Review of decision to take anti-dumping action against exports of iron and steel grinding mill liners from Canada

INTRODUCTION

  1. As a member of the World Trade Organisation (WTO), Australia is bound by the World Trade Organisation Uruguay Round Anti-Dumping Agreement and Agreement on Subsidies and Countervailing Measures (the WTO Agreement). Article 2.1 of the WTO Agreement provides that a product is considered dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country. (The export price is the price paid before any costs in respect of the goods after exportation are included. Normal value is usually defined as the price at which a good would be sold in its home market.)
  2. Before any action may be taken against dumped goods the Australian industry concerned must demonstrate not only that dumping is occurring, but that the Australian industry has suffered material injury as a result. This is done through an application to the Australian Customs Service (Customs) for an investigation into the facts of the case. If Customs determines that dumping has occurred, it must then establish whether the Australian industry's performance has deteriorated, whether any injury suffered would be considered material and whether the dumping has caused the material injury to the industry. Any injury that has resulted from other, clearly identifiable sources must not be attributed to the dumping. Regardless of whether it is found that dumping has caused material injury, it must also be determined whether future dumping threatens to cause material injury to the Australian industry. This includes an assessment of whether any changes in circumstances would make that threat of material injury both foreseeable and imminent unless anti-dumping measures were imposed.
  3. Under the provisions of the Customs Act 1901 (the Act), Customs has 155 days (or such longer period as allowed by the Minister) from the date of initiation of an investigation within which to make a recommendation to the Minister for Justice and Customs (the Minister) concerning the imposition of interim anti-dumping duty. On the basis of Customs' recommendations the Minister will then make a decision whether to impose definitive anti-dumping measures.
     

    THE ROLE OF THE TRADE MEASURES REVIEW OFFICER

  4. The Trade Measures Review Officer (the Review Officer) is appointed by the Minister to review certain decisions in relation to dumping matters. The Review Officer is an independent administrative appeal mechanism with no investigative function. The Review Officer may review a prescribed range of decisions made by the Minister or by the Chief Executive Officer (CEO) of Customs. Reviews are conducted only on application from relevant interested parties as defined in the Act under section 269ZX.
  5. Subdivision B of Division 9 of the Act provides for reviews by the Review Officer of certain decisions by the Minister, including decisions to take, or not to take, anti-dumping action under subsections 269TG(1) and 269TG(2) of the Act. Subdivision B also describes the procedures to be followed in the conduct of a review.
  6. An applicant must establish to the satisfaction of the Review Officer that there are reasonable grounds to warrant the reinvestigation of the finding or findings specified in the application. Section 269ZZG of the Act provides that the Review Officer must reject an application if satisfied that the applicant has failed to provide sufficient particulars in relation to the application, including particulars concerning the finding or findings to which the application relates, within the 30 day statutory period. Unless an application is so unreasonable that it may be rejected in the first instance, the Review Officer will accept it at face value and undertake an investigation. If an application is made by a party to the original decision, it will be assumed that the applicant has the right to request a review.
  7. Before conducting a review, the Review Officer must publish in a national newspaper a public notice indicating that the Review Officer proposes to conduct that review. Interested parties in relation to a reviewable decision by the Minister may make submissions to the Review Officer within 30 days after the publication of that notice.
  8. The Review Officer must make a report to the Minister on the finding(s) specified in the application by recommending either that the Minister affirm the reviewable decision or that the Minister direct the CEO to reinvestigate the finding(s) which formed the basis of the reviewable decision.
  9. In conducting a review, the Review Officer must only have regard to the information to which Customs had regard when making the findings set out in its report to the Minister.
  10. The Review Officer's report must be made at least 30 days after the public notification of the review but not more than 60 days after that notification - or such longer period as allowed by the Minister in writing because of special circumstances.
  11. If the Minister accepts a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings, s269ZZL prescribes that the Minister must, in writing, require the CEO to make further investigation of the finding(s) and report the result of that further investigation to the Minister within a specified period. In addition, the Minister must, by public notice, indicate acceptance of the Review Officer's recommendation, including particulars of the requirements made of the CEO.
  12. After receiving a report by the CEO in respect of a reinvestigation, the Minister must either affirm the reviewable decision or revoke that decision and substitute a new decision. The Minister must give public notice of that decision.
     

