 G/ADP/Q1/AUS/4 
G/SCM/Q1/AUS/4 Page 2 
 
 
 government does not:[…] determine, or substantially  influence, the domestic price of goods in 
that country.”  
 
Reply
 
 
 Section 269T(5C) addresses the situation of th e economy of a country as a whole, whereas the 
provisions contained in sections 269TAC(5D) and (5 E) address the particular question of whether 
market conditions prevail in respect of the domestic price of like goods.    
 These sections reflect the essence of what is c onsidered to be an economy in transition.  A 
former centrally planned economy can no longer be so considered because the government no longer 
has a monopoly or substantial monopoly over trade or domestic prices in the country as a whole. 
  However, it is recognised that as these former centrally planned economies are in the process 
of transition to a full market economy, some forms of control (especially over domestic prices) may 
exist in respect of certain goods and exporters.  Th erefore the focus of an enquiry in the case of an 
economy in transition is to establish whether market  conditions prevail in that country in respect 
individual exporters and in respect of their dome stic selling price of the like goods.  If market 
conditions do not prevail, then it is not appropriate to use domestic sale prices for the goods sold by 
the particular exporter, or by ot hers sellers of the like product. 
 
Question 3. With regard to new section 269W(1A)(b)
 
 (a) Please clarify the operation of this provisi on, e.g., who will be allowed to provide the 
CEO further evidence?  Are there any limitations on who may qualify as “someone else” 
under the new provision 269W(1A)(ii)? 
 (b) Under what circumstances will the CEO permit this other party to submit further 
evidence more than 30 days after th e lodgement of the application?  
 
Reply
 
 
(a)  The purpose of this provision is to recognise th at in some cases there may be circumstances in 
which the applicant, who is the importer, may not have access to the necessary information to 
establish the amount of the normal value or c ountervailable subsidy.  In these cases the 
information will usually be held by the ove rseas exporter who for commercial reasons may 
not be willing to provide it to the importer.  
  In short, “someone else” is someone who has in formation that is rele vant to determine the 
normal value.  (b)  No particular circumstances have been prescr ibed.  The CEO will have regard to a range of 
factual and procedural and practical issues in determining whether or not to accept evidence 
after the 30 day period.  The major consider ation would be how long a period has been 
requested.  Extensions of between 14 to 21 days  would be approved as a matter of routine.  
However, delays beyond this point would star t to cause administrative difficulties and would 
have to be carefully considered.  Other releva nt considerations would be the reasons given by 
the other party to explain the delay and the like lihood that they could provide the information 
within the additional time that has been requested. 
  G/ADP/Q1/AUS/4 
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 Question 4.  With regard to new section 269X(3A)  
 (a) Will the CEO provide the applicant a no- conf idential summary of this information?  If 
so, will the summary be placed on the public record? 
 
(b) What will the CEO require to establish th at the exportesr consent to providing the 
information to the applicant (e.g.  a written waiver)?  
 
Reply
 
 
(a)  The duty assessment scheme is outside the prov isions set out in section 269ZJ, which sets out 
the requirements to maintain a public file  and to provide nonconfidential summaries. 
 (b)  A written consent would be required to estab lish that the exporter consented to providing the 
information to an applicant. 
 
Question 5.  With regard to new section 269X(5B)(a)
 
  What is the difference between the “resale pr ice” and the “subsequent selling price” as 
referred to in 269X(5B)(a)(iii)?  How will movement in these prices be reflected in the 
calculation of export price?  
 
Reply
 
  The references to “ resale price” and “subseque nt selling price” are taken directly from the 
provisions of Article 9.3.3.   
  The terms “resale price” and “subsequent selli ng price” are distinguished from each other and 
we take these words to refer to prices at different le vels in a distribution chain.  The resale price must 
be the price received by the importer and the subseque nt selling price must be the price that is next 
down the distribution chain.  So the provision appears to envisage that in order that the duty may be 
exempted from the export price construction, this fu rther selling price should reflect the movement in 
the price received by the importer.  This requirement  appears to be directed to the possibility of some 
form of compensation between the importer and the subsequent seller.  It would seem, however, that 
if there is no subsequent sale – for example if th e goods are used in a process of manufacture – this 
should not mean that the article has no application. 
 
 We have no experience yet on how we will re flect the movement in these prices in the 
calculation of the export price.  Issues to be c onsidered will include: what constitutes conclusive 
evidence; and what regard should be had to movements in costs and movements in prices. 
 
Question 6.  With regard to new subsection 269TAE(2C)(b)(ii)
 
 
 New subsection 269TAE (2C)(b)(ii) of the Customs Act 1901 states that cumulation is authorized when applications for investigations  are “lodged with the Customs on different days 
but the investigation periods for all the inv estigations of those exportations overlap 
significantly”. 
 
(a) Please explain what is meant by the term  “overlapping significantly”.  For example, 
assume the injury investigation period for an investigation into imports of product X 
from country A initiated in 2003 encompassed the years 2000 through 2002, and an investigation into imports of product X fr om country B initiated in 2004 encompassed G/ADP/Q1/AUS/4 
G/SCM/Q1/AUS/4 Page 4 
 
 
 the years 2001 through 2003.  Would the Australian authority conclude that the two 
investigation periods “overlap significantly”? 
 (b)  Is cumulation authorized under new subsection 269TAE (2C)(b)(ii) in the later 
investigation if the Australian authority has made a negative injury or dumping 
determination in the earlier investigation?   If so, please explain the rationale for 
permitting cumulation in such circumstances. 
 (c)  How does new subsection 269TAE(2C)(b)(ii) comply with the requirement of Article 3.3 
of the AD Agreement that, for an authority to engage in cumulative analysis, imports 
from more than one country must be “simultaneously subject to anti-dumping investigations”?  
 
Reply
 
 
(a) The term “ overlap significantly” would be interpreted as requiring essentially the same 
investigation period3.  Australian practice is to nominate a period of 12 months as the period 
of investigation.  In one case the period was 18 months but this is considered exceptional.  
Based on a normal 12 month investigation period, the example given by the US is therefore 
not the type of example that arises under Aust ralian anti dumping inves tigations.  Australia 
would consider that the overlapping time pe riods for each investigation period to be 
essentially the same with differences being no more than a few months at most.  
 (b) It is envisaged that although there may be different investigation periods, these differences 
would not be significant.  Technical, more than substantial, may the best way to describe it.  
The dumping investigations would be carried out simultaneously, reflected in a single report 
to the Minister.  As the Minister is the authority who determines dumping and injury he can take into account his findings in the case of one country before deciding the other.  With these 
stipulations the Minister should not be in a position to cumulate in circumstances where it is inappropriate to do so under the Agreement. 
 
(c) It should be pointed out that the usual practi ce in Australia is for a dumping application to be 
brought against several countries in the one app lication and for the investigation periods to be 
the same for each country.  However, the re quirement under Article 3.3 of the WTO Anti-
Dumping Agreement is not that all applications must be filed on the same day but that the investigations be carried out simultaneously.  The requirement that investigations are carried 
out simultaneously is met by the requirement that different investigation periods must 
significantly overlap.   
 
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3 Section 269T defines the investigation period as the period nominated by the CEO in the notice of 
initiation.