Export Control (Dairy Produce Tariff Rate Quotas) Order 2016

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I, Jennifer Cupit, as delegate of the Secretary of the Department of Agriculture and Water Resources, make the following order.

Dated 10 November 2016

Jennifer Cupit

Assistant Secretary

Residues and Food Branch

Exports Division

Department of Agriculture and Water Resources

Contents

Part 1—Preliminary

1 Name

2 Commencement

3 Authority

4 Purpose of this instrument

5 Definitions

6 Meaning of annual entitlement

7 Meaning of EU quota goods

8 Meaning of significant change

9 Meaning of US FTA quota goods

10 Meaning of US WTO quota goods

11 Working out the weight of quota goods in the US FTA quota goods creams and ice cream category

Part 2—Allocation of annual entitlements

12 Application for annual entitlement

13 Secretary may ask for further information

14 Allocation of annual entitlement

15 Working out amount of annual entitlement for a category—general

16 Working out amount of annual entitlement for the US FTA goods non‑fat dried milk powder and skim milk powder category

17 Penalty on allocation for unused annual entitlement

18 Conditions on annual entitlements

Part 3—Cancellation or transfer of annual entitlements

19 Relinquishment of unused annual entitlement

20 Declaration of unused annual entitlement

21 Transfer of annual entitlement

Part 4—Allocation of FCFS entitlements

22 When FCFS entitlement may be allocated

23 Application for FCFS entitlement

24 Allocation of FCFS entitlement

25 Conditions on allocation of FCFS entitlement

26 Cancellation of FCFS entitlement

Part 5—Tariff rate quota certificates

27 IMA 1 certificates for EU quota goods

28 Tariff rate quota certificates for US FTA quota goods

29 Tariff rate quota certificates for US WTO quota goods

30 How to work out the amount of quota goods a person has exported

31 Tariff rate quota certificates are not transferable

Part 6—Variation and cancellation

32 Variation or cancellation of quota entitlement or tariff rate quota certificate

Part 7—Review of decisions

33 Application for reconsideration by Secretary of certain decisions

34 Secretary to reconsider initial decision

35 Review by the Administrative Appeals Tribunal

Part 8—Miscellaneous

36 Decisions made by computer

Part 9—Application and transitional provisions

37 Applications for annual quota made before commencement

38 Requests for further information made before commencement

39 Penalties imposed in relation to surpluses for the 2016 calendar year or an earlier calendar year

40 Repeal of this Part

Part 1—Preliminary

1 Name

This instrument is the Export Control (Dairy Produce Tariff Rate Quotas) Order 2016.

2 Commencement

(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this instrument The day after this instrument is registered. 16 November 2016

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3 Authority

This instrument is made under section 23A of the Export Control Act 1982.

4 Purpose of this instrument

This instrument provides for, and in relation to, the establishment and administration of:

(a) a system of tariff rate quotas for the export from Australia to a member country of the EU of EU quota goods at a reduced tariff rate in a quota year beginning on or after 1 January 2017; and

(b) a system of tariff rate quotas for the export from Australia to the United States of America of US FTA quota goods under the Free Trade Agreement preferential tariff‑rate quota in a quota year beginning on or after 1 January 2017; and

(c) a system of tariff rate quotas for the export from Australia to the United States of America of US WTO quota goods at a special rate of duty in a quota year beginning on or after 1 January 2017.

Note: A certain weight of quota goods in a category may be exported to the regulated market for the category at a reduced tariff rate. Quota goods must be covered by a tariff rate quota certificate issued under this instrument to be eligible for the reduced tariff. A higher tariff rate may apply to quota goods exported to a regulated market and not covered by such a tariff rate quota certificate.

5 Definitions

In this instrument:

access amount for a category for a quota year means:

(a) for a category of EU quota goods—the total weight of goods of the category that may be exported from Australia to the EU in the quota year at a reduced tariff rate under the Commission Regulation; or

(b) for a category of US FTA quota goods—the total weight of goods of the category that may be exported from Australia to the United States of America in the quota year at a reduced tariff rate under the Free Trade Agreement; or

additional U.S. note means an additional U.S. note to chapter 4 of the Harmonized Tariff Schedule.

annual entitlement has the meaning given by section 6.

category means a category of quota goods referred to in column 1 of an item in the table in section 7, 9 or 10.

Commission Regulation means the Commission Regulation (EC) No 2535/2001 as in force from time to time.

Note: The text of the Commission Regulation could in 2016 be viewed on the EUR‑Lex website (http://eur‑lex.europa.eu).

consignment means a single shipment (by sea or air) of quota goods that is exported to a single consignee.

dairy industry means industry in Australia that is concerned with the production, processing, manufacture, distribution and sale (whether for export or otherwise) of dairy produce.

dairy manufacturer means a person that, for commercial purposes:

(a) collects milk from farms and processes it; or

(b) purchases dairy produce and subjects it to a process that changes it from one kind of produce to another (for example, milk into yoghurt); or

(c) owns dairy produce and subcontracts for the produce to be processed or transformed in a plant the person does not own; or

(d) purchases dairy produce and repackages it.

dairy produce has the same meaning as in the Dairy Produce Act 1986.

EU means the European Union.

EU quota goods has the meaning given by section 7.

EXDOC means the electronic documentation system maintained by the Department.

FCFS means first‑come‑first‑served.

FCFS entitlement of a person for a category for a quota year means the amount allocated to the person under section 24 for the category for the quota year as affected by:

(a) any amount cancelled under section 26; and

(b) any variation or cancellation under section 32.

Free Trade Agreement means the Australia‑United States Free Trade Agreement done at Washington DC on 18 May 2004, as in force from time to time.

Note: The text of the Agreement could in 2016 be viewed on the Department of Foreign Affairs and Trade’s website (http://www.dfat.gov.au).

Harmonized Tariff Code means the code used in the Harmonized Tariff Schedule.

Harmonized Tariff Schedule means the Harmonized Tariff Schedule of the United States published by the United States International Trade Commission, as in force from time to time.