    BACKGROUND TO THE REVIEW

  13. On 2 December 2002, following an application by Bradken Resources Pty Ltd (Bradken), Customs initiated an investigation into the alleged dumping of iron and steel grinding mill liners (mill liners) exported to Australia from Canada. The application was supported by the other member of the Australian industry, Roche Castings Pty Ltd (Roche).
  14. The goods under inquiry are cast articles of iron and steel used to line grinding mills. Grinding mills are large rotating structures used in the hard ore mining industry to grind ore and are also used in the cement industry to grind clinker. The goods do not include items used in fitting mill liners to grinding mills such as fillers, rings, bolts and washers.
  15. On 17 June 2003, Customs presented the Minister with its final report in respect of Customs' investigations and findings in relation to this matter.
  16. In its report to the Minister, Customs found that:
    • exports of mill liners from Canada were dumped by a margin of between 80 per cent and 90 per cent;

    • the Australian industry producing like goods had suffered injury in the form of lost sales, loss of market share, price undercutting, price depression, price suppression and a loss of profits and profitability;

    • there was a causal link between the dumped imports and injury to the Australian industry and the injury caused by dumping was material; and

    • future exports from Canada were likely to be dumped and material injury to the Australian industry was likely to continue.

  17. Accordingly, Customs recommended in its report to the Minister that anti-dumping measures be imposed against mill liners exported to Australia from Canada.
  18. The Minister accepted Customs' recommendations on 11 September 2003.
  19. In October 2003, two applications were received by the Review Officer for review of the Minister's decision to impose anti-dumping measures in respect of mill liners exported to Australia from Canada. The applications were lodged by Alcoa World Alumina Australia (Alcoa) and Norcast Castings Company Limited (Norcast).
  20. The Review Officer accepted both applications and, on 31 October 2003, a public notice of the Review Officer's intention to conduct a review in this matter was published. Interested parties were invited to lodge a submission with the Review Officer and submissions were received from Alcoa, Norcast, Rio Tinto Limited (Rio Tinto) and the Australian Grinding Mill Liner Industry.
  21. In this particular review, two extensions of 30 days each were granted to the Review Officer by the Minister in light of the complex and voluminous nature of the evidence and submissions to be reviewed and because of other unforeseen special circumstances.
     

    THE REVIEW

  22. As mentioned previously, two applications were received by the Review Officer for review of the Minister's decision to impose anti-dumping measures in respect of mill liners exported to Australia from Canada. The applications were lodged by Alcoa and Norcast.

    Alcoa's Application for Review
  23. The first application was received from Alcoa on 16 October 2003. A copy of the non-confidential version of Alcoa's application is at Attachment A to this report.
  24. Alcoa is an end user of mill liners and had intended to (and had arranged to) buy mill liners from Norcast when the Minister's decision was made.
  25. Alcoa submitted that the grounds for review were:
    • consideration of Alcoa's submissions;  
    • assessment of market size;

    • assessment of injury to the Australian industry;

    • assessment of "loss of sales" to Norcast;

    • irrelevant considerations introduced by Customs;

    • assessment of Growth Asia prices;

    • assumptions about the price depressing effects of Norcast prices;

    • conclusions on price suppression; and

    • unsupported other causes of injury.

  26. Further details on Alcoa's claims in its application for review are at Attachment A.
     

    The Review Officer's Assessment

  27. The Review Officer's assessment of the above claims by Alcoa follows.
     

    Consideration of Alcoa's submissions:

  28. Alcoa argued that Customs' conclusion that there would be material injury to the Australian industry through Norcast winning tenders to supply mill liners was flawed because Customs did not give appropriate weight to the evidence of interested parties, including Alcoa, as to the competitiveness of non-dumped goods.
  29. Alcoa submitted that its submission was given little, if any, weight by Customs when assessing material injury.
  30. The Review Officer is of the opinion that the views expressed by Alcoa in this regard are unsubstantiated allegation and assertion. There is no evidence to suggest that Customs did not give due regard to all of the available information.
     

