RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/W/63
1 March 1999
(99-0763)
Committee on Anti-Dumping Practices
Ad Hoc Group on ImplementationOriginal:  English
TOPIC 1*  - ARTICLE 6.5: TREATMENT OF CONFIDENTIAL INFORMATION
TOPIC 2*  - PERIOD OF DATA COLLECTION
TOPIC  6*  - ARTICLE 6.2:  HEARINGS
TOPIC 7*  - ARTICLE 6.9:  DISCLOSURE OF FINDINGS
Paper by Australia
The following communication, received on 25 February 1999, has been received from the
Permanent Mission of Australia.
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The following updates previous information provided to the Ad Hoc Group in
G/ADP/AHG/W/29 and 47 following changes to Australia’s anti-dumping administration (notified in
G/ADP/N/1/AUS/2).
Important differences in the new system, which came into operation on 24 July 1998, include
the following.
• The Anti-Dumping Authority (ADA) has been abolished, and the Australian Customs Service
(Customs) is now the sole investigative agency.
• The legislation no longer requires preliminary findings, but preliminary affirmative
determinations are needed for the application of provisional measures and the consideration of
price undertakings.
• The final report and recommendation to the Minister will be completed by day 155 (previously
the ADA reported to the Minister by day 220).
• A Statement of Essential Facts on which Customs intends to base its final report to the Minister is
made available to interested parties by day 110.   Parties will have 20 days to respond to the issues
raised in the statement, and these submissions will be taken into account when formulating the
recommendation.
• A Trade Measures Review Officer (TMRO) has been established, external to Customs.   The
TMRO has the power to review decisions of Customs that a party considers have been adverse toits interests.   Decisions by Customs such as not to initiate an investigation, to terminate an
investigation, or not to accept an application for review may be referred to the TMRO for
reconsideration.   The TMRO may also review cer tain Ministerial decisions regarding measures.
                                                     
* See document G/ADP/W/401 for descriptions of the topics.G/ADP/AHG/W/63
Page 2
The following charts set out the new procedures.
Prima Facie Investigation                                                            (20
days)
Governments of nominated exporting countries are notified of the
receipt of a properly documented application.
Application is examined to determine whether:
- the application is supported by a sufficient part of the domestic
industry, and
- there is an Australian industry producing like goods, and
- the evidence provided is sufficient to justify the initiation of the
investigation.
Day 0 -Investigation is publicly notified inviting submissions from
interested parties within 37 days.
Public File containing non-confidential documentation is opened.
Investigation
(Day 110)
Advice provided to importers and exporters.
Detailed analysis of applicant’s claims.
Domestic verification visits undertaken.
Material injury analysis.
Submissions from interested parties considered.
Overseas verification visits conducted.Not less than Day 60 – Provisional measures may be imposed.
Consultations with interested parties (where appropriate).
Other submissions considered.
Day 110 (or before) – Statement of Essential Facts publicly issued.
Preparation of Final Report
(Day 155)
Day 130 – submissions in response to Statement of Essential Factsreceived.
Consideration of submissions.Report and recommendation to Minister prepared based on:
- the application, and
- submissions from interested parties, and
- the investigation, and
- any other relevant material.G/ADP/AHG/W/63
Page 3
Customs investigation.
Preliminary affirmative determination
and securities available.
(60+ days) ss. 42 & 269TD
Statement of essential facts.
(maximum 110 days*) s. 269TDAA
Recommendation to Minister.
(maximum 155 days*) s. 269TEATMRO review.
Rejection affirmed or
case initiated.
(60 days) s. 269ZZR
TMRO review.
Termination affirmed
or revoked.
(60 days) s. 269ZZS
TMRO review.
Recommendation to Minister to affirm original decision or remit matter to Customs.
(60 days) s. 269ZZJ
Customs further investigation and report to Minister.
(Within period specified by Minister) s. 269ZZK(3) & (4)TerminateCustoms prima facie  screening.
(20 days) s. 269TC
InitiateRejectApplication for dumping or countervailing duty notice.
s. 269TB
Revoke
Interested party can apply to TMRO for review.
(30 days) s. 269ZZB
Minister decides whether to remit.
s. 269ZZK(1) & (2)
Minister decides whether to affirm original decision, vary the
notice or revoke original notice and substitute a new notice.
s. 269ZZLMinister's decision to impose duties or not.
 ss. 269TG - 269TL
* Minister may extend
these timeframes where
it is reasonable to do so.s. 269ZHIMinister affirms original
decision.
s. 269ZZK(1)Recommend Affirmation Recommend Remission
Not Remit RemitProcess for Considering an Application for the Imposition of Anti-Dumping Measures
Minister may accept undertaking.
The investigation is suspended in
relation to that exporter or country.
ss. 269TG(6) & 269TJ(3C)Undertaking
OfferedG/ADP/AHG/W/63
Page 4
Applications for continuation of measures, reviews of measures and final duty assessments
will henceforth be conducted by Customs.   Timeframes for inquiries have been brought into line with
applications for new measures, that is, a Statement of Essential Facts will be placed on the public
record by day 110 that invites submissions in response and a final report and recommendation will be
made by day 155.