Note: The Harmonized Tariff Schedule could in 2016 be viewed on the United States International Trade Commission’s website (http://www.usitc.gov).

IMA 1 certificate means a tariff rate quota certificate issued under section 27.

Note: An IMA 1 certificate (or inward monitoring arrangement certificate) is the form of tariff rate quota certificate required under the Commission Regulation for EU quota goods to be eligible for a reduced tariff rate.

initial decision means a decision referred to in subsection 33(1).

quota entitlement for a category for a quota year means:

(a) annual entitlement for the category for the quota year; or

(b) FCFS entitlement for the category for the quota year.

quota goods means any of the following goods:

(a) EU quota goods;

(b) US FTA quota goods;

Quota Unit means the section of the Department that is responsible for managing the systems of tariff rate quotas referred to in section 4.

quota year means a calendar year beginning on or after 1 January 2017.

regulated market means:

(a) for a category of EU quota goods—the European Union; or

(b) for a category of US FTA quota goods or US WTO quota goods—the United States of America.

requested allocation of a dairy manufacturer for a category for a quota year means the amount in relation to the category for the quota year requested in an application made in accordance with section 12.

set‑aside amount for a category for a quota year (being a category to which section 15 applies) means an amount that is equal to 2% of the access amount for the category for the quota year.

Note: A set‑aside amount is taken into account in working out the allocation of annual entitlement for a category for a quota year under section 15. That section does not apply to the US FTA quota goods non‑fat dried milk powder and skim milk powder category.

shipped weight of quota goods means the weight (in kilograms) of the goods when they are loaded for shipment.

tariff rate quota certificate means:

(a) an IMA 1 certificate issued under section 27; or

(b) a certificate issued under section 28 or 29.

total quota entitlement of a person for a category for a quota year means the sum of:

(a) the person’s annual entitlement for the category for the quota year; and

(b) the person’s FCFS entitlement for the category for the quota year.

uncommitted access amount for a category for a quota year has the meaning given by subsection 22(1).

US means the United States of America.

US FTA quota goods has the meaning given by section 9.

US WTO quota goods has the meaning given by section 10.

working day means a day that is not a Saturday, Sunday or public holiday in the Australian Capital Territory.

6 Meaning of annual entitlement

(1) If a dairy manufacturer is allocated an amount under section 14 for a category for a quota year, the dairy manufacturer’s annual entitlement for the category for the quota year is the allocated amount:

(a) excluding any amount cancelled under Part 3; and

(b) as affected by any transfer of annual entitlement under section 21; and

(2) If one or more amounts for a category for a quota year are transferred to a person under section 21, but no amount was allocated to the person under section 14 for the category for the quota year, the person’s annual entitlement for the category for the quota year is the total amount transferred:

(a) excluding any amount cancelled under Part 3; and

(b) as affected by any other transfer of annual entitlement under section 21; and

7 Meaning of EU quota goods

Goods mentioned in column 2 of an item in the following table:

(a) are EU quota goods; and

(b) are of the category of EU quota goods referred to in column 1 of that item.

EU quota goods
Item Column 1Category of EU quota goods Column 2Goods
1 Cheese for processing Goods described under quota number 09.4522 in Annex IIIA of the Commission Regulation
2 Whole cheddar cheese Goods described under quota number 09.4521 in Annex IIIA of the Commission Regulation

8 Meaning of significant change

A significant change takes place in relation to a person who has a quota entitlement for a category for a quota year if:

(a) the person changes any of the following:

(i) its name, or the registered business name under which it carries on business;

(ii) its business address or other contact details;

(iii) the kind of business it undertakes; or

(b) if the person is a corporation—the person becomes an externally administered body corporate (within the meaning of the Corporations Act 2001); or

9 Meaning of US FTA quota goods

Goods mentioned in column 2 of an item in the following table:

(a) are US FTA quota goods; and

(b) are of the category of US FTA quota goods referred to in column 1 of that item.

US FTA quota goods
Item Column 1Category of US FTA quota goods Column 2Goods
1 American cheese Goods that will enter the United States of America under subheading 9913.04.50 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
2 Butter Goods that will enter the United States of America under subheading 9913.04.10 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
3 Cheddar cheese Goods that will enter the United States of America under subheading 9913.04.45 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
4 Condensed milk Goods that will enter the United States of America under subheading 9913.04.30 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
5 Creams and ice cream Goods that will enter the United States of America under subheading 9913.04.05 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
6 European‑type cheese Goods that will enter the United States of America under subheading 9913.04.40 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
7 Goya cheese Goods that will enter the United States of America under subheading 9913.04.55 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
8 Non‑fat dried milk powder and skim milk powder Goods that will enter the United States of America under subheading 9913.04.15 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
9 Other cheese Goods that will enter the United States of America under subheading 9913.04.35 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
10 Other dairy products Goods that will enter the United States of America under subheading 9913.04.25 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
11 Other milk powder Goods that will enter the United States of America under subheading 9913.04.20 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule
12 Swiss‑type cheese Goods that will enter the United States of America under subheading 9913.04.65 as listed under subchapter XIII of Chapter 99 of the Harmonized Tariff Schedule

10 Meaning of US WTO quota goods

Goods mentioned in column 2 of an item in the following table:

(a) are US WTO quota goods; and

(b) are of the category of US WTO quota goods referred to in column 1 of that item.