    Customs erred in its assessment of market size:

  31. Alcoa contended that Customs' assessment of the size of the market for the goods (under inquiry) was confused, selective and unjustified. It was stated that Customs did not base its assessment of market size on objective data but relied exclusively on information supplied by the Australian industry.
  32. In its report, Customs estimated the size of the Australian market based on data provided by the local industry. Customs was not able to confirm these figures since the importer of mill liners from Indonesia declined to provide relevant data and Customs' commercial database was not sufficiently detailed to allow identification of imports from Indonesia. Nonetheless, Customs analysed relevant import data to the extent possible and obtained sales information from interested parties. As a result, Customs was satisfied that the market estimation provided by the Australian industry was sufficiently accurate.
  33. The Review Officer, on the basis of the available information, is also so satisfied and will recommend that the Minister affirm Customs' findings in relation to the size of the Australian market.
     

    Assessment of injury to the Australian industry:

  34. Alcoa stated that Customs' assessment of the potential for injury to the Australian industry was subjective and unduly limited. The company contended that the market in which the goods are procured is the global market, not specifically the "Australian" market. Consistent with this, Alcoa undertook a global tender for the goods. On this global market, there were several sources of the goods, at "non-dumped" prices, that Alcoa would prefer to the offers made by members of the Australian industry: for example, mill liners from Indonesia and South Africa. To only protect the Australian industry from competition from Norcast would not, it was argued, remove the injury that might be caused by goods from other sources at globally competitive prices.
  35. The Review Officer disagrees with this line of reasoning largely because it demonstrates a fundamental lack of understanding of Australia's anti-dumping system and the WTO Agreement upon which that system is based. Simply put, signatories to the WTO Agreement (and there are almost 150 countries world wide which are signatories) are able to take anti-dumping action against dumped exports where it can be demonstrated that those dumped exports are causing, and threaten to continue to cause, material injury to a domestic industry producing like goods.
  36. Global competition is one thing; injurious dumping is another. It is acknowledged that it is quite likely that the world price, or the globally competitive price, of many goods and commodities may be dumped (or for that matter, subsidised) prices from particular sources. This is no doubt a common occurrence and consumers everywhere may reap the benefits of lower prices due to free trade and global competition.
  37. However, when goods are introduced into the commerce of another country at dumped prices and are causing and/or threatening to cause material injury to that country's domestic industry, signatories to the WTO Agreement are able to take remedial action in the form of anti-dumping measures.
  38. In this particular case, after due investigation by Customs, anti-dumping measures have been imposed on exports of mill liners from Canada. Alcoa argues that there are several sources of the goods, at non-dumped prices, that Alcoa would prefer to the offers made by the Australian industry, for example, mill liners from Indonesia and South Africa.
  39. This may well be the case. Whether or not mill liners from Indonesia and South Africa would be at non-dumped prices is an allegation by Alcoa that cannot be tested here on the basis of the information available. This is not the fault of Customs nor is it any failure of Customs' procedural process: Customs' inquiry focussed on the goods under inquiry i.e. mill liners from Canada. Further inquiry would be needed to determine whether or not exports of mill liners from Indonesia or South Africa were dumped.
  40. If goods from other sources are undumped, Alcoa is quite right in asserting that anti-dumping measures against Canada will not remove any injury that may be caused by imports from those other sources at globally competitive prices. Indeed, that result would be entirely consistent with Australia's anti-dumping policy whereby anti-dumping action is not to be used to protect Australian industry from competition but to remove the effects of proven injurious dumping.
  41. Notwithstanding all of this, this review is to do with Customs' inquiry into exports of mill liners from Canada. The goods were found to have been dumped and to be causing, and threatening to cause, material injury to the Australian industry. Customs therefore recommended remedial action in the form of anti-dumping measures.
  42. The Review Officer agrees with Customs' analysis in this regard and will recommend that the Minister affirm Customs' findings in relation to assessment of injury to the Australian industry.
     

