Customs Act 1901 Act No. 6 of 1901 as amended This compilation was prepared on 9 August 2008 taking into account amendments up to Act No. 75 of 2008 Volume 3 includes: Table of Contents Sections 269SM - 277A Schedule I The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Contents Part XVB-Special provisions relating to anti-dumping duties 1 269SM Overview of Part 1 Division 1-Preliminary 3 269SN What this Division is about 3 269T Definitions 3 269TAAAAnti-dumping measures not to apply to New Zealand originating goods 15 269TAABMember countries, developing countries and special developing countries 15 269TAACDefinition-countervailable subsidy 16 269TAADOrdinary course of trade 17 269TAA Arms length transactions 18 269TAB Export price 20 269TAC Normal value of goods 22 269TACANon-injurious price 28 269TACBWorking out whether dumping has occurred and levels of dumping 28 269TACCWorking out whether benefits have been conferred and amounts of subsidy 31 269TAE Material injury to industry 34 269TAF Currency conversion 39 269TAG Minister may take anti-dumping measures on own initiative 41 269TA Minister may give directions to CEO in relation to powers and duties under this Part 42 Division 2-Consideration of anti-dumping matters by the CEO 43 269TBA What this Division is about 43 269TB Application for action under Dumping Duty Act 43 269TC Consideration of application 46 269TD Preliminary affirmative determinations 50 269TDAAStatement of essential facts in relation to investigation of application under section 269TB 52 269TDA Termination of investigations 52 269TE CEO to have regard to same considerations as Minister 61 269TEA Report to Minister concerning publication of notices under this Part 62 269TEB CEO recommendations concerning undertakings offered after preliminary affirmative determination 63 Division 3-Consideration of anti-dumping matters by the Minister 66 269TF What this Division is about 66 269TG Dumping duties 66 269TH Third country dumping duties 70 269TJ Countervailing duties 73 269TJA Concurrent dumping and subsidy 77 269TK Third country countervailing duties 79 269TL Minister to give public notice not to impose duty 81 269TM Periods during which certain notices and undertakings to remain in force 81 269TN Retrospective notices 83 269TP Power to specify goods 86 269U Inquiries in relation to undertakings 86 Division 4-Dumping duty or countervailing duty assessment 89 269UA What this Division is about 89 269V Importers may apply for duty assessment in certain circumstances 89 269W Manner of making applications for duty assessment 90 269X Consideration of duty assessment applications 91 269Y Duty assessments 95 269YA Rejection etc. of application for duty assessment 96 Division 5-Review of anti-dumping measures 98 269Z What this Division is about 98 269ZA Applications and requests for review of anti-dumping measures 98 269ZB Content and lodgment of applications for review of anti- dumping measures 101 269ZC Consideration of applications and requests for review 102 269ZD Statement of essential facts in relation to review of anti- dumping measures 104 269ZDA Report on review of measures 105 269ZDB Powers of the Minister in relation to review of anti- dumping measures 106 Division 6-Certain exporters may seek accelerated review of dumping duty notices or countervailing duty notices 109 269ZDC What this Division is about 109 269ZE Circumstances in which accelerated review may be sought 109 269ZF Application for accelerated review 110 269ZG Consideration of application 111 269ZH Effect of accelerated review 112 Division 6A-Continuation of anti-dumping measures 113 269ZHA What this Division is about 113 269ZHB Applications for continuation of anti-dumping measures 113 269ZHC Content and lodgment of application for continuation of anti-dumping measures 114 269ZHD Consideration of applications for continuation of anti-dumping measures 115 269ZHE Statement of essential facts in relation to continuation of anti-dumping measures 116 269ZHF Report on application for continuation of anti- dumping measures 117 269ZHG Powers of the Minister in relation to continuation of anti-dumping measures 118 Division 7-Procedural and evidentiary matters 120 269ZHH What this Division is about 120 269ZHI Minister may extend time for statements of essential facts 120 269ZI Public notice 121 269ZJ CEO to maintain public record for certain purposes 124 Division 8-Trade Measures Review Officer 127 269ZK What this Division is about 127 269ZL Trade Measures Review Officer 127 269ZM Review Officer's powers 127 269ZN Protection of Review Officer 128 269ZO Terms and conditions of appointment 128 269ZOA Disclosure of interests 128 269ZP Outside employment 128 269ZQ Resignation 129 269ZR Termination of appointment 129 269ZS Acting Review Officer 129 269ZT Provision of resources to Review Officer 130 269ZU Review Officer may supply information 130 269ZV False or misleading information 131 Division 9-Review by Review Officer 132 Subdivision A-Preliminary 132 269ZW What this Division is about 132 269ZX Definitions 132 269ZXA Approved form 134 269ZY Lodgment of application 134 269ZZ Review Officer to have regard to same considerations as Minister 134 Subdivision B-Review of Ministerial decisions 135 269ZZA Reviewable decisions 135 269ZZB Overview of a review of a ministerial decision 136 269ZZC Who may seek a review? 137 269ZZD When must an application be made? 137 269ZZE How must an application be made? 137 269ZZF Applicant's obligations 137 269ZZG Rejection of application-failure to provide sufficient particulars 138 269ZZH Rejection of application-failure to provide summary of confidential information 138 269ZZI Public notification of review 138 269ZZJ Submissions by interested parties 139 269ZZK The review 139 269ZZL What happens after the Minister receives a recommendation? 141 269ZZM What happens after a reinvestigation? 