US WTO quota goods
Item Column 1Category of US WTO quota goods Column 2Goods Column 3Access amount (kg)
1 American‑type cheese Goods mentioned in additional U.S. note 19, being any of the following goods that will enter the United States of America under subheading 0406.10.34, 0406.20.36, 0406.20.69, 0406.30.34, 0406.30.69, 0406.90.52 or 0406.90.82 of the Harmonized Tariff Code:(a) American‑type cheese, including Colby, washed curd and granular cheese but not cheddar cheese;(b) cheese;(c) substitutes for cheese that contain, or are processed from, American‑type cheese mentioned in paragraph (a) 119,002
2 Cheddar cheese Goods mentioned in additional U.S. note 18, being any of the following goods that will enter the United States of America under subheading 0406.10.24, 0406.20.31, 0406.20.65, 0406.30.24, 0406.30.65, 0406.90.08 or 0406.90.76 of the Harmonized Tariff Code:(a) cheddar cheese;(b) cheese;(c) substitutes for cheese that contain, or are processed from, cheddar cheese 1,465,501
3 Other unspecified cheese Goods mentioned in additional U.S. note 16, being cheese, and substitutes for cheese, that:(a) will enter the United States of America under subheading 0406.10.04, 0406.10.84, 0406.20.89, 0406.30.89 or 0406.90.95 of the Harmonized Tariff Code; and(b) are not any of the following:(i) cheese not containing cow’s milk;(ii) soft ripened cow’s milk cheese;(iii) cheese (other than cottage cheese) that contains 0.5% or less by weight of butterfat;(iv) an article to which the United States of America applies a quantitative limitation under any of additional U.S. notes 17 to 25 2,508,830
4 Swiss and Emmentaler cheese Goods mentioned in additional U.S. note 25, being Swiss and Emmentaler cheese that:(a) have eye formation; and(b) will enter the United States of America under subheading 0406.90.46 of the Harmonized Tariff Code 290,302

11 Working out the weight of quota goods in the US FTA quota goods creams and ice cream category

For the purposes of working out the weight of quota goods in the US FTA quota goods creams and ice cream category:

(a) a reference to the weight of the goods is to be read as a reference to the volume of goods; and

(b) a reference to kilograms is to be read as a reference to litres; and

(d) a reference to tonnes is to be read as a reference to kilolitres; and

(e) a reference to shipped weight is to be read as a reference to the volume, in litres, of the goods when they have been loaded for shipment.

Part 2—Allocation of annual entitlements

12 Application for annual entitlement

(1) A dairy manufacturer may apply to the Secretary for an allocation of annual entitlement for a category for a quota year.

(2) The application must be:

(a) made by:

(i) if the application relates to a category of US WTO quota goods—1 October in the year immediately before the quota year; or

(ii) otherwise—12 October in the year immediately before the quota year; and

(b) given to the Quota Unit.

(3) The application must:

(a) be made in a form approved by the Secretary; and

(b) include the following information:

(i) the name of the dairy manufacturer;

(ii) the dairy manufacturer’s business address;

(iii) the dairy manufacturer’s contact phone number;

(iv) the category for which the allocation is requested;

(v) the amount of annual entitlement requested for the category for the quota year (which must be a minimum of 10 tonnes if the application relates to a category of US WTO goods);

(vi) if the application relates to a category of US WTO goods—the name of the importer in the United States of America to which the goods are to be shipped.

13 Secretary may ask for further information

(1) For the purpose of making a decision on an application made under subsection 12(1), the Secretary may ask the applicant to provide further information.

(2) The request must:

(a) be made in writing; and

(b) specify the information required; and

(c) state the date by which the applicant must give the information to the Secretary (which must not be earlier than 7 days after the date of the request).

(3) If the applicant does not give the Secretary the required information by the date stated in the request, the application is taken not to have been made in accordance with section 12.

14 Allocation of annual entitlement

(1) The Secretary may allocate annual entitlements for a category for a quota year after the later of the following:

(a) the date by which applications for the allocation of annual entitlements for the category for the quota year must be received;

(b) the last due date for any requests for information made under section 13 in relation to such applications.

(2) Subject to subsection (3), if a dairy manufacturer has applied for an allocation of annual entitlement for a category for a quota year in accordance with section 12, the Secretary must allocate to the dairy manufacturer as the dairy manufacturer’s annual entitlement for the category for the quota year:

(a) if the total requested allocations of all dairy manufacturers for the category for the quota year is not more than the access amount for the category for the quota year—an amount equal to the requested allocation of the dairy manufacturer for the category for the quota year; or

(b) if the total requested allocations of all dairy manufacturers for the category for the quota year is more than the access amount for the category for the quota year—the amount worked out under section 15 or 16 for the dairy manufacturer for the category for the quota year.

(3) The Secretary may decide not to allocate an amount of annual entitlement for the category for the quota year to a dairy manufacturer, or any dairy manufacturer, if the Secretary considers that it would not be in the best interests of the dairy industry to do so.

Notification of allocation of annual entitlement

(4) If the Secretary allocates an amount of annual entitlement for a category to a dairy manufacturer for a quota year, the Secretary must give the dairy manufacturer a written notice stating:

(a) the amount of the entitlement; and

(b) the conditions to which the entitlement is subject.

Notification of no allocation of annual entitlement

(5) If the Secretary does not allocate an amount of annual entitlement for a category to a dairy manufacturer for a quota year because of subsection (3), the Secretary must, within 7 days after making the decision, give the dairy manufacturer a written notice stating:

(a) the reasons for the decision; and

(b) that the dairy manufacturer may apply to the Secretary to have the decision reconsidered.

Note: For review of decisions, see Part 7.

15 Working out amount of annual entitlement for a category—general

(1) This section applies to a category other than the US FTA quota goods non‑fat dried milk powder and skim milk powder category.

Note: See paragraph 14(2)(b).

(2) The amount to be allocated to a dairy manufacturer as the dairy manufacturer’s annual entitlement for a category for a quota year is worked out using the following method statement.

Method statement

Step 1. For each applicant for an allocation of annual entitlement for the category for the quota year, work out the preliminary allocation for the applicant using the formula:

View image in the official source

where:

AGE (or applicant’s global exports) is the weight of goods, matching the physical description of goods of the category, that was exported by the applicant to any foreign country (including the regulated market) during the 3 financial years immediately preceding the current financial year.

ARME (or applicant’s regulated market exports) is the weight of goods, matching the physical description of goods of the category, that was exported by the applicant to the regulated market for the category during the 3 financial years immediately preceding the current financial year.