    Assessment of "loss of sales" to Norcast:

  43. Alcoa submitted that Customs' assessment of the loss of sales attributed to Norcast was confused and flawed. The company argued that Customs should have confined its injury investigation to verifiable evidence that the Australian industry would have won the tender in the absence of dumped goods.
  44. The Review Officer considers that this is not a reasonable proposition. It is not possible to demonstrate, or provide verifiable evidence, that the Australian industry would have, or would not have, won a particular tender in the absence of dumped goods. To attempt to do so necessarily requires hypothesis, conjecture and speculation.
  45. The fact remains that the Australian industry lost tenders, and thereby significant sales volumes, to the tenderer supplying dumped goods from Canada.
  46. The Review Officer concurs with Customs in its assessment of loss of sales in this regard and will recommend that the Minister affirm Customs' findings in respect of its assessment of loss of sales to Norcast.
     

    Irrelevant considerations introduced by Customs:

  47. Alcoa submitted that Customs' findings were influenced by irrelevant considerations, namely that Customs considered the question (raised by Norcast and some Australian mill liners consumers) of whether or not mill liners from Indonesia were dumped, and that this irrelevant concern was taken into account and given some weight in Customs' final decision.
  48. The matter referred to by Alcoa was indeed considered by Customs, and rightly so as it was referred to in evidence by the Canadian supplier amongst others. Its relevance may be judged accordingly.
  49. The Review Officer considers that there is no evidence to indicate that Customs gave this matter undue weight in its final determination in this case.
     

    Assessment of Growth Asia prices:

  50. Alcoa asserted that Customs' assessment of Growth Asia's prices was flawed and wrong at law. Growth Asia is an Indonesian manufacturer of mill liners. Alcoa stated that Customs, in its report, implied that the lack of a determination on the question of whether imports from Growth Asia were at dumped prices meant that the question was indeterminate. The company stated that, in the absence of a positive determination, the prices offered by any importer were not dumped prices.
  51. Alcoa further claimed that Customs had assumed that the Indonesian goods were dumped. The company stated that undumped prices from Indonesia were merely one of a number of undumped price offers that were considerably less than the prices offered by the Australian industry; were not materially different from the prices offered by Norcast which were found to be dumped; and were a good indication of global market prices for the goods.
  52. The Review Officer, having examined all the relevant information, considers that Customs has not erred in its assessment of Growth Asia's prices. Customs has clearly not made any assumptions either way as to whether or not the goods from Indonesia were dumped (correctly so - this would require independent investigation) and Customs' analysis of developments in the Australian market for the goods has not been tainted by any preconceptions in relation to the prices of mill liners from Indonesia.
  53. The Review Officer concludes that Customs' assessment of Growth Asia's prices was neither flawed nor wrong at law.
     

    Assumptions about the price depressing effects of Norcast prices:

  54. Alcoa stated that Customs' assumptions about the price depressing effects of Norcast prices were flawed. It said that there were a number of international suppliers other than Norcast that offered similar prices to Norcast and whose prices were not dumped. Customs had assumed that it was Norcast's pricing alone that influenced the negotiation of lower prices and caused price depression in the Australian market.
  55. Price depression (i.e. a lowering of prices) is an observable fact and the presence of price depression in the Australian market during the inquiry period does not appear to be in dispute. Alcoa's concerns relate to what it describes as Customs' "assumptions" about the effect of Norcast's dumped prices on prices in the Australian market in general.
  56. The Review Officer has examined the information available to Customs and agrees with Customs that the evidence indicates that it is likely that the presence of dumped prices in the Australian market has influenced the negotiation of lower prices. Indeed, the fact that Norcast had been successful in tendering for certain contracts indicates that, in those instances, the market price was actually a dumped price.
  57. The Review Officer therefore recommends that the Minister affirm Customs' findings in relation to price depression.
     

    Conclusions on price suppression:

  58. Alcoa stated that Customs' conclusion on price suppression was flawed and contradictory. It stated that Customs concluded that price suppression was not caused by dumping by Norcast and that this was inconsistent with (and therefore rendered incorrect) Customs' findings on price depression.
  59. Price suppression occurs when the margin between an industry's costs and prices is reduced. In other words, in any evaluation of price suppression, there are two variables - costs and prices. In determining price depression, the only variable is price. Customs found that the Australian industry had suffered some price suppression but attributed it to lower average prices (price depression) and cost cutting in a competitive market rather than to dumping. This is clearly not inconsistent with Customs' findings in respect of price depression as discussed above.
  60. On the basis of the available information, the Review Officer recommends that the Minister affirm Customs' findings in relation to price suppression.
     