Topic 1:  Treatment of confidential information
In addition to the information provided in G/ADP/AHG/W/29, note that the treatment of
confidential information is different under judicial  review than during the investigations by Customs.
Where a party in an anti-dumping or countervailing case institutes legal action, it is open to
the court to enable a party’s legal representatives and/or experts, to have access to confidentialinformation for the purpose of those legal proceedings.   Access to confidential information is
granted:
• subject to the legal representative giving an unde rtaking not to disclose the information to the
party he or she is representing or to any other person, except those set out in the undertaking, e.g.
experts; and
• where information is disclosed to an expert, e.g. an accountant, that person may be required not
only to undertake not to disclose the information to others, but also not to act on behalf of the
person he or she is representing in the legal proceedings in other dealings.
Topic 2:  Period of data collection
At initiation Australia nominates the “investigation period” which defines the period for
examination of dumping.
The legislation also provides that a different period can be notified for injury analysis.
Australia does not specify a fixed period for this purpose– usually it is the period after which injury isalleged to have commenced plus one additional year.
The “investigation period” is also relevant to the determination of several matters including
ordinary course of trade, the weighted  average dumping margin, and termination.
The “investigation period” period notified has varied between cases.  At times it has been
notified as being equal to the period nominated for injury analysis (i.e. the injury period plus one-year).  This has been found to be excessive in terms of data analysis
1 as well as placing an undue
burden upon exporters.  More recently, the investigation period has equalled the injury period only, or
a period less than the injury period.
Topic 6:  Article 6.2 - Hearings
The previous comments should be replaced by the following in view of the change in the
system.
Australian anti-dumping and countervailing legislation does not explicitly specify the holding
of meetings as a formal procedural step.  This could occur if the parties want it.   However, experience
                                                     
1 For example, the ordinary course of trade requir ement refers to costs over the investigation period
(refer also Article 2.2.1).  The Australian legislation does not prescribe any different period for profitability
tests.G/ADP/AHG/W/63
Page 5
under the ADA is that such meetings may have had limited utility.  Customs does meet with interested
parties as part of the inquiry process where oral submissions can be made.  Under Australian
administrative law, Customs is obliged to disclose, to the other party any fact or opinion, it intends to
rely on, which may arise out of such a meeting that is adverse to that party and provide an opportunity
for that party to respond.
This opportunity to be aware of the facts upon which the Minister makes a decision is
provided by the Statement of Essential Facts.
Topic 7:  Provision of Essential Facts
The former practice was that the Anti-Dumping Authority issued a statement of essential facts
at about day 80-90 of 110 day inquiry and allowed 7 days for interested parties to respond.
Under the new regime, Customs issues a statement of essential facts at day 110 in the 155 day
investigation process.   Interested parties are allowed 20 days to respond to matters contained in that
statement.
Section 269TDAA of the Customs Act states:
1. The CEO [Chief Executive Officer of the Australian Customs Service ] 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 269ZI, place on the public record astatement of the facts (the statement of essential facts) on which the CEO proposes to base a
recommendation to the Minister in relation to the 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) is to do so would, in the CEO’s opinion,
prevent the timely placement of the statement of essential facts on the public record.
The public record, in this case (and with statem ents issued for other types of investigations
such as continuation inquiries and reviews of meas ures), means the non-confidential statement is sent
to known interested parties, is available to other interested parties on request, placed on the Internet
and on the public file.
The statement itself is essentially an exposure draft of the report to the Minister. The
statement is presented in three separate sections.   The background material gives details on the
inquiry process, the applicant(s), the Australian industry and market, the goods and the like goods.
The second section provides information on the investigation, e.g. normal values and export
prices.   The statement give exporter and country details and outlines the method(s) used to determineeach of these costs with reference to the relevant section of the Customs Act.   The proposed dumping
margins are established.G/ADP/AHG/W/63
Page 6
The third section of the statement covers material injury and causal link.   It gives an analysis
of the applicant’s claims against the findings made by Customs.   Although draft recommendations
are not set out in the statement, the facts themselves give a strong indication of Customs direction.
Interested parties are invited make submissions in response to the matters raised in the
statement.   Provided these submissions are received by a nominated date, they will be taken into
account in the report and recommendation to the Minister.   (Injured parties have the right of appeal to
an independent body in relation to the Minister’s decision.)
A public file is also maintained which gives interested parties access to all correspondence
and reports written by Customs and submissions lodged by interested parties.   Applications, and othersubmissions, are not acceptable unless accompanied by non-confidential versions for placement on
the public file.   Likewise all Customs reports and relevant correspondence are prepared in such a
manner suitable for the public file.   The public file is available from day 1 of an investigation and
may be viewed and copied during business hours by any interested party.   Only information that is
strictly commercially sensitive is withheld from the public file.
The report to the Minister, the statement of essential facts and relevant notices are also
available on the Internet.
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