Example: For the US WTO quota goods cheddar cheese category, the ARME includes all of the applicant’s exports of cheddar cheese to the United States of America, regardless of the tariff rate that applied to the cheese when it entered that country.

current financial year is the financial year ending on 30 June in the quota year.

generally available quota is the access amount for the category for the quota year less the set‑aside amount for the category for the quota year.

TGE (or total global exports) is the weight of goods, matching the physical description of goods of the category, that was exported by all applicants to any foreign country (including the regulated market) during the 3 financial years immediately preceding the current financial year.

TRME (or total regulated market exports) is the weight of goods, matching the physical description of goods of the category, that was exported by all applicants to the regulated market for the category during the 3 financial years immediately preceding the current financial year.

Step 2. If the preliminary allocation for any applicant is greater than the applicant’s requested allocation for the category for the quota year, withdraw from that applicant the amount in excess of the requested allocation.

The total amount withdrawn from these applicants is the additional amount.

Allocate all of the additional amount to the applicants (the eligible applicants) that have less than their requested allocation for the category for the quota year, so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants.

Repeat this step if any applicant has more than the applicant’s requested allocation as a result of being allocated part of the additional amount.

Step 3: If no applicant’s allocation after step 2 was less than 60 tonnes, repeat steps 1 and 2, recalculating the preliminary allocation using the access amount for the category for the quota year instead of the generally available quota.

When steps 1 and 2 have been repeated, go to step 8.

Each applicant’s maximum allocation is equal to the applicant’s requested allocation for the category for the quota year.

Distribution of set‑aside amount

Step 4. If any applicant’s allocation after step 2 was less than 60 tonnes, that applicant is a small applicant.

For each applicant that is not a small applicant, the maximum allocation is equal to the applicant’s requested allocation for the category for the quota year.

For each small applicant, the maximum allocation is equal to the lesser of:

(a) 60 tonnes; and

(b) the applicant’s requested allocation for the category for the quota year.

The small applicants that have less than their maximum allocation are the eligible applicants.

If there are no eligible applicants, go to step 6.

If there is at least one eligible applicant, divide the set‑aside amount for the category by the number of eligible applicants and add the result to each eligible applicant’s allocation.

Step 5. If, after step 4, any small applicant’s allocation is more than the applicant’s maximum allocation, withdraw from that applicant the amount in excess of the maximum allocation.

The total amount withdrawn from these applicants is the additional amount.

The small applicants that have less than their maximum allocation are the eligible applicants.

If there are no eligible applicants, go to step 6.

If there is at least one eligible applicant, divide the additional amount by the number of eligible applicants and add the result to each eligible applicant’s allocation.

Repeat this step if any small applicant has more than the applicant’s maximum allocation as a result of being allocated part of the additional amount.

Step 6. If any of the access amount for the category for the quota year is unallocated, allocate all of the unallocated amount to the applicants (the eligible applicants) that are not small applicants and that have less than their maximum allocation, so that each eligible applicant receives a proportion of the unallocated amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants.

Step 7. If, as a result of being allocated an extra amount in step 6, any applicant now has more than the applicant’s maximum allocation, withdraw from that applicant the amount in excess of the maximum allocation.

The total amount withdrawn from these applicants is the additional amount.

Allocate all of the additional amount to the applicants (the eligible applicants) that are not small applicants and that have less than their maximum allocation, so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants.

Repeat this step if any applicant has more than the applicant’s maximum allocation as a result of being allocated part of the additional amount.

Deduction of penalties

Step 8. If a penalty is imposed on an applicant by section 17 in relation to the allocation, withdraw the amount of the penalty from the applicant’s allocation.

The total amount withdrawn from these applicants is the additional amount.

Allocate all of the additional amount to the applicants (the eligible applicants) that have less than their maximum allocation and that have not had an amount withdrawn, so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants.

Note: If, as a result of amounts being withdrawn from applicants under this step due to the imposition of a penalty, the total amount of annual entitlement allocated to applicants for the category for the quota year is less than the access amount for the category for the quota year, the unallocated amount may be allocated to any person as FCFS entitlement for the category for the quota year (see Part 4).

Step 9. If, as a result of being allocated an extra amount in step 8, any applicant now has more than the applicant’s maximum allocation, withdraw from that applicant the amount in excess of the maximum allocation.

The total amount withdrawn from these applicants is the additional amount.

Repeat this step if any applicant has more than the applicant’s maximum allocation as a result of being allocated part of the additional amount.

Minimum allocation for category of US WTO quota goods

Step 10. If the category is a US WTO category and any applicant has an allocation of less than 10 tonnes, withdraw that applicant’s allocation.

The total amount withdrawn from these applicants is the additional amount.

Allocate all of the additional amount to the applicants (the eligible applicants) that have an allocation of at least 10 tonnes and less than their maximum allocation, so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants.

Step 11. If, as a result of being allocated an extra amount in step 10, any applicant now has more than the applicant’s maximum allocation, withdraw from that applicant the amount in excess of the maximum allocation.

The total amount withdrawn from these applicants is the additional amount.

Repeat this step if any applicant has more than the applicant’s maximum allocation as a result of being allocated part of the additional amount.

Rounding

Step 12. Round all allocations as they stand after step 11 to the nearest kilogram, with 0.5 of a kilogram to be rounded up.

If this rounding makes the sum of all allocations greater than the access amount for the category for the quota year, round all allocations as they stand after step 11 down to the nearest kilogram instead.

16 Working out amount of annual entitlement for the US FTA goods non‑fat dried milk powder and skim milk powder category

(1) This section applies to the US FTA quota goods non‑fat dried milk powder and skim milk powder category.

Note: See paragraph 14(2)(b).

(2) The amount to be allocated to a dairy manufacturer as the dairy manufacturer’s annual entitlement for the US FTA quota goods non‑fat dried milk powder and skim milk powder category for a quota year is worked out using the following method statement.

Method statement

Step 1. For each applicant for annual entitlement for the category for the quota year, work out the preliminary allocation for the applicant using the formula:

View image in the official source

where:

access amount is the access amount for the category for the quota year.

current financial year is the financial year ending on 30 June in the quota year.