    Unsupported other causes of injury:

  61. Alcoa stated that Customs' assessment of other causes of injury to the Australian industry was flawed in that Customs asserted that the Australian industry's loss of profits and profitability was "primarily" due to loss of sales volumes and that a "significant" proportion of sales lost had been "attributable to dumped goods from Canada". Alcoa repeated its previous assertions that sales won by Norcast at dumped prices were not sales lost to the Australian industry since, it was argued, those sales would not have gone to the Australian industry in the absence of dumped goods from Canada but would have been supplied by other foreign competitors.
  62. The Review Officer has dealt with the issue of hypothesis and conjecture in paragraphs 43 to 46 of this report. Substantiation beyond speculation is a minimum requirement.
  63. The Review Officer recommends that the Minister affirm Customs' findings in relation to causes of injury.
     

    Norcast's Application for Review

  64. The second application was received from Norcast on 16 October 2003. A copy of the non-confidential version of Norcast's application is at Attachment B to this report.
  65. Norcast is an exporter of mill liners from Canada and anti-dumping measures have applied to Norcast's exports to Australia since the Minister accepted Customs' recommendations in this regard on 11 September 2003.
  66. Norcast stated, in essence, that the findings sought to be reviewed were Customs' findings in relation to:
    • section 269TG(1) notice;

    • assessment of dumping margin;

    • price undercutting;

    • lost sales;

    • price depression;

    • loss of profits and profitability;

    • conclusion on material injury;

    • undumped Indonesian mill liners;

    • causation test;

    • conclusion on causation; and

    • unsuppressed selling price.

  67. Further details on Norcast's claims in its application for review are at Attachment B.
     

    The Review Officer's Assessment

  68. The Review Officer's assessment of the above claims by Norcast follows.

    Section 269TG(1) notice:
  69. Norcast argued that, in breach of the statutory prohibition contained in section 269TN of the Act, the Minister had sought, by publishing a notice under section 269TG(1) of the Act, to impose interim dumping duties retrospectively for a period in excess of six months. The applicant submitted that, as a result, Customs' recommendation that interim dumping duties be retrospectively imposed to the date of the preliminary affirmative determination be reinvestigated.
  70. Having considered the arguments advanced by Norcast in this regard, the Review Officer considers that Customs acted lawfully in recommending to the Minister that, on the basis of its inquiry and analysis, a notice be published under section 269TG(1) of the Act in respect of mill liners from Canada.
  71. Accordingly, the Review Officer recommends that the Minister affirm Customs' findings and recommendation in relation to the publication of a notice under section 269TG(1) of the Act.
     

    Assessment of dumping margin:

  72. Norcast claimed that Customs erred in its assessment of dumping margins since Customs declined to make adjustments to domestic selling prices of Norcast's mill liners (to ensure fair comparison with export prices) in respect of specification differences, selling expense differences, exclusion of certain sales and the interest rate for inventory holdings and payment terms. Further details of Norcast's claims in this regard are at Attachment B.
  73. In its report to the Minister, Customs stated that it was not satisfied that adjustments to normal values were required for these alleged differences in the terms and conditions of sales between the export and domestic markets.
  74. In respect of specification differences, Customs found that, on the basis of the information provided by Norcast, the average size of mill liner pieces sold in Canada during the investigation period was not significantly different to the average size of mill liner pieces exported to Australia and that therefore no specification adjustment was warranted.
  75. Customs also reported that, in relation to selling expenses, Norcast did not provide sufficient evidence to support the claimed adjustment and that there was no evidence of any level of trade difference between domestic and export sales.
  76. Further, some time after Customs' verification visit to Norcast in Canada, Norcast submitted that certain sales should be excluded from the assessment of normal values since they represented exceptional pricing. Customs considered that there was not sufficient verified information to conclude that any domestic sales should be excluded from the calculation of normal values.
  77. Finally, Customs, in calculating adjustments for inventory holdings and payment terms, used the interest rate it verified as the rate that Norcast paid on borrowings through arrangements within its corporate group. This interest rate was verified from Norcast's management accounts and supporting documentation.
  78. The Review Officer, having examined the relevant information, agrees with Customs' conclusions in these matters and will recommend that the Minister affirm Customs' findings in relation to the assessment of dumping margins.
     

