Trade remedies application and investigation guide

Who can apply

Any person can make an application for anti-dumping duties, countervailing duties, or a temporary safeguard action although usually an application is made by, or on behalf of, a New Zealand industry.

A New Zealand industry is defined as producers of like goods or directly competitive goods, or producers whose collective production constitutes a major proportion of the production in New Zealand of like goods or directly competitive goods.

Definitions of goods

Like goods are defined as goods that are:

• like the imported goods in all respects or in their absence, or
• goods that have characteristics closely resembling the imported goods.

Directly competitive goods are defined as:

• goods that as a matter of fact and commercial common sense can be substituted for imported goods.

How to apply

An application is made in writing to us. The information provided in the application document helps us establish whether a case exists to initiate an investigation. Follow the guidance in the following application forms:

You should provide evidence to show that:

• dumping, subsidisation and/or a sudden increase in imports is occurring
• the action is injuring, or threatens to injure, a domestic industry
• your application has support from the domestic industry.

Our Trade Remedies team can offer advice on preparing the application for an investigation. They cannot, however, complete the application for a New Zealand industry.

Protecting confidential information

A successful application to investigate dumping, subsidisation, or potential temporary safeguard measures requires specific information from New Zealand producers. Some producers may have concerns about sharing this information with their competitors. There are 2 ways to resolve this:

• the information can be combined in confidence by a third party, or
• we can combine the information.

The Trade (Anti-dumping and Countervailing Duties) Act 1988 and the Trade (Safeguard Measures) Act 2014 also requires parties who submit confidential information to submit a non-confidential version or summary of it.

Interested parties to the investigation are allowed access to any non-confidential information used in the investigation and that is relevant to the presentation of their case.

Our Trade Remedies team operates a public file for each investigation, which is available on request. Copies of documents from the public file will be provided to interested parties by email or secure link.

Starting an investigation

The application will be processed and considered by our Trade Remedies team. Official correspondence about the application and any subsequent investigation should be to The Manager, Trade and International Team.

The Minister of Commerce and Consumer Affairs is responsible for final decisions and the imposing of remedial duties, where found necessary.

When we receive an application, we check it to ensure it is properly completed. If it is incomplete we will advise you as soon as possible. If it is accepted we must advise the government of the exporting country that the application is being considered.

We then check the evidence in the application to establish there is sufficient evidence to justify an initiation.

An investigation may not be initiated if:

• the imported goods and the like or directly competitive goods produced by the New Zealand industry are not fully described
• full details are not provided of:
  • the applicant and other New Zealand producers
  • the volume and value of the domestic industry’s production of like goods or directly competitive goods
• there is insufficient evidence of:
  • dumping, subsidisation or a sudden increase in imports due to unforeseen developments
  • injury to the New Zealand industry caused by that action
• import volumes and/or dumping/subsidy margins are too small
• there is insufficient support for an investigation from domestic producers.

For many of the same reasons an investigation could be terminated after it has been initiated. During this checking you may be asked to clarify the information that you have provided.

Our report to the Minister

We will complete a report for the Minister of Commerce and Consumer Affairs to consider when deciding whether to initiate a dumping, subsidy or safeguard investigation.

In completing our report, we will check the accuracy of the information in your application and may ask you to clarify the information or provide extra information.

If an investigation is initiated, we will:

• publish a notice in the New Zealand Gazette
• notify the applicant industry
• notify representatives of the countries of export
• notify known exporters and importers
• notify the World Trade Organisation Committee on Safeguards if applicable.

Conducting an investigation

A full dumping, subsidisation or safeguard measures investigation involves us thoroughly checking the evidence in your application. We also gather extensive industry and trade data to establish whether dumping, subsidisation and/or a sudden increase in imports is causing injury.

We may also visit the producers making up the New Zealand industry to verify information they have provided on injury.

If we consider the information provided to be unreliable we may disregard it. During an investigation, we may need a statutory declaration to support any submission or information provided, as set out in Section 9 of the Oaths and Declarations Act 1957.

For a safeguard investigation, we investigate whether:

• increased imports have caused or threaten to cause serious injury
• increased imports were due to unforeseen developments
• a safeguard measure is necessary to prevent or remedy serious injury and to facilitate adjustment by the New Zealand industry to increased competition from the increased imports)

If we deem that a safeguard measure is necessary, we need to ascertain which:

• which goods should be subject to a measure
• which measure is appropriate.
• what is the appropriate extent and duration of the measure
• whether the imposition of the measure is in the public interest. This may include consideration of the following:
  • the likely effectiveness of a safeguard measure in assisting the domestic industry
  • the alternatives to a safeguard measure
  • the likely effect of a safeguard measure on the market (including on consumers)
  • New Zealand’s international relations and trade goals
  • the strategic importance of the industry.

Final determination timeframes

For a safeguard investigation, we must make a reasonable effort to report to the Minister of Commerce and Consumer Affairs within 75 working days of the date of initiation.