142 Subdivision C-Review of CEO's decisions 143 269ZZN Reviewable decisions 143 269ZZO Who may seek a review 143 269ZZP When must an application be made? 144 269ZZQ How must an application be made? 144 269ZZR Rejection of application for review of termination decision 145 269ZZS The review of a negative prima facie decision 145 269ZZT The review of a termination decision 146 269ZZU The review of a negative preliminary decision 146 269ZZUAThe review of a rejection decision 147 269ZZV Effect of the Review Officer's decision 148 Subdivision D-Public record in relation to reviews 148 269ZZW Application 148 269ZZX Public record maintained by Review Officer 148 269ZZY Confidential and sensitive commercial information 149 Part XVI-Regulations, by-laws and business rules 150 270 Regulations 150 271 CEO may make by-laws 151 272 By-laws specifying goods 151 273 Determinations 152 273A By-laws and determinations for purposes of repealed items 152 273B Publication of by-laws and notification of determinations 152 273C Retrospective by-laws and determinations not to increase duty 153 273D By-laws and determinations for purposes of proposals 153 273EA Notification of proposals when House of Representatives is not sitting 154 273EB Business rules 154 273F Interpretation 155 Part XVII-Miscellaneous 156 273G Briefing of Leader of Opposition on certain matters 156 273GAA Notices 156 273GAB Authorisation to disclose information to Customs 157 273GA Review of decisions 158 273H Review of decisions under Customs Tariff Act 162 273HA Review of decisions under the Customs Tariff (Miscellaneous Amendments) Act 1996 162 273J Review of decisions under Customs Tariff (Coal Export Duty) Act 162 273JA Review of decisions relating to Customs Tariff (Stand-By Duty) Act 163 273K Statement to accompany notification of decisions 163 273L Entry and transmission of information by computer 164 274 Commissioned ships and aircraft to be reported 164 275 Commissioned ships and aircraft may be searched 164 275A Direction not to move a ship or aircraft from a boarding station 164 276 Collector's sales 166 277 Proceeds of sales 166 277A Jurisdiction of courts 166 Schedules 168 Schedule I-The Commonwealth of Australia 168 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 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) Divisions 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 This 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 Australian 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 Definitions (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 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). economy in transition has the meaning given by subsection (5C). 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 on 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 to 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) a selected exporter; and (b) 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 respect of 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 than 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 (c) 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: [pic] 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. (5C) A country has an economy in transition at a time if: (a) before the time, the Government of the country had a monopoly, or a substantial monopoly, of the trade of that country and determined, or substantially influenced, the domestic price of goods in that country; and (b) at the time, that Government does not: (i) have a monopoly, or a substantial monopoly, of the trade of that country; or (ii) determine, or substantially influence, the domestic price of goods in that country. (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 New Zealand originating goods 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 New Zealand originating goods under Division 1E of Part VIII of this Act. 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 program benefits a limited number of particular enterprises; or (b) the fact that the subsidy program predominantly benefits particular enterprises; or (c) the fact that 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. (5D) The normal value of goods (the exported goods) is the amount determined by the Minister, having regard to all relevant information, if the exported goods are exported to Australia and the Minister is satisfied that the country of export has an economy in transition and that at least one of the following paragraphs applies: (a) both of the following conditions exist: (i) the exporter of the exported goods sells like goods in the country of export; (ii) market conditions do not prevail in that country in respect of the domestic selling price of those like goods; (b) both of the following conditions exist: (i) the exporter of the exported goods does not sell like goods in the country of export but others do; (ii) market conditions do not prevail in that country in respect of the domestic selling price of those like goods; (c) the exporter of the exported goods does not answer questions in a questionnaire given to the exporter by the CEO under subsection 269TC(8) within the period described in that subsection or subsection 269TC(9) for answering questions; (d) the answers given within the period mentioned in subsection 269TC(8), or the further period mentioned in subsection 269TC(9), by the exporter of the exported goods to a questionnaire given to the exporter under subsection 269TC(8) do not provide a reasonable basis for determining that paragraphs (a) and (b) of this subsection do not apply. Note: Subsection 269TC(8) deals with the CEO giving an exporter of goods to Australia a questionnaire about evidence of whether or not paragraphs (a) and (b) of this subsection apply, with a specified period of at least 30 days for the exporter to answer the questions. Under subsection 269TC(9) the CEO may allow the exporter a further period for answering the questions. (5E) To be satisfied that the conditions in paragraph (5D)(a) or (b) exist, the Minister must have regard to the matters (if any) prescribed by the regulations. (5F) Without limiting the generality of subsection (5D), for the purpose of