    Price undercutting:

  79. Norcast submitted that Customs' finding that price undercutting constitutes injury suffered by the Australian industry was illogical and wrong. It was argued that price undercutting does not constitute injury per se, although it may give rise to injury. Norcast stated that Customs' finding that price undercutting by Norcast constituted injury to the Australian industry required investigation because of itself it cannot constitute injury.
  80. Customs found that, in all cases of tenders lost by the Australian industry to Norcast, mill liners offered by Norcast significantly undercut prices offered by the Australian industry. This finding does not appear to be in dispute.
  81. The Review Officer therefore recommends that the Minister affirm Customs' findings in relation to price undercutting.
     

    Lost sales:

  82. Norcast submitted, in essence, that, in respect of Customs' finding that the Australian industry had lost sales to dumped exports from Norcast, the Australian industry would not have won these contracts for supply of mill liners if Norcast had not tendered for them. As Alcoa has argued in its application for review, Norcast claimed that, in the absence of dumped exports from Canada, the contracts lost to the Australian industry would have instead been awarded to other overseas suppliers of undumped goods.
  83. This argument has been previously addressed by the Review Officer in this report (see paragraphs 43 to 46 above). In short, Norcast's claims are based on speculation and not observable fact.
  84. Accordingly, the Review Officer recommends that the Minister affirm Customs' findings in respect of lost sales.
     

    Price depression:

  85. Norcast stated that the decline in mill liner prices during the period under investigation cannot be attributed to price undercutting by Norcast and that Customs had erred in its "assumption" that the presence of dumped goods in the Australian market had influenced the negotiation of lower prices. This argument is similar to that advanced by Alcoa and addressed earlier (see paragraphs 54 to 57 of this report).
  86. As previously stated, price depression is an observable fact and the presence of price depression in the Australian market during the inquiry period does not appear to be in dispute.
  87. The Review Officer has examined the information available to Customs and agrees with Customs that the evidence indicates that it is likely that the presence of dumped prices in the Australian market has influenced the negotiation of lower prices. Indeed, the fact that Norcast had been successful in tendering for certain contracts indicates that, in those instances, the market price was actually a dumped price.
  88. The Review Officer therefore recommends that the Minister affirm Customs' findings in relation to price depression.
     

    Loss of profits and profitability:

  89. In its application for review, Norcast asserted, in essence, that Customs had erred in its analysis of profits and profitability and that the decline in profits and profitability experienced by the Australian industry was not due to Canadian mill liners but was due to the normal ebb and flow of business.
  90. Having examined all the available evidence, the Review Officer agrees with Customs that the Australian industry suffered lost profits and profitability, primarily as a result of lost sales volumes, and that a significant proportion of the lost sales was attributable to dumped goods from Canada.
  91. Accordingly, the Review Officer recommends that the Minister affirm Customs' findings in respect of profits and profitability.
     

    Conclusion on material injury:

  92. Norcast claimed that the Australian industry had not suffered material injury during the period under investigation. Based on its own assessment of price undercutting, price depression, price suppression, lost sales and loss of profits and profitability, Norcast stated that a re-investigation of Customs' findings that the Australian industry had suffered material injury during the period under investigation was warranted.
  93. As explained in the foregoing, the Review Officer does not consider that Customs has erred in its analysis of the elements of material injury suffered by the Australian industry during the period investigated. The Review Officer agrees with Customs that the Australian industry had suffered material injury over that period.
  94. Accordingly, the Review Officer recommends that the Minister affirm Customs' findings in relation to material injury.
     