If the domestic industry seeks the imposition of a provisional safeguard measure or a provisional safeguard measure is imposed, we must make reasonable efforts to report to the Minister of Commerce and Consumer Affairs within 85 working days of the date of initiation.

After the Minister receives our final recommendations, her/she may decide to either take no action or decide that a safeguard measure should be imposed. There is no statutory time limit on how long the Minister has to make a decision on whether a safeguard measure should be imposed.

For a dumping or subsidy investigation, we will inform all interested parties of the facts and conclusions likely to form the basis for any final determination within 150 days of the initiation of the investigation. This gives interested parties an opportunity to comment.

Within 180 days of the start of a dumping or subsidy investigation, the Minister must make a determination of whether or not the dumping or subsidisation of imports is causing injury to the domestic industry.

Public Interest Test for anti-dumping or countervailing duties

Following a determination by the Minister of Commerce and Consumer Affairs that the dumping or subsidisation of imports is causing injury to the domestic industry, we will conduct a 90-day test to determine whether the imposition of the duty is in the public interest, which will include considering the effect of the duty on the following:

• the prices of the dumped or subsidised goods and on similar goods produced in New Zealand
• the choice or availability of similar goods
• product and service quality
• the financial performance of the domestic industry
• employment levels.

We will also consider:

• whether there is an alternative supply (domestically or internationally) of similar goods available
• any factor that the chief executive considers essential to ensure the existence of competition in the market.

Imposition of duties

Following the initiation of a safeguard measures investigation, the Minister of Commerce and Consumer Affairs may impose a provisional safeguard duty if satisfied that there are reasonable grounds to believe that:

• a delay in imposing a safeguard measure would cause damage to the industry that would be difficult to repair
• increased imports are causing serious injury or threaten to cause serious injury.

If you consider your industry meets the criteria above, you may apply for the imposition of a provisional safeguard duty in your application or any time thereafter.

If provisional measures are imposed we must immediately enter into consultations with the governments of countries who have a substantial interest as exporters of the product concerned. The consultations may, for example, review the information on the investigation and exchange views on the measure.

If there is reasonable evidence of injury from dumping and/or subsidisation, we can impose provisional measures as little as 60 days from the date an investigation was started. These measures are used to prevent further injury from occurring during the remaining period of the investigation. In special circumstances there is also provision for anti-dumping duties to be applied as far back as 60 days before the date of the application of provisional duties.

The rate of the duty cannot be more than the difference between the normal value of the goods and their export price. The Minister may decide the amount of anti-dumping duty can be less than the dumping margin if that is all that is needed to remove the injury.

An anti-dumping duty can be imposed on the imported goods following a final determination, at which point any provisional duties cease to take effect. The final duties may apply from the day after the date of the Minister’s final determination or a specified date after the Minister's final determination.

The anti-dumping duties apply for 5 years unless a review establishes a need to continue them in that the expiry of the duties would cause injury to likely recur.

Upon receipt of the final recommendations from us, the Minister may decide to either take no action or decide that a safeguard measure should be imposed. There is no statutory time limit on how long the Minister has to make a decision on whether a safeguard measure should be imposed.

Review of anti-dumping or countervailing duties

Reviews relate to goods on which duties or undertakings are currently applicable and may be initiated either at the request of interested parties (sufficient reason required) or the Minister of Commerce and Consumer Affairs.

This type of investigation looks at the necessity for the continued application of duties or maintenance of undertakings on the particular goods and involves examination of both material injury and dumping/subsidisation.

The examination is made in the context of deciding what the effect might be should the duties or undertaking be terminated. All known interested parties are invited to participate in the review investigation which is subject to an overall legislative timeframe of 180 days.

Review investigations may result in the termination or continuation of the duty or undertaking and may give rise to a reassessment of the applicable duty rates.

Reassessment of duty rates

Reassessments of duty rates relate to goods on which duties are currently applicable and may be initiated either at the request of interested parties (sufficient reason required) or on the initiative of the Minister of Commerce and Consumer Affairs.

However, this type of investigation looks solely at the rate or amount of duty applicable. The outcome of a reassessment investigation may be the variation of the levels of duty, the form of duty or the liability for duty by specific suppliers.

Reassessments are not bound by a legislative timeframe and will normally only involve suppliers and importers, although all known interested parties will be advised of initiation and of the final outcome.

New shipper reassessments are applicable only for certain goods in respect of which they are provided for in the Minister's original determination and imposition of duties. This situation will normally arise where duties have been imposed in the form of:

• Normal Value (Value For Duty Equivalent) amounts (referred to as NV(VFDE) amounts) or
• Non-Injurious Free-On-Board amounts (referred to as NIFOB amounts) applicable to specified suppliers.

In such cases, goods from suppliers other than those specified will attract a residual rate. This is usually calculated as the weighted average margin of dumping or level of subsidisation from the specified suppliers. The new shipper reassessment mechanism allows suppliers to request the establishment of specific rates or amounts applicable to their goods.

Sometimes we make enquiries outside of the investigative process, eg, monitoring of the effectiveness of anti-dumping duties, whether anti-dumping duties are being correctly applied and so on.