Explanatory Memorandum
Minister for Home Affairs, the Honourable Jason Clare MPC. Schedule 3-Sampling
Item 1 - Subsection 269T(1)
103. This item introduces a new definition of "cooperative exporter" into subsection 269T(1). A cooperative exporter is an exporter of goods that are the subject of an investigation, a review under Division 5 or a continuation inquiry in relation to a dumping duty notice where those goods were examined as part of that process and the exporter was not "an uncooperative exporter". An "uncooperative exporter" is defined in a definition inserted into subsection 269T(1) by item 4 of Schedule 3. The new definitions of "cooperative exporter" and "uncooperative exporter" apply regardless of whether sampling has been undertaken under the sampling provisions in the new section 269TACAA.
Item 2 - Subsection 269T(1) (definition of residual exporter)
104. This item repeals the current definition of "residual exporter" and substitutes a new definition. A residual exporter under the new definition is an exporter of goods that are the subject of an investigation, a review under Division 5 or a continuation inquiry in relation to a dumping duty notice, where:
- 104.1.
- the exporter's exports were not examined as part of the investigation, review or inquiry; and
- 104.2.
- the exporter was not an uncooperative exporter in relation to the investigation, review or inquiry.
105. This would typically mean when sampling has been undertaken and the exporter was willing to cooperate in the investigation but was not chosen to be examined.
Item 3 - Subsection 296T(1) (definition of selected exporter)
106. This item repeals the definition of "selected exporter", which is redundant due to other amendments made by this bill.
Item 4 - Subsection 269T(1)
107. This item introduces a definition of "uncooperative exporter". An uncooperative exporter is an exporter of:
- 107.1.
- goods, that are the subject of an investigation, a review under Division 5 or a continuation inquiry in relation to a dumping duty notice (the relevant process), or
- 107.2.
- like goods to those subject to the relevant process,
where the exporter has not cooperated within that process such that the CEO was satisfied that the exporter:
- 107.3.
- did not give the CEO information the CEO considered to be relevant to the process within a period the CEO considered to be reasonable; or
- 107.4.
- significantly impeded the relevant process.
Item 5 - After section 269TAC
Section 269TACAA Sampling
108. This item inserts a new sampling provision, section 269TACAA to consolidate and clarify the operation of the sampling provisions of the Customs Act. Currently, sampling provisions are located for dumping in subsections 269TACB(7) to 269TACB(9) and for subsidies in subsections 269TACC(8) to 269TACB(9). Those subsections will be repealed by other items, and new section 269TACAA will be the only sampling provision. New section 269TACAA provides for sampling in relation to both dumping and countervailing notices, in relation to original investigations, reviews under Division 5 and continuation inquiries.
109. Article 6.10 of the ADA provides for sampling in relation to dumping inquiries. There is no similar provision supporting sampling under the ASCM but it is accepted practice internationally for sampling exercises to be undertaken in relation to subsidies investigations.
110. This sampling provision also reflects Article 6.10 such that the findings of the relevant investigations, review under Division 5 or continuation inquiry can be made based on the information obtained from an examination of a select number of exporters where the number of exporters who provide information to the relevant process is so large as to make a determination for each individual exporter impracticable.
111. The Minister may limit his or her examination to a number of select exporters, under this sampling provision, to:
- 111.1.
- a reasonable number of exporters which are statistically valid sample, or
- 111.2.
- exporters who are responsible for the largest percentage of the volume of the exports from the country in question which can be reasonably be investigated.
112. The subsection 269TACAA(2) allows for an exporter not initially selected under subsection 269TACAA(1) to submit information and be included in the examination where it is decided doing so would not impede the investigation.
Section 269TACAB Dumping duty notice-export prices and normal values for different categories of exporters
113. This item inserts a new section 269TACAB which provides for the Minister in publishing a dumping duty notice to set export prices and normal values for different categories of exporters, namely uncooperative exporters and residual exporters.
Uncooperative exporters
114. The new subsection 269TACAB(1) directs the Minister to work out the export price and the normal value of the uncooperative exporter in an investigation, review under Division 5 and continuation inquiry under subsections 269TAB(3) and 269TAC(6) respectively.
Residual exporters
115. The new subsection 269TACAB(2) reflecting Article 9.4 of the ADA by requiring that, in ascertaining a normal value and export price for goods of a residual exporter in an investigation, review under Division 5 or continuation inquiry that:
- 115.1.
- the export price must not be less than the weighted average of export prices for like goods of cooperative exporters from the same country of export; and
- 115.2.
- the normal value must not exceed the weighted average of normal values for like goods of cooperative exporters from the same country of export.
116. The new subsection 269TACAB(3) requires for the purposes of the new subsection 269TACAB(2) that the weighted average of export prices and normal values of the cooperative exporters must not include any export price or normal value where the Minister has determined:
- 116.1.
- that there is no dumping; or
- 116.2.
- that the dumping margin, when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%.
117. Note that the new section 269TACAB only deals with dumping duty notices. The proposed new section 269TAACA introduced by the Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 deals with the determination of countervailable subsidy if there is a lack of cooperation in a relevant investigation, review or continuation inquiry.
Item 6 - Subsections 269TACB(7), (8) and (9)
118. This item deletes these subsections, and is a consequential amendment to the consolidation of the sampling provision by item 5 of Schedule 3.
Item 7 - Subsections 269TG(3B) and (3C)
119. This item deletes these subsections, and is a consequential amendment to the insertion of new subsection 269TACAB(3) by item 5 of Schedule 3 which replaces these repealed provisions.
Item 8 - Subsections 269TH(5) and (6)
120. This item deletes these subsections, and is a consequential amendment to the insertion new subsection 269TACAB(3) by item 5 of Schedule 3 which replaces these repealed provisions.
Item 9 - Paragraphs 269ZE(2)(b) and (3)(b)
121. This item sets out a consequential amendment to the repeal of the definition of selected exporter in item 3 of Schedule 3 and the creation of new sampling provision in item 5 of Schedule 3. The amendment means that in furtherance to the right to reject an application for an accelerated review or terminate an accelerated review under paragraphs 269ZE(2)(a) and (3)(a), the CEO may so reject or terminate if satisfied that the relevant exporter is related to an exporter whose exports have been examined in relation to the application for publication of the original notice.
Item 10 - Subsection 269ZE(4)
122. This item is a consequential amendment to the repeal of the definition of selected exporter in item 3 of Schedule 3 and the creation of new sampling provision in item 5 of Schedule 3.
Item 11 - Application provision
123. This item applies the amendments made in Schedule 3 such that the new sampling provisions apply in relation to investigations that are initiated, or to reviews under Division 5 or continuation inquiries that begin, on or after the commencement of this Schedule.