The total amount withdrawn from these applicants is the additional amount.

Repeat this step if any applicant has more than the applicant’s requested allocation as a result of being allocated part of the additional amount.

Deduction of penalties

Step 3. If a penalty is imposed on an applicant by section 17 in relation to the allocation, withdraw the amount of the penalty from the applicant’s allocation.

The total amount withdrawn from these applicants is the additional amount.

Allocate all of the additional amount to the applicants (the eligible applicants) that have less than their requested allocation for the category for the quota year and that have not had an amount withdrawn, so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants.

Step 4. If, as a result of being allocated an extra amount in step 3, any applicant now has more than the applicant’s requested allocation for the category for the quota year, withdraw from that applicant the amount in excess of the requested allocation.

The total amount withdrawn from these applicants is the additional amount.

Repeat this step if any applicant has more than the applicant’s requested allocation as a result of being allocated an additional amount.

Rounding

Step 5. Round all allocations as they stand after step 4 to the nearest kilogram, with 0.5 of a kilogram to be rounded up.

If this rounding makes the sum of all allocations greater than the access amount for the category for the quota year, round all allocations as they stand after step 4 down to the nearest kilogram instead.

17 Penalty on allocation for unused annual entitlement

(1) A dairy manufacturer has surplus annual entitlement for a category for a quota year (the surplus quota year) if the sum of the following amounts is greater than zero:

(a) any amount of the dairy manufacturer’s annual entitlement for the category for the surplus quota year that is unused at the end of 31 December in the surplus quota year;

(b) any amount of annual entitlement for the category for the surplus quota year that the dairy manufacturer relinquished under section 19 after 15 June in the surplus quota year;

(c) any amount of annual entitlement for the category for the surplus quota year that the dairy manufacturer transferred under section 21 to a person that was not a dairy manufacturer, and that:

(i) was relinquished by a person that was not a dairy manufacturer under section 19 after 15 June in the surplus quota year; or

(ii) is unused at the end of 31 December in the surplus quota year.

(2) For the purpose of working out whether an amount of annual entitlement the dairy manufacturer transferred under section 21 to a person that was not a dairy manufacturer is unused, if:

(a) an amount of annual entitlement for the category for the surplus quota year was transferred to the person by one or more other dairy manufacturers; and

(b) as at the end of 31 December in the surplus quota year, the person has an amount of annual entitlement for the category for the surplus quota year that is unused;

that unused amount is to be distributed between the dairy manufacturers in proportion to the amount of annual entitlement for the category for the surplus quota year that each dairy manufacturer transferred to the person.

(3) If:

(a) the access amount for the category for the surplus quota year is less than 3,000 tonnes; and

(b) the dairy manufacturer’s surplus annual entitlement for the category for the surplus quota year is more than 2% of the dairy manufacturer’s annual entitlement for the category for the surplus quota year;

a penalty of an amount equal to the surplus annual entitlement is imposed on the dairy manufacturer.

(4) If:

(a) the access amount for the category for the surplus quota year is at least 3,000 tonnes; and

(b) the dairy manufacturer’s surplus annual entitlement for the category for the surplus quota year is more than 1% of the dairy manufacturer’s annual entitlement for the category for the surplus quota year;

a penalty of an amount equal to the surplus annual entitlement is imposed on the dairy manufacturer.

(5) Subject to subsection (6), the penalty is imposed in relation to the next allocation under paragraph 14(2)(b) to the dairy manufacturer of annual entitlement for the category for a quota year.

Note: Because an allocation under section 14 of annual entitlement for a category for a quota year occurs before the start of the quota year, the next allocation will be, at the earliest, for the quota year that is 2 years after the surplus quota year.

(6) The penalty expires:

(a) after the next allocation under paragraph 14(2)(a) or (b) to the dairy manufacturer of annual entitlement for the category for a quota year; or

(b) if the next allocation does not occur within the period of 5 years after the end of the surplus quota year—at the end of that period.

Note: Penalties imposed under this section are taken into account in working out amounts under section 15 or 16. Amounts are only worked out under those sections if paragraph 14(2)(b) applies to the allocation of annual entitlement for a category for a quota year. If paragraph 14(2)(a) applies to the next allocation, the penalty will not reduce the amount allocated to the dairy manufacturer under section 14. However, the penalty will still expire due to paragraph (6)(a) of this section.

Example: A penalty is imposed on the dairy manufacturer because the dairy manufacturer has surplus annual entitlement for a category for the 2017 quota year. The penalty will expire at the end of 2022 if the dairy manufacturer is not allocated annual entitlement for the category for any of the 2019 to 2023 quota years.

18 Conditions on annual entitlements

Annual entitlement for a category for a quota year is subject to the following conditions:

(a) the person who has the entitlement must, within 14 days after a significant change occurs, notify the Quota Unit in writing of the change;

(b) any other condition the Secretary considers appropriate.

Note: For significant change, see section 8.

Part 3—Cancellation or transfer of annual entitlements

19 Relinquishment of unused annual entitlement

(1) A person who has an annual entitlement for a category for a quota year may, at any time before the end of the quota year, make a declaration stating that the person relinquishes an amount of the entitlement that is unused.

(2) The declaration must be made in writing and given to the Quota Unit.

(3) If a person makes a declaration under subsection (1) in relation to a relinquished amount, the Secretary must cancel the amount.

Note: If the person makes the declaration after 15 June in the quota year, the amount will be counted in determining a penalty under section 17.

20 Declaration of unused annual entitlement

(1) A person who has an annual entitlement for a category for a quota year must, before the end of 15 June in the quota year, make a declaration stating how the person intends to deal with any amount of the entitlement that will be unused at the end of that day.

(2) The declaration must be made in writing and given to the Quota Unit.

(3) If a person:

(a) has an amount of annual entitlement for a category for a quota year that is unused at the end of 15 June in the quota year; and

(b) has not made a declaration in accordance with subsections (1) and (2) about the unused amount;

the Secretary must cancel the unused amount.

