Commencement of Significant New Anti-Dumping and Countervailing Legislation


Commencement of Significant New Anti-Dumping and Countervailing Legislation

We have previously advised of the passage of several “Tranches” of anti-dumping legislation in late 2012 as part of the Federal Government’s “streamlining” program for reform of Australia’s anti-dumping regime.  The first Tranche was implemented late in 2012.

By way of a series of Australian Customs Dumping Notices (“ACDN”), the Australian Customs and Border Protection Service (“Customs”) announced the commencement of “Tranches” 2, 3 and 4 of that Streamlining Legislation which represents significant changes to Australia’s anti-dumping regime.

Customs has also released ACDN with advice on the process for updating the Dumping and Subsidies Manual and also for the conduct of new anti-circumvention Inquires.

Some details of these Tranches are below.

Tranche 2 of the streamlining legislation

In summary, this legislation implements the Streamlining Policy by:

  • establishing a new appeals process including a new anti-dumping review panel to replace the existing TMRO review
  • extending the scope of reviewable decisions to include decisions of the Minister following a review of anti-dumping measures or a Continuation Inquiry
  • providing for flexible extensions to timeframes for dumping and countervailing investigations of enquiries and
  • formally establishing the International Trade Remedies Forum as a body comprised of industry stakeholders to provide advice and recommendations to the Minister.

According to ACDN 2013/42, the relevant legislation is to commence on 10 June 2013.

Tranche 3

Tranche 3 implements the streamlining legislation by:

  • amending the legislative provisions dealing with countervailable subsidies in accordance with the provisions of the WTO Agreement on Subsidies and Countervailing Measures by establishing that “all the facts available” can be used when determining whether a countervailable subsidy has been received in respect of particular goods or the amount of a countervailable subsidy in respect of those goods were a relevant entity (such as an exporter or foreign government) has not provided relevant information to the CEO within a reasonable period of time
  • enabling anti-dumping measures to be amended, including by altering the level of applicable duties, following a Continuation Inquiry if the Minister decides to continue the measures
  • repealing subsection 269TAC(13) of the Act to remove the limitations to including profit when constructing a normal value because of subsection 269TAAD of the Act and
  • allowing the Minister to utilise additional forms of interim dumping duty beyond the single form that is currently available in the Act including a new “floor price” duty method.

According to ACDN 2013/43, Tranche 3 commenced on 11 June 2013.

Tranche 4

Tranche 4 implements the Streamlining Legislation by:

  • further amending relevant legislative provisions dealing with countervailable subsidies by amendments relating to the definition of a “subsidy” and other technical amendments
  • establishing a new “anti-circumvention framework” that will allow Inquiries to be conducted to address the circumvention of trade measures by exporters or importers of goods which are subject to anti-dumping measures
  • strengthening the provisions that deal with non-co-operation of interested parties including establishing 3 categories of exporters being “co-operative”, “residual” and “uncooperative” and
  • extending the definition of “interested parties”.

According to ACDN 2013/45, Tranche 4 commenced on 11 June 2013.  In addition, ACDN 2013/46 sets out the manner in which such new anti-circumvention enquiries will be conducted.  The relevant legislation sets out a number of examples of “circumvention” actions which could trigger an Inquiry at the instigation of either Australian industry, Customs or the Minister.

Dumping and Subsidies Manual

The ACDN referred to above all include reference to the fact that Customs’ current Dumping and Subsidies Manual has not been updated in time for the commencement of these relevant provisions.  According to Customs, this is a consequence of the scope of the changes required, implementation timeframes and the need to undertake a stakeholder consultation process of the draft Manual.
Accordingly, the program for updates of the Manual updates has been developed and amendments are to occur in 2 stages as follows:

  • Stage 1, predominantly focusing on Tranches 2 to 4 will occur by the end of 2013 and
  • Stage 2, which predominantly focuses on Tranche 6 changes (which is currently before the Parliament) will occur in the first half of 2014 (dependent on the passage of that legislation).

Further details of the updating of the Manual can be found in ACDN 2013/45.

Commencement of Review Panel

As referred to in previous updates, the Minister has previously announced the appointment of members of the Anti-Dumping Review Panel (Panel) which was formally established as and from 10 June 2013.  From that date reviews of decisions made by the Minister and the CEO of Customs in respect of dumping and countervailing investigations will be completed by the Panel which will impact on all existing Investigations and Inquiries.  The Panel website should commence during the week commencing 10 June 2013.

Anti-Dumping Commission

As previously advised, the Commission will commence on 1 July 2013.

Impact of the amendments

There will be significant changes effected by the new legislation and changes to practice.  Those affected will include importers, exporters, Australian industry and service providers such as licensed customs brokers.  As a result, careful attention to the effect of these amendments needs to be taken into account immediately.