Dairy Produce Amendment Regulations 2004 (No. 1)1

Statutory Rules 2004 No. 2532

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Dairy Produce Act 1986.

Dated 19 August 2004

P. M. JEFFERY

Governor-General

By His Excellency’s Command

WARREN TRUSS

Minister for Agriculture, Fisheries and Forestry

1 Name of Regulations

  These Regulations are the Dairy Produce Amendment Regulations 2004 (No. 1).

2 Commencement

  These Regulations commence on the date of their notification in the Gazette.

3 Amendment of Dairy Produce Regulations 1986

  Schedule 1 amends the Dairy Produce Regulations 1986.

Schedule 1 Amendments

(regulation 3)

[1] Regulation 2.02, note

omit

[2] Paragraph 2.03 (b)

substitute

 (b) dairy produce described in Parts 3 and 4 of Schedule 1A.

[3] Regulation 2.05

after

to be exported

insert

to the European Union

[4] Subregulation 2.14 (2)

substitute

 (2) The application fee payable by an exporter for each kilogram of regulated dairy produce allocated, under regulation 2.12, to the exporter for the entitlement year to which the application relates is:

 (a) for 2004 — 0.3 of a cent; and

 (b) for a year after 2004 — 0.7 of a cent.

[5] Division 2.3, heading

substitute

Division 2.3 Export of regulated dairy produce to the US, other than under the FTA

[6] Regulation 2.18

substitute

2.18 Application of Division 2.3

  This Division applies in relation to consignments of eligible produce that are to be exported to the United States of America for the year 2004 or any year after that, other than produce that is mentioned in Part 4 of Schedule 1A.

[7] Subregulation 2.27 (2)

substitute

 (2) The application fee payable by an exporter is for each kilogram of regulated dairy produce allocated, under regulation 2.25, to the exporter for the entitlement year to which the application relates is:

 (a) for 2004 — 0.3 of a cent; and

 (b) for a year after 2004 — 0.7 of a cent.

[8] After Division 2.3

insert

Division 2.3A Export of regulated dairy produce to the US under the FTA

Subdivision 2.3A.1 General

2.30A Application of Division 2.3A

  This Division applies in relation to consignments of dairy produce, mentioned in Part 4 of Schedule 1A, that are to be imported into the US without tariff.

Note   For this Part, products are imported into the US under the terms of the free trade agreement.

2.30B Definitions for Division 2.3A

access amount, for an FTA category of dairy produce for a year, is the maximum amount of the produce that, under the FTA, may be exported in the year.

allocation of quota means an authorisation, given to a dairy manufacturer, setting out the maximum amount of an FTA category of dairy produce that the manufacturer is entitled to export under this Division.

category with a set-aside means an FTA category of dairy produce mentioned in column 2 of an item in Table 2.30C, in which the set-aside percentage set out in column 5 of the item is more than zero.

dairy manufacturer means a person who:

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

 (b) purchases dairy produce and:

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

 (ii) repackages it.

EXDOC means the electronic documentation system maintained by the Australian Quarantine and Inspection Service for the control and issue of export health certificates.

export means export to the US under this Division.

FTA or free trade agreement means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.

FTA category of dairy produce means a category which, under the terms of the FTA, may be imported into the US free of tariff.

ice cream and ODP category means the ice cream
sub-category of the FTA category Creams and Ice Cream and the FTA category Other Dairy Products.

minimum allocation, for an FTA category of dairy produce mentioned in column 2 of an item in Table 2.30C, means the amount set out in column 4 of the item.

US means the United States of America.

2.30C Categories of dairy produce

  For an FTA category of dairy produce mentioned in an item in column 2 of Table 2.30C, the access amount for 2005 is the amount set out in column 3 of the item.

Table 2.30C Categories

Subdivision 2.3A.2 Quota allocation for categories other than ice cream and ODP category — 2005 only

2.30D Application of Subdivision 2.3A.2

  Subdivision 2.3A.2 applies in relation to the allocation of quota for each category of dairy produce, other than produce in the ice cream and ODP category, for 2005.

2.30E Definitions for Subdivision 2.3A.2

  disadvantaged applicant has the meaning given by regulation 2.30H.

primary applicant and secondary applicant have the respective meanings given in regulation 2.30J.

2.30F Meaning of 02/03 export amount

 (1) For each FTA category of dairy produce that was exported in 2002 and 2003, the 02/03 export amount of the category is calculated by:

 (a) determining, from data in EXDOC, the sum of:

 (i) the total amount of produce in the category exported during 2002 and 2003 by all applicants under regulation 2.30G, other than a disadvantaged applicant; and

 (ii) twice the total amount of produce in the category exported by all disadvantaged applicants during the year nominated by the applicant under subregulation 2.30G (5); and

 (b) subtracting, from this amount, the total amount of quota allocated in the equivalent category exported under Divisions 2.2 and 2.3 in 2002 and 2003.