21 Transfer of annual entitlement

(1) A person (the transferor) who has an annual entitlement for a category for a quota year may, at any time before the end of 15 June in the quota year, transfer some or all of the entitlement to another person (the transferee) if the transferor notifies the Quota Unit, in a form approved by the Secretary, of the following:

(a) the name of the transferor;

(b) the name of the transferee and whether the transferee is a dairy manufacturer;

Note: If the transferor is a dairy manufacturer and the transferee is not a dairy manufacturer, and the transferred annual entitlement is relinquished after 15 June in the quota year by a person who is not a dairy manufacturer or is unused at the end of the quota year, then the transferred entitlement will be counted against the transferor in determining a penalty under section 17.

(2) If the Quota Unit receives a notice under subsection (1), the Secretary must transfer the amount in accordance with the notice.

(3) A transfer has no effect for the purposes of this instrument if notice of the transfer is not given in accordance with subsection (1).

(4) Annual entitlement for a category for a quota year that is transferred under this section is subject to the same conditions that applied to the entitlement before it was transferred.

(5) A person who has an annual entitlement for a category for a quota year is not taken to have transferred some or all of the person’s entitlement merely because the person authorised an agent to export goods of that category on behalf of the person.

Part 4—Allocation of FCFS entitlements

22 When FCFS entitlement may be allocated

(1) The uncommitted access amount for a category for a quota year is the amount equal to the access amount for the category for the quota year, less:

(a) the total amounts allocated as annual entitlements for the category for the quota year under Part 2 (as affected by any amounts cancelled under Part 3 or any variations or cancellations under section 32); and

(b) any amounts allocated as FCFS entitlements for the category for the quota year (as affected by any amounts cancelled under section 26 or any variations or cancellations under section 32).

(2) If the uncommitted access amount is greater than zero, the Secretary may, in accordance with this Part, allocate the amount as FCFS entitlements for the category for the quota year.

23 Application for FCFS entitlement

(1) A person may apply to the Secretary for an allocation of FCFS entitlement for a category for a quota year.

Note: The person does not have to be a dairy manufacturer.

(2) The application must be:

(a) made on or after:

(i) 1 November in the year (the previous year) immediately before the quota year; or

(ii) if 1 November in the previous year is not a working day—the next working day in the previous year; and

(b) given to the Quota Unit.

(3) The application must:

(a) be in a form approved by the Secretary; and

(b) include the following information:

(i) the name of the applicant;

(ii) the applicant’s business address;

(iii) the applicant’s contact phone number;

(iv) the category for which the allocation is requested;

(v) each date on which the applicant intends to export a consignment of goods of the category;

(vi) if more than one date is specified under subparagraph (v)—how much of the amount requested the applicant intends to export in each consignment;

(vii) the amount of FCFS entitlement for the category requested for the quota year.

24 Allocation of FCFS entitlement

(1) The Secretary must deal with applications made in accordance with section 23 in relation to a category for a quota year on a first‑come‑first‑served basis.

(2) Subject to subsection (4), if:

(a) a person applies in accordance with section 23 for an allocation of FCFS entitlement for a category for a quota year; and

(b) the amount requested in the application is less than or equal to the uncommitted access amount for the category for the quota year;

the Secretary must allocate the amount requested as the applicant’s FCFS entitlement for the category for the quota year.

(3) Subject to subsection (4), if:

(a) a person applies in accordance with section 23 for an allocation of FCFS entitlement for a category for a quota year; and

(b) the amount requested in the application is more than the uncommitted access amount for the category for the quota year;

the Secretary may allocate the uncommitted access amount as the applicant’s FCFS entitlement for the category for the quota year.

(4) The Secretary may decide not to allocate an amount of FCFS entitlement for the category for the quota year to a person if the Secretary considers that it would not be in the best interests of the dairy industry to do so.

Notification of allocation of FCFS entitlement

(5) If the Secretary allocates an amount of FCFS entitlement for a category to a person for a quota year, the Secretary must give the person a written notice stating:

(a) the amount of the entitlement; and

(b) the conditions to which the entitlement is subject.

Notification of no allocation of FCFS entitlement

(6) If the Secretary does not allocate an amount of FCFS entitlement for a category to a person for a quota year because of subsection (4), the Secretary must, within 7 days after making the decision give the person a written notice stating:

(a) the reasons for the decision; and

(b) that the person may apply to the Secretary to have the decision reconsidered.

Note: For review of decisions, see Part 7.

25 Conditions on allocation of FCFS entitlement

FCFS entitlement for a category for a quota year is subject to the following conditions:

(a) the person who has the entitlement must, within 14 days after a significant change occurs, notify the Quota Unit in writing of the change;

(b) any other condition the Secretary considers appropriate.

Note: For significant change, see section 8.

26 Cancellation of FCFS entitlement

If:

(a) a person is allocated an amount of FCFS entitlement for a category for a quota year under section 24; and

(b) in the application for the allocation the person specified a date on which the person intended to export a consignment of quota goods; and

(c) the person does not apply for a tariff rate quota certificate for the export of the consignment of quota goods by the end of 28 days after that date;

the Secretary must cancel the amount.

Part 5—Tariff rate quota certificates

27 IMA 1 certificates for EU quota goods

Application for IMA 1 certificate

(1) A person who has a quota entitlement for a category of EU quota goods for a quota year may apply to the Secretary for an IMA 1 certificate for the export from Australia to a member country of the EU of a consignment of EU quota goods of that category in the quota year.

(2) The application must be made by making an entry in EXDOC for the consignment of quota goods.

Issue of IMA 1 certificate

(3) The Secretary must issue the certificate to the person if:

(a) the sum of the following is not more than the person’s total quota entitlement for the category for the quota year:

(i) the total shipped weight of quota goods of that category that has been exported by the person from Australia to a member country of the EU in the quota year at a reduced tariff rate;

(ii) the shipped weight of the consignment of quota goods; and

(b) issuing the certificate would not result in the access amount for the category for the quota year being exceeded.

