APPENDIX 3

APPENDIX 3

Recommendations of the 2009 Productivity Commission inquiry

In March 2009, the Australian Government asked the Productivity Commission to commence a public inquiry into the effectiveness and impact of Australia's anti-dumping and countervailing system. The final report was provided to the Government on 18 December 2009 and was publicly released on 27 May 2010.

Below are the recommendations made by the Productivity Commission in its report.

The new public interest test

Recommendation 5.1

The imposition and continuation of anti-dumping and countervailing measures should be subject to a ‘bounded’ public interest test, embodying a presumption that measures will be imposed if there has been dumping or subsidisation that has caused, or threatens to cause, material injury, unless one (or more) of the following circumstances apply:

The explanatory memoranda to the enabling legislation should elaborate on the intent and application of this list of circumstances, having regard to the commentary in the body of this report.

Where, based on the advice from the Australian Customs and Border Protection Service (ACBPS), the Minister is satisfied that one (or more) of these circumstances apply, measures would not be imposed. And where none of these circumstances apply and the Minister has determined that measures should be imposed, then the magnitude of those measures should be set having regard to the existing lesser duty rule arrangements.

Assessments against the public interest test by the ACBPS should generally be completed within 30 days, and draw if necessary on advice from external parties such as the Australian Competition and Consumer Commission. Provisional measures should be imposed in all cases where a finding by the ACBPS that there has been injurious dumping or subsidisation provides the basis for moving to apply the test.

In giving effect to these requirements, the ACBPS should also:

Supporting framework changes

Recommendation 6.1

The Australian Government should convene a working group to examine the close processed agricultural goods provisions and report to the Minister on:

The working group should consult with interested parties and publish a draft report for comment.

Recommendation 6.2

Australia should not adopt the practice of zeroing when calculating normal values.

Recommendation 6.3

In conjunction with the introduction of the new public interest test (see recommendation 5.1), the arrangements governing the imposition of provisional measures should be modified as follows:

Recommendation 6.4

There should be no change to the current five-year default term for anti-dumping and countervailing measures.

However, extensions of anti-dumping and countervailing measures, following a continuation review, should be limited to one three-year term. And an application for new measures following the expiry of a three-year extension should be subject to the same requirements as the original application (including assessment against the public interest test as detailed in recommendation 5.1).

Continuation reviews should, in all cases, comprehensively examine and recalculate the relevant variable factors.

Recommendation 6.5

The current ‘review of measures’ and ‘administrative review’ provisions should be abolished and replaced by a single new mechanism to adjust the magnitude of all anti-dumping and countervailing measures on an annual basis. The resulting adjustments, which should be determined and notified by the CEO of the Australian Customs and Border Protection Service (ACBPS), should not be appellable.

Recommendation 6.6

The basis for collecting dumping and countervailing duties should be modified. Specifically, for goods subject to a dumping duty, or to a countervailing duty involving the lesser duty rule, the duty collected at the time of importation should be based on the actual export price relative to the export price at which no duty would be payable on the basis of the prevailing, annually adjusted, variable factors. Concurrent with this change, provision for importers to seek refunds of overpaid duties should be abolished.

Recommendation 6.7

The Australian Customs and Border Protection Service (ACBPS) should, as part of the annual adjustment of measures (see recommendation 6.5), seek feedback from the various parties on the impacts of those measures over the preceding 12 months—including on market prices—and investigate further if appropriate.

Where such feedback indicates that local production of a good subject to measures has ceased, and is unlikely to recommence in the period for which the measures would otherwise remain in place, the CEO of the ACBPS should advise the Minister to revoke the measures. This process should replace the current revocation arrangements.

Recommendation 6.8

Australia’s list of actionable subsidies should be aligned and kept aligned with the lists in the latest relevant WTO agreements.

Administration of the system

Recommendation 7.1

The Australian Customs and Border Protection Service, the Minister and the Trade Measures Review Officer should retain their broad administrative and decision-making roles within the anti-dumping system, with their specific responsibilities modified, as appropriate, to reflect the Commission’s other recommendations.

These roles and responsibilities should be reconsidered at the time of the next review (see recommendation 7.11) in the light of experience with the new system.

Recommendation 7.2

The following changes should be made to the current appeals arrangements for anti-dumping decisions.

Any such reinvestigations and ensuing decisions by the Minister should not be appellable.

Recommendation 7.3

Provision should be made for the Australian Customs and Border Protection Service (ACBPS) to seek extensions of the investigation period at any time during an investigation. In addition to notification of extensions through the issue of an Australian Customs Dumping Notice, all correspondence relating to such requests should be made available on the public file.

This new arrangement, together with the adequacy of the general time limits for the various steps in the investigation process, should be assessed at the next review (see recommendation 7.11), having regard to experience in the intervening period under the new system.

Through its ‘Anti-Dumping and Countervailing Actions—Status Reports’, the ACBPS should provide an annual, consolidated, summary of the timeliness of each of its investigations in the preceding 12 month period.

Recommendation 7.4

Decisions by the Minister in response to advice from the Australian Customs and Border Protection Service, or from the Trade Measures Review Officer, should be subject to a 30-day time limit.

Recommendation 7.5

The Australian Government should ensure that the Australian Customs and Border Protection Service (ACBPS) and the Trade Measures Review Officer (TMRO) are adequately and appropriately resourced to enable them to effectively undertake their functions under the new system. The level of resourcing should take into account the opportunities for the ACBPS and the TMRO to engage outside expertise to enhance the quality and/or cost-effectiveness of aspects of their assessment tasks.

Recommendation 7.6

In providing advice to the Minister on whether anti-dumping measures should be imposed or continued, the Australian Customs and Border Protection Service should indicate in its investigation reports whether there have been any comparable recent cases in other countries; what the outcomes of those cases were; and what is the relevance, if any, of those outcomes to the investigation at hand.

Recommendation 7.7

Through its ‘Anti-Dumping and Countervailing Actions—Status Reports’, the Australian Customs and Border Protection Service should report annually on the number of applications for anti-dumping measures that do not proceed to initiation, and the products and countries that were the subject of those applications.

Recommendation 7.8

Through its various reports and/or Australian Customs Dumping Notices, the Australian Customs and Border Protection Service (ACBPS) should be required to publish the maximum amount of information on the magnitude of individual anti-dumping and countervailing measures and the underlying variable factors that is consistent with maintaining appropriate protection for commercially sensitive information submitted by individual parties.

Customs should also report annually on the number of cases where the lesser duty rule has been applied.

Other matters

Recommendation 7.9

The Australian Government should consult with the Australian Bureau of Statistics on the best way to ensure that import data are not suppressed on confidentiality grounds when the same or similar data can be publicly accessed through other sources.

Implementation of the new requirements

Recommendation 7.10

All of the proposed reforms should take effect as soon as practically possible, except for the new public interest test (see recommendation 5.1) and the changes to the continuation provisions (see recommendation 6.4). These should take effect two years later.

Recommendation 7.11

There should be a broad and independent public review of the new anti-dumping system five years after the reform package is fully operative. Amongst other things, that review should examine:

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