working out, under that subsection, the amount that is to be the normal value of goods exported to Australia, the Minister may determine that amount in a manner that would be open to the Minister under paragraph (4)(c), (d), (e) or (f) if subsection (4) were applicable. (5J) For the purposes of fulfilling Australia's international obligations under an international agreement, regulations may be made to disapply subsection (5D) to a country. (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 (other than subsection (5D)), 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. (7A) The application of subsection (5D) to goods that are exported to Australia from a particular country does not preclude the application of other provisions of this section (other than subsections (4) and (5)) to other goods that are exported to Australia from that country. (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 (b) 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. (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(1)(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(1)(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(1)(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(1)(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 of the 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. 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 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 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 exportations of goods to Australia from different countries of export, the Minister should consider the cumulative effect of those exportations only if the Minister is satisfied that: (a) each of those exportations is the subject of an investigation; and (b) either: (i) all the investigations of those exportations resulted from applications under section 269TB lodged with the Customs on the same day; or (ii) the investigations of those exportations resulted from applications under section 269TB lodged with the Customs on different days but the investigation periods for all the investigations of those exportations overlap significantly; and (c) the dumping margin worked out under section 269TACB for the exporter for each of the exportations is at least 2% of the export price or weighted average of export prices used to establish that dumping margin; and (d) for each application, the volume of goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period (as defined in subsection 269TDA(17)) from the country of export and dumped is not taken to be negligible for the purposes of subsection 269TDA(3) because of subsection 269TDA(4); and (e) it is appropriate to consider the cumulative effect of those exportations, having regard to: (i) the conditions of competition between those goods; and (ii) the conditions of competition between those goods and like goods that are domestically produced. (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 (j) 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 (k) 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 (m) 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 instructions 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 the 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 a 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 to 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 in the form; and (e) in the case of an application under subsection (1)-be supported by a sufficient part of the Australian 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 Australian 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) 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 application; 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 the 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. (8) If the CEO is satisfied that a country whose exporters are nominated in an application for a dumping duty notice or a countervailing duty notice has an economy in transition, the CEO must, as soon as practicable after deciding not to reject the application: (a) give each nominated exporter from such a country a questionnaire about evidence of whether or not paragraphs 269TAC(5D)(a) and (b) apply; and (b) inform each such exporter that the exporter has a specified period of not less than 30 days for answering questions in the questionnaire; and (c) inform each such exporter that the investigation of the application will proceed on the basis that subsection 269TAC(5D) applies to the normal value of the exporter's goods that are the subject of the application if: (i) the exporter does not give the answers to the CEO within the period; or (ii) the exporter gives the answers to the CEO within the period but they do not provide a reasonable basis for determining that paragraphs 269TAC(5D)(a) and (b) do not apply. Note: Paragraph 269TAC(5D)(a) or (b) applies if a government of the country of export significantly affects the selling price in that country of like goods to the goods that are the subject of the application. (9) Despite the fact that, under subsection (8), the CEO has informed an exporter given a questionnaire that the exporter has a particular period to answer the questions in the questionnaire, if the CEO is satisfied, by representation in writing by the exporter: (a) that a longer period is reasonably required for the exporter to answer the questions; and (b) that allowing a longer period will be practicable in the circumstances; the CEO may notify the exporter, in writing, that a specified further period will be allowed for the exporter to answer the questions. 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 that 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 making 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 that 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. 269TDA Termination of investigations 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 (ii) there has been dumping by the exporter of some or all of those goods, but the dumping 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 th