As we end of another week of significant developments in the world of the Australian anti dumping and subsidies regime, I thought it would be useful to summarise some of those developments.
Statement of Essential Facts (SEF) issued on the Power Transformer Investigation
After the issue of a preliminary affirmative determination (PAD), the imposition of securities and the grant of four extensions to issue the SEF (a new record) the Anti-Dumping Commission (ADC) released SEF 219 yesterday. Being involved in the Investigation, I can confirm that it is unbelievably complex involving exports from a number of countries and issues such as "when is an export an export" (day of contract or day of shipment), what are "like goods" and "just what is a distribution transformer?"
The ADC has made a number of preliminary findings as to whether exports caused material injury, the levels of dumped exports from various countries and dumping margins (in some case negative margins). At this stage (and subject to further submissions following the SEF) the proposed actions of the ADC are:
- recommend to the Parliamentary Secretary to publish a dumping duty notice in respect of power transformers exported from Indonesia, Taiwan, Thailand and Vietnam;
- terminate the Investigation relating to certain exporters from China, Indonesia and Korea that did not export power transformers to Australia at dumped prices: and
- terminate the Investigation as far as it related to China and Korea.
There is now a 20 day period to make submissions in relation to the SEF, following which the ADC will deliver a Final Report to the Parliamentary Secretary who will then make and publish decisions.
Given the size and complexity of the Investigation (and especially the proposals as to termination of parts of the Investigation) there will no doubt be extensive submissions in response to the SEF. Further, even after the decision of the Parliamentary Secretary is published, should it follow the proposals of the ADC in the SEF, I would anticipate applications for review.
Review of measures on Aluminium Road Wheels (ARW)
Many of you would be aware of the long Investigation into alleged dumping and subsidies in relation to ARW including the recent Federal Court decision requiring a re–calculation of margins applicable to 112 exporters from China.
Earlier this week, the ADC gave notice of the initiation of a separate review of the anti–dumping measures as to whether the variable factors relating to the taking of measures (elements of normal value and export price) have changed. The review period will be from 1 July 2013 to 30 June 2014. Interested parties have until 27 October 2014 to make submissions, including that measures are no longer warranted and that the review should include revocation.
Anti–circumvention Inquiry regarding extrusions exported from China
Those interested in this area would recall that one of the new provisions introduced in 2013 was to provide for an "anti–circumvention" inquiry, to cover situations where exporters and importers of dumped goods take steps to "circumvent" the measures. The legislation now prescribes the types of actions which can be subject to such an Inquiry, which could result in duties being imposed on the goods which would have been payable but for the circumvention action. The provisions are generally intended to attack specific measures taken to "avoid" the measures. This is separate to the actions which are occasionally taken to misrepresent the goods or their origin in a reckless or deliberate fashion to avoid the measures which could trigger prosecution and action to recover the duties which had not paid. There are current investigations of this latter kind in relation to alleged deliberate misrepresentation of the origin of ARW which should have attracted dumping and countervailing duties.
The first of these Inquiries relates to aluminium extrusions exported from China. As many would be aware the original dumping and subsidies Investigation was subject to many reviews including in the Federal Court and current reviews on measures are still ongoing. In addition there has been extensive controversy as to what actually constitutes an aluminium extrusion and what constitutes a "solar panel kit" as the former will be subject to extensive dumping and countervailing duties which has been a surprise for many importers in the solar panel industry who are now facing demands and recovery action for massive amounts which they do not have. The position for those parties has been made worse by the initiation of an Investigation in relation to the actual solar panels themselves following actions in the EU and the US.
The ADC has now released an "Issues Paper" regarding certain aspects of the Inquiry and how the ADC proposes to conduct the Inquiry. Submissions are due by 3 October 2014.
Pay attention and act to preserve interests
In each of these cases, it is in the interests of the exporters, the importers, the end–users and their service providers to take action to protect their interests. Those parties will be assumed to have read the relevant electronic public file and required to register their support or objection (as the case may be). So, please take a minute to review and take action where affected!