 (2) For paragraph (1) (b), a category mentioned in:

 (a) column 2 of an item in the following table, exported under Division 2.2 in 2002 and 2003; or

 (b) column 3 of an item in the table, exported under Division 2.3 in 2002 and 2003;

is the equivalent of the FTA category mentioned in column 4 of the item.

Table Equivalents to FTA categories

2.30G Applications for allocation of quota

 (1) A dairy manufacturer may apply to the Secretary for an allocation of quota for 2005.

 (2) An application must:

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

 (b) include information showing the amount of dairy produce of each FTA category produced by the manufacturer in 2002 and 2003.

 (3) For paragraph (2) (b), dairy produce that is repackaged by a manufacturer is taken not to have been produced by the manufacturer.

 (4) It is a condition of an application that, upon request, the applicant will give the Secretary access to records so that the Secretary can confirm the accuracy of the information given for paragraph (2) (b).

 (5) If an applicant believes that, because the amounts of the applicant’s production in 2002 or 2003 were significantly different from one another, the applicant would be disadvantaged if both years were used to make the calculations for subregulation 2.30I (2) or (3), the applicant may also include in the application a request that only the applicant’s production for a nominated year be taken into account when calculating quota for each category of produce.

2.30H Disadvantaged applicants

  If:

 (a) an applicant under regulation 2.30G makes a request under subregulation 2.30G (5); and

 (b) in 40% or more of the FTA categories of dairy produce produced by the applicant in 2003, the amount produced:

 (i) exceeds the amounts produced in 2002 by 25% or more; or

 (ii) is less than the amounts produced in 2002 by 25% or more;

then:

 (c) the applicant is a disadvantaged applicant; and

 (d) if quota is allocated to the applicant, the amounts of the applicant’s export and production for the nominated year are used to calculate quota allocations for all categories.

2.30I Preliminary allocations of quota

 (1) In this regulation:

AA, of dairy produce in an FTA category, means the access amount of that category for 2005.

AEA (or applicant’s export amount), of dairy produce in an FTA category, means the amount of produce of the category exported by the applicant (other than produce exported under Divisions 2.2 and 2.3) during 2002 and 2003, calculated using data from EXDOC.

AEY (or applicant’s exports for year), of dairy produce in an FTA category, means the amount of produce of the category exported by the applicant (other than produce exported under Divisions 2.2 and 2.3) in the year nominated by the applicant under subregulation 2.30G (5), calculated using data from EXDOC.

APA (or applicant’s production amount), of dairy produce in an FTA category, means the amount of produce of the category produced by the applicant during 2002 and 2003, calculated from the data given by the applicant under subregulation 2.30G (5).

APY (or applicant’s production for year), of dairy produce in an FTA category, means the amount of the category of dairy produce produced by the applicant in the year nominated by the applicant under subregulation 2.30G (5).

TPA (or total production amount), of dairy produce in an FTA category, means the sum of:

 (a) the total amount of produce of the category that was produced by all applicants, other than disadvantaged applicants, in 2002 and 2003, calculated from the data given by the applicants under paragraph 2.30G (2) (b); and

 (b) twice the total amount of produce in the category produced by all disadvantaged applicants during the year nominated by the applicant under subregulation 2.30G (5).

 (2) The preliminary quota allocation, to an applicant that is not a disadvantaged applicant, for a category with a set-aside is:

 (3) The preliminary quota allocation, to a disadvantaged applicant, for a category with a set-aside is:

2.30J Identifying primary and secondary applicants

 (1) If the applicant’s preliminary quota allocation for a category with a set-aside is at least half of the minimum allocation for the produce, the applicant is a primary applicant for that category.

 (2) An applicant that is not a primary applicant is a secondary applicant for the category.

2.30K Final quota allocations to primary applicants for a category with a set-aside

 (1) The following steps show how to work out, for each primary applicant, the final quota allocation for a category with a
set-aside.

  Step 1.   For each primary applicant, round the amount of the preliminary quota allocation, calculated under regulation 2.30I, so it is divisible by the amount of the minimum allocation with no remainder, 50% of an allocation being rounded up.

  Step 2.   If the sum of the rounded amounts calculated in Step 1 is less than 95% of the access amount for the category, subtract the total of the sum of the rounded amounts from 95% of the access amount, giving the additional amount.