28 Tariff rate quota certificates for US FTA quota goods

Application for tariff rate quota certificate

(1) A person who has a quota entitlement for a category of US FTA quota goods for a quota year may apply to the Secretary for a tariff rate quota certificate for the export from Australia to the United States of America of a consignment of US FTA quota goods of that category in the quota year.

(2) The application must be made:

(a) by making an entry in EXDOC for the consignment of quota goods; or

(b) in the form approved by the Secretary.

Issue of tariff rate quota certificate

(3) The Secretary must issue the certificate to the person if:

(a) the sum of the following is not more than the person’s total quota entitlement for the category for the quota year:

(i) the total shipped weight of quota goods of that category that has been exported by the person from Australia to the United States of America in the quota year within the Free Trade Agreement preferential tariff‑rate quota;

(ii) the shipped weight of the consignment of quota goods; and

(b) issuing the certificate would not result in the access amount for the category for the quota year being exceeded.

29 Tariff rate quota certificates for US WTO quota goods

Application for tariff rate quota certificate

(1) A person who has a quota entitlement for a category of US WTO quota goods for a quota year may apply to the Secretary for a tariff rate quota certificate for the export from Australia to the United States of America of a consignment of US WTO quota goods of that category in the quota year.

(2) The application must be made:

(a) by making an entry in EXDOC for the consignment of quota goods; or

(b) in the form approved by the Secretary.

Issue of tariff rate quota certificate

(3) The Secretary must issue the certificate to the person if:

(a) the sum of the following is not more than the person’s total quota entitlement for the category for the quota year:

(i) the total shipped weight of quota goods of that category that has been exported by the person from Australia to the United States of America in the quota year at a special rate of duty;

(ii) the shipped weight of the consignment of quota goods; and

(b) issuing the certificate would not result in the access amount for the category for the quota year being exceeded.

30 How to work out the amount of quota goods a person has exported

(1) Subject to subsection (2), if a tariff rate quota certificate in relation to a consignment of quota goods is issued to a person, the person is taken to have exported the shipped weight of quota goods stated in the certificate.

(2) If:

(a) the shipped weight of the consignment is less than the shipped weight stated in the tariff rate quota certificate for the consignment; and

(b) apart from this subsection, the person would be taken to have exported the difference between the weights; and

(c) the person tells the Secretary in writing, within 28 days after the goods are loaded for shipment, the actual shipped weight of the consignment;

the person is not taken to have exported the difference between the weights.

31 Tariff rate quota certificates are not transferable

A tariff rate quota certificate is not transferable.

Part 6—Variation and cancellation

32 Variation or cancellation of quota entitlement or tariff rate quota certificate

Variation or cancellation on own initiative

(1) The Secretary may, at any time before the end of a quota year, vary or cancel a quota entitlement for a category for the quota year, or a tariff rate quota certificate issued in relation to the quota year, if:

(a) the Secretary is satisfied that the allocation of the entitlement or issue of the certificate is no longer consistent with the purpose of this instrument; or

(b) the Secretary considers that the variation or cancellation is in the best interests of the dairy industry.

(2) The Secretary may vary the conditions to which a person’s quota entitlement for a category for a quota year is subject under paragraph 18(b) or 25(b) by varying the conditions (including by adding or removing a condition).

Variation or cancellation on request

(3) If a person’s quota entitlement for a category for a quota year is subject to a condition under paragraph 18(b) or 25(b), the person may request the Secretary, in writing, to vary or remove the condition.

(4) If a person makes a request to vary or remove a condition under subsection (3), the Secretary may vary or remove the condition as requested.

(5) A person who holds a tariff rate quota certificate may request the Secretary, in writing, to vary or cancel the certificate.

(6) If a person makes a request to vary or cancel a tariff rate quota certificate under subsection (5), the Secretary may vary or cancel the certificate as requested.

Effect of cancellation of tariff rate quota certificate

(7) If a tariff rate quota certificate is cancelled under this section, the certificate is taken never to have been issued.

Notification of certain decisions

(8) The Secretary must give a person a written notice if the Secretary:

(a) varies or cancels, under subsection (1), the person’s quota entitlement for a category for a quota year or a tariff rate quota certificate issued to the person; or

(b) varies, under subsection (2), the conditions to which the person’s quota entitlement for a category for a quota year is subject; or

(9) The notice must state:

(a) the reasons for the decision; and

(b) if the decision is a decision referred to in paragraph (8)(a) or (b)—the day on which the variation or cancellation takes effect; and

Note: For review of decisions, see Part 7.

Part 7—Review of decisions

33 Application for reconsideration by Secretary of certain decisions

(1) This section applies to the following decisions (an initial decision):

(a) to impose, under paragraph 18(b) or 25(b), a condition on a person’s quota entitlement for a category for a quota year;

(b) not to allocate a quota entitlement for a category for a quota year to a person because of subsection 14(3) or 24(4);

(c) to vary or cancel, under subsection 32(1), a person’s quota entitlement for a category for a quota year or a tariff rate quota certificate issued to a person;

(d) to vary, under subsection 32(2), the conditions to which a person’s quota entitlement for a category for a quota year is subject;

(e) to refuse, under subsection 32(4) or (6), a request of a person.

(2) The person may apply to the Secretary to have the initial decision reconsidered.

(3) An application under subsection (1) must:

(a) be in writing; and

(b) set out the reasons for the application; and

(c) be lodged with the Secretary within 28 days after the person is given notice of the initial decision or within such further period as the Secretary allows.

34 Secretary to reconsider initial decision

(1) On receiving an application made under section 33, the Secretary:

(a) must reconsider the initial decision; and

(b) subject to subsections (2) to (5) of this section, may make any decision that he or she might have made in the first instance.

(2) If the initial decision was a decision:

(a) not to allocate a quota entitlement for a category to a person for a quota year because of subsection 14(3) or 24(4); or

(b) to cancel, under subsection 32(1), a person’s quota entitlement for a category for a quota year;

the Secretary may only set aside the initial decision if, at the time of setting aside that decision, the amount that is the difference between:

(d) the sum of the total quota entitlements of all persons for the category for the quota year;

is at least equal to the amount of the entitlement.