    Undumped Indonesian mill liners:

  95. Norcast argued that Customs appeared to have ignored the fact that the Indonesian supplier, Growth Asia, had, for some time, had a significant impact in the Australian mill liner market and had won substantial contracts with exports at undumped prices. Norcast claimed that Customs' failure to accurately assess the Australian market warranted a thorough re-investigation of Customs' findings in this regard.
  96. The Review Officer rejects this line of argument on several grounds:
    • Customs did not make, nor was Customs required to make, any specific findings in relation to exports by Growth Asia;

    • it is clear from Customs' report that Customs gave due consideration to the presence and significance of exports from Growth Asia in the Australian market;

    • the Review Officer does not consider that Customs failed to accurately assess the market; and

    • there is no evidence either way as to whether or not the goods from Indonesia were dumped - this would require independent investigation.

  97. The Review Officer concludes that Customs' assessment of Growth Asia's presence in the Australian market was accurate and appropriate.
     

    Causation test:

  98. Norcast claimed that Customs erred in its analysis of whether dumping had caused material injury since Customs did not, it was argued, address the question of what would have occurred if Norcast had not tendered.
  99. This is the same argument that was raised earlier in relation to lost sales.
  100. As stated previously, it is not possible to demonstrate, or provide verifiable evidence, that the Australian industry would have, or would not have, won a particular tender in the absence of dumped goods. To attempt to do so necessarily requires hypothesis, conjecture and speculation.
  101. The fact remains that the Australian industry lost tenders, and thereby significant sales volumes, to the tenderer supplying dumped goods from Canada.
  102. The Review Officer recommends that the Minister affirm Customs' findings in respect of its analysis of whether dumping had caused material injury.
     

    Conclusion on causation:

  103. Norcast claimed that Customs' findings on whether allegedly dumped Canadian mill liners had caused or threatened to cause material injury to the Australian industry required re-investigation because Customs failed to adequately or properly assess the Australian mill liners market and did not properly assess whether allegedly dumped mill liners had caused or threatened material injury to the Australian industry.
  104. As explained in the foregoing, the Review Officer does not consider that Customs has failed to adequately assess the Australian market during the period investigated and the Review Officer agrees with Customs that dumped mill liners from Canada caused and threatened to cause material injury to the Australian industry over that period.
  105. Accordingly, the Review Officer recommends that the Minister affirm Customs' findings in relation to whether dumping had caused or threatened to cause material injury to the Australian industry.
     

    Unsuppressed selling price:

  106. Norcast claimed that Customs' determination of an unsuppressed selling price should be re-investigated and should be based on the lowest undumped price of each category of mill liner in the Australian market. Norcast argued that dumping had not affected prices in the Australian market and that a weighted average unsuppressed selling price failed to take account of conditions prevalent in the Australian market.
  107. Customs based its calculation of an unsuppressed selling price on the Australian industry's weighted average selling prices in the period prior to the market being affected by dumping (2001-02).
  108. The Review Officer agrees with Customs' approach in this regard. Firstly, the Review Officer rejects Norcast's claim that dumping had not affected prices during the investigation period and, secondly, the Review Officer concurs that an unsuppressed selling price should be based on selling prices that could be achieved in a market unaffected by dumping.
  109. Accordingly the Review Officer recommends that the Minister affirm Customs' findings in respect of the unsuppressed selling price.
     

    RECOMMENDATIONS AND CONCLUSIONS

  110. In conducting this review, the Review Officer has taken account of all the evidence available to Customs during the course of its inquiry as well as the arguments contained in applications and submissions presented to the Review Officer.
  111. The reviewable decisions of the Minister in this particular case are:
    • a decision by the Minister to publish a notice under subsection 269TG(1) of the Act which provides that the Minister take action against dumped goods that have already been exported to Australia; and 
    • a decision by the Minister to publish a notice under subsection 269TG(2) of the Act which provides that the Minister take action against like goods that may be exported to Australia in the future at dumped prices.

  112. The Review Officer's analysis of the matters raised in the two applications for review indicates that the findings by Customs that formed the basis of the reviewable decisions should be affirmed.
  113. Accordingly, the Review Officer recommends that the Minister affirm the reviewable decisions.

 

Richard Oliver
Trade Measures Review Officer

1 March 2004