  Step 3.   Allocate extra quota to the primary applicants in proportion to each applicant’s preliminary quota allocation, so that the sum of the extra quota allocations equals the additional amount.

  Step 4.   If the total of the rounded amounts calculated in Step 1 is more than 95% of the access amount for the category, subtract 95% of the access amount from the total of the rounded amounts, giving the withdrawal amount.

  Step 5.   Withdraw quota, from the primary applicants whose preliminary quota allocations exceed the minimum amount, in proportion to each of these applicants’ preliminary quota allocation so that the sum of the withdrawn quota allocations equals the withdrawal amount.

 (2) The final quota allocation for each primary applicant is:

 (a) if the sum of the rounded amounts calculated in Step 1 equals 95% of the access amount for the category — the amount resulting after Step 1; or

 (b) if an additional amount is calculated — the amount resulting after Step 3, rounded to the nearest tonne, 500kg being rounded up; or

 (c) if a withdrawal amount is calculated — the amount resulting after Step 5, rounded to the nearest tonne, 500kg being rounded up.

2.30L Final quota allocations — secondary applicants for a category with a set-aside

  The following steps show how to work out, for secondary applicants, the final quota allocation for a category with a
set-aside.

  Step 1.   Divide 5% of the access amount by the number of secondary applicants.

  Step 2.   If the result of Step 1 is equal to or less than the minimum allocation for the category, the final quota allocation for each applicant is an amount equal to the result of Step 1.

  Step 3.   If the result of Step 1 is an amount greater than the minimum allocation for the category:

 (a) the final quota allocation for each applicant is an amount equal to the minimum allocation; and

 (b) the remaining amount is allocated equally between all applicants whose final quota allocation is equal to or less than:

 (i) 5% of the access amount; or

 (ii) 4 times the minimum allocation.

2.30M Final quota allocations — Non-fat Dried Milk Powder and Skim Milk Powder

 (1) The following steps show how to work out the final quota allocation to an applicant for the FTA categories Non-fat Dried Milk Powder and Skim Milk Powder.

  Step 1.   For each applicant, round the amount of the preliminary quota allocation calculated under regulation 2.30I so it is divisible by the amount of the minimum allocation with no remainder, 50% of a minimum allocation being rounded up.

  Step 2.   If the sum of the rounded amounts calculated in Step 1 is less than the access amount for the category, subtract the total of the rounded amounts from the access amount, giving the additional amount.

  Step 3.   Allocate extra quota to all the applicants in proportion to each applicant’s preliminary quota allocation so that the extra quota allocations equal the additional amount.

  Step 4.   If the total of the rounded amounts calculated in Step 1 is more than the access amount for the category, subtract the access amount from the total of the rounded amounts, giving the withdrawal amount.

  Step 5.   Withdraw quota from each applicant whose allocation exceeds the minimum allocation, in proportion to each applicant’s preliminary quota allocation, so that the sum of the withdrawn quota allocations equals the withdrawal amount.

 (2) The final quota allocation for each applicant is:

 (a) if the sum of the rounded amounts calculated in Step 1 equals the access amount for the category — the amount resulting after Step 1; or

 (b) if an additional amount is calculated — the amount resulting after Step 3, rounded to the nearest tonne, 500kg being rounded up; or

 (c) if a withdrawal amount is calculated — the amount resulting after Step 5, rounded to the nearest tonne, 500kg being rounded up.

2.30N Final quota allocations — cream

 (1) A final quota allocation for the FTA category Cream is granted subject to the condition that, if the holder:

 (a) has not obtained US registration of approved premises to supply cream by the end of 30 June 2005; or

 (b) is not able to present evidence that registration will be granted before 23 August 2005;

the allocation is withdrawn.

 (2) Any quota allocation withdrawn under subregulation (1) must be allocated among the other quota holders in proportion to the amount of quota held by each.

2.30O Secretary to tell applicant about amount of quota

  If the Secretary grants an allocation of quota to an applicant, the Secretary must give the applicant a statement setting out the amount of the quota.

Subdivision 2.3A.3 Quota allocation for categories other than ice cream and ODP category — 2006 and subsequent years

2.30P Application of Subdivision 2.3A.3

  Subdivision 2.3A.3 applies in relation to the allocation of quota for each category, other than produce in the ice cream and ODP category, for 2006 and each subsequent year.

2.30Q Applications for allocation of quota

  A dairy manufacturer may apply to the Secretary, in a form approved by the Secretary, for an allocation of quota for 2006 and each subsequent year.

