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CUSTOMS REGULATIONS (AMENDMENT) 1994 NO. 435EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 435
Issued by the Authority of the Minister for Small Business, Customs and Construction
Customs Act 1901
Customs Regulations (Amendment)
Section 270 of the Customs Act 1901 (the Act) provides in part that:
"(1) The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed ... for giving effect to this Act or for the conduct of business relating to the Customs . ..."
The purpose of these regulations is to amend the Customs Regulations (the Regulations) as a result of amendments to Australia's anti-dumping and countervailing regimes effected by the Customs Legislation (World Trade Organization Amendments) Act 1994 (Customs WTO Act). This Act is one of a package of acts that amend Australian law to enable Australia to meet its obligations under agreements negotiated in the Uruguay Round of the General Agreement on Tariffs and Trade.
Section 8 of the Customs WTO Act introduces a new section 269TAAD into the Act which sets out the circumstances under which the price paid for like goods is not to be taken to have been paid in the ordinary course of trade. This is one element relevant to the assessment of the normal value of goods exported to Australia for the purposes of a dumping inquiry. This occurs if the goods are sold in the country of export at a price that is less than the cost of such goods and it is unlikely that the seller would be able to recover the cost of such goods in a reasonable period.
New subsection 269TAAD(4) provides that the cost of goods is worked out by adding the amounts determined by the Minister to be the costs of production or manufacture of the goods and the administrative, selling and general costs associated with the sale of the goods in the country of export. New subsection 269TAAD(5) provides that the amounts determined for the purposes of subsection (4) must be worked out in such manner, and taking account of such factors, as the regulations provide.
Regulation 3 inserts new regulation 180 which sets out the manner of working out the amounts, and the factors to be taken into account, for the purposes of subsection 269TAAD(4) and reflects the provisions of Article 22.214.171.124. of the Agreement on Implementation of Article IV of the General Agreement on Tariffs and Trade 1994 (the Dumping Agreement).
Costs are to be calculated on the basis of records that are kept in accordance with generally accepted accounting principles of the country of export and that reasonably reflect costs associated with the production, or manufacture, and sale of the goods (new subregulation 180(2)). Information concerning the allocation of costs must also be taken into account, and where information on the allocation of costs is provided by the exporter or other seller of the goods, that allocation must have been historically used by the exporter or seller (new subregulation 180(3)). Costs are to be adjusted to take account of non-recurring items of costs that benefit current and/or future production and costs associated with start-up operations (new subregulations 180(4) and (5)).
New subregulation 180(6) provides that where the Minister is satisfied that the cost of production or manufacture is not able to be identified under subregulations 180(2) to (5) because sufficient information has not been furnished or is not available, the cost is the amount determined by the Minister having regard to all relevant information. A similar provision with respect to administration, selling and general costs associated with the sale of the goods is contained in new regulation 181.
Regulation 3 also inserts new regulation 181 which reflects the provisions of Article 2.2.2 of the Dumping Agreement. New regulation 181 contains additional factors and methods that are relevant to the calculation of administrative, selling and general costs associated with the sale of the goods. These costs are to be calculated using data relating to the production, or manufacture, and sale of like goods by the exporter or other seller in the ordinary course of trade (new subregulation 181(2)). If this method is unable to be used, alternative methods of calculation are prescribed (new subregulation 181(3)). New subregulation 181(4) provides that where the Minister is satisfied that the costs associated with the sale of the goods is not able to be identified under new subregulations 181(2) and (3) because sufficient information has not been furnished or is not available, the cost is the amount determined by the Minister having regard to all relevant information.
Section 10 of the Customs WTO Act also amends section 269TAC of the Act which governs the calculation of the normal value of goods for the purposes of a dumping inquiry. One method of calculating normal value is to construct a value based on specified amounts, which includes the profit on the sale of goods. Section 10 inserts new subsection 269TAC(5B) into the Act which provides that the amount determined to be the profit of the sale under these subparagraphs must be worked out in such manner, and taking into account such factors, as the regulations provide for that purpose.
The provisions of new subregulations 18 1 (1) to (4) are also expressed to apply to the calculation of profit under new subsection 269TAC(5B). In addition, new subregulation 181(5) limits the amount of profit calculated under new subregulation 181(4) to the amount normally realised by other exporters or producers on sales of goods of the same general category in the domestic market of the country of export.
The Minister may disregard any information that he considers unreliable for the purposes of new regulations 180 and 181 (new subregulations 180(8) and 181(6) respectively).
Words or expressions that are defined in Part XVB of the Act and used in the new regulations 180 and 181 have the same meaning given by that Part (new subregulations 180(8) and 181(7) respectively).
Proposed regulation 4 effects a technical amendment to regulation 183AB of the Regulations to reflect the amendment to subsection 269TC(4) of the Act by paragraph 16(d) of the Customs WTO Act. When the Comptroller does not reject a dumping application, subsection 269TC(4) requires the Comptroller to publish a notice in the Gazette setting out, amongst other things, the prescribed time within which the Comptroller will make a preliminary finding. Regulation 183AB of the Regulations prescribes the time within which a preliminary finding must be made. The Customs WTO Act changes the point from when this time period commences from the time when the notice is published to the time when an investigation is initiated. Proposed regulation 4 effects a corresponding amendment to regulation 183AB to provide that the prescribed time limit now commences upon the initiation of the investigation.
The regulations commence on the day on which the principal amendments in Part 2 of the Customs WTO Act commence (proposed regulation 1 refers).