(3) If the initial decision was a decision to vary, under subsection 32(1), a person’s quota entitlement for a category for a quota year to reduce the amount of the entitlement, the Secretary may only set aside the initial decision if, at the time of setting aside that decision, the amount that is the difference between:

(a) the access amount for the category for the quota year; and

(b) the sum of the total quota entitlements of all persons for the category for the quota year;

is at least equal to the amount by which the entitlement was reduced.

(4) If the initial decision was a decision to vary, under subsection 32(1), a tariff rate quota certificate for a category for a quota year of a person to reduce the weight stated in the certificate, the Secretary may only set aside the initial decision if, at the time of setting aside that decision, the amount that is the difference between:

(a) the total shipped weight of quota goods of that category that has been exported by the person to the regulated market for the category in the quota year at a reduced tariff or special rate of duty; and

(b) the person’s total quota entitlement for the category for the quota year;

is at least equal to the amount by which the weight stated in the certificate was reduced.

(5) If the initial decision was a decision to refuse, under subsection 32(6), a request to vary a person’s tariff rate quota certificate for a category for a quota year to increase the weight stated in the certificate, the Secretary may only set aside the initial decision if, at the time of setting aside that decision, the amount that is the difference between:

(b) the person’s total quota entitlement for the category for the quota year;

is at least equal to the amount of the requested increase.

(6) If the Secretary makes a decision under subsection (1) to set aside the initial decision, the initial decision ceases to have effect.

(7) The Secretary must give the applicant written notice of the Secretary’s decision under subsection (1) within 45 days after the day on which the application was received.

(8) The notice must set out the reasons for the Secretary’s decision.

35 Review by the Administrative Appeals Tribunal

(1) Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Secretary made under section 34.

(2) If the initial decision was a decision:

(a) not to allocate a quota entitlement for a category to a person for a quota year because of subsection 14(3) or 24(4); or

(b) to cancel, under subsection 32(1), a person’s quota entitlement for a category for a quota year;

the Administrative Appeals Tribunal may only set aside the initial decision if, at the time of setting aside that decision, the amount that is the difference between:

(d) the sum of the total quota entitlements of all persons for the category for the quota year;

is at least equal to the amount of the entitlement.

(3) If the initial decision was a decision to vary, under subsection 32(1), a person’s quota entitlement for a category for a quota year to reduce the amount of the entitlement, the Administrative Appeals Tribunal may only set aside the initial decision if, at the time of setting aside that decision, the amount that is the difference between:

(a) the access amount for the category for the quota year; and

(b) the sum of the total quota entitlements of all persons for the category for the quota year;

is at least equal to the amount by which the entitlement was reduced.

(4) If the initial decision was a decision to vary, under subsection 32(1), a tariff rate quota certificate for a category for a quota year of a person to reduce the weight stated in the certificate, the Administrative Appeals Tribunal may only set aside the initial decision if, at the time of setting aside that decision, the amount that is the difference between:

(b) the person’s total quota entitlement for the category for the quota year;

is at least equal to the amount by which the weight stated in the certificate was reduced.

(5) If the initial decision was a decision to refuse, under subsection 32(6), a request to vary a person’s tariff rate quota certificate for a category for a quota year to increase the weight stated in the certificate, the Administrative Appeals Tribunal may only set aside the initial decision if, at the time of setting aside that decision, the amount that is the difference between:

(b) the person’s total quota entitlement for the category for the quota year;

is at least equal to the amount of the requested increase.

Part 8—Miscellaneous

36 Decisions made by computer

(1) The Secretary may arrange for the use, under the Secretary’s control, of computer programs for making decisions under this instrument.

(2) A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by the Secretary.

Part 9—Application and transitional provisions

37 Applications for annual quota made before commencement

(1) This section applies if, before the commencement of this instrument, a dairy manufacturer made an application under regulation 2.08 of the Dairy Produce Regulations 1986 for the allocation of annual quota for a category of dairy produce for the calendar year beginning on 1 January 2017.

(2) The application is taken to be an application made:

(a) under section 12 of this instrument for the allocation of annual entitlement for the category for the quota year beginning on 1 January 2017; and

(b) in the form referred to in paragraph (3)(a) of that section.

(3) A reference in the application to the amount of quota applied for is taken to be a reference to the amount of annual entitlement requested for the category for the quota year.

38 Requests for further information made before commencement

(1) This section applies if, before the commencement of this instrument:

(a) a person made an application under regulation 2.08 of the Dairy Produce Regulations 1986; and

(b) the Secretary asked the person to provide further information under regulation 2.09 of those Regulations.

(2) The request is taken to be a request made under section 13 of this instrument.

39 Penalties imposed in relation to surpluses for the 2016 calendar year or an earlier calendar year

(1) This section applies if:

(a) a penalty:

(i) was imposed on a dairy manufacturer under regulation 2.19 of the Dairy Produce Regulations 1986 because the dairy manufacturer had surplus quota for a category of dairy produce for the calendar year beginning on 1 January 2015 or an earlier calendar year (the surplus year); and

(ii) had not expired before the commencement of this instrument; or

(b) a penalty is imposed on a dairy manufacturer under regulation 2.19 of the Dairy Produce Regulations 1986 because the dairy manufacturer has surplus quota for a category of dairy produce for the calendar year beginning on 1 January 2016 (the surplus year).

(2) Subject to subsection (3), the penalty is imposed in relation to the next allocation under paragraph 14(2)(b) of this instrument to the dairy manufacturer of annual entitlement for the category for a quota year.

(3) The penalty expires:

(a) after the next allocation under paragraph 14(2)(a) or (b) of this instrument to the dairy manufacturer of annual entitlement for the category for a quota year; or

(b) if the next allocation does not occur within the period of 5 years after the end of the surplus year—at the end of that period.

40 Repeal of this Part

This Part is repealed at the start of 1 January 2022.

Export Control (Dairy Produce Tariff Rate Quotas) Order 2016

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