2.30R Allocation of quota

 (1) In this regulation:

new entrant, in relation to a category under this Subdivision and a year, means a dairy manufacturer who had not held an allocation of quota for the category before the year.

primary quota holder, in relation to a category under this Subdivision and a year, means a person who, in the previous year, held an allocation of quota for the category that was greater than:

 (a) 5% of the access amount for the category; or

 (b) 4 times the minimum amount for the category.

secondary quota holder, in relation to a category under this Subdivision and a year, means a person, other than a primary quota holder, who, in the previous year, held an allocation of quota for the category.

total forfeits means the sum of the amounts of quota forfeited by all quota holders under subregulations 2.30Z (6) and 2.30ZA (2).

Note   Although only dairy manufacturers are entitled to apply for an allocation of quota, other persons, such as exporters, may acquire quota by a transfer under regulation 2.30Z.

 (2) For this regulation, the additional access amount for a category under this Subdivision for the year is:

  where:

percentage increase is the yearly percentage increase for the category under the terms of the FTA.

PAA (or previous access amount) is the access amount of the category of dairy produce for the previous year.

 (3) The following steps show how to work out, for each primary quota holder, secondary quota holder and new entrant, the quota allocation for each category under this Subdivision.

  Step 1.   Allocate to each primary quota holder and secondary quota holder an amount equal to the amount of quota allocated to the holder for the previous year, taking into account any amounts of quota that were:

 (a) forfeited, under subregulation 2.30Z (6) or 2.30ZA (2) or both, by the holder in that year; and

 (b) transferred to or from the holder, under regulation 2.30Z.

  Step 2.   Allocate to each primary quota holder and secondary quota holder an amount of quota in proportion to the holder’s allocation under Step 1, so that the sum of the additional amounts equals the sum of:

 (a) half of the additional access amount; and

 (b) total forfeits.

  Step 3.   Allocate an equal amount to each new entrant and secondary quota holder so that the sum of the allocations for this step equals half of the additional access amount.

Subdivision 2.3A.4 Export approvals for ice cream and ODP category

2.30S Application of Subdivision 2.3A.4

  Subdivision 2.3A.4 applies in relation to export approvals for dairy produce in the ice cream and ODP category that are to be granted in 2005 and each subsequent year.

2.30T Access amounts

 (1) For the FTA category Other Dairy Products, the access amount for dairy produce for 2005 is divided into the following
sub-categories:

 (a) for produce that corresponds to any US Harmonised Tariff Code set out in column 2 of Part 1 of Schedule 1B — 1 350 tonnes;

 (b) for produce that corresponds to any US Harmonised Tariff Code set out in column 2 of Part 2 of Schedule 1B — 150 tonnes.

 (2) The access amounts for 2006 and each subsequent year for dairy produce in the ice cream and ODP category are calculated by increasing the amounts for the previous year by the appropriate percentage specified for the category in the FTA.

2.30U Applications for export approvals

 (1) In this regulation:

application day means:

 (a) 1 November in any year; or

 (b) if 1 November in a year is not a working day — the next working day after 1 November.

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

 (2) A person may apply to the Secretary for an export approval under this Subdivision.

 (3) An application must:

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

 (b) be for approval to export a specified amount of the category of produce; and

 (c) specify the day or days on which the applicant intends to export the produce.

 (4) Applications for approval to export in a particular year may be made on or after the application day in the previous year.

 (5) The application must include evidence that the applicant’s consignments of produce will be imported into the US.

 (6) For subregulation (5), evidence includes the following:

 (a) a copy of the agreement, or the relevant part of the agreement, under which the produce will be imported into the US;

 (b) a statement describing:

 (i) an agreement that has been made (including an agreement that is subject to quota being available); or

 (ii) an offer to enter an agreement of a kind mentioned in subparagraph (i);

  even if confidential matters are not included in the statement.

2.30V Export approvals

 (1) The Secretary must deal with applications made under regulation 2.30U on a first-come-first-served basis.

 (2) However, if, on the application day, applications are made for more than the access amount, then, subject to subregulation (3):

 (a) each applicant receives an approval to export an amount that is equal to the access amount divided by the number of applicants; or

 (b) if distributing the amount in accordance with paragraph (a) would lead to an applicant (an excess-quota applicant) being approved to export a greater amount than the applicant applied for:

 (i) each excess-quota applicant receives approval to export the amount that the applicant applied for; and

 (ii) each other applicant receives approval to export an amount that is equal to the access amount remaining after the distribution mentioned in subparagraph (i), divided by the number of other applicants.

 (3) If a person applies, under this Subdivision, for an export approval, the Secretary must grant the approval unless the grant would result in:

 (a) the applicant being approved to export more than a third of the access amount for the category; or

 (b) the total amount of produce approved for export exceeding the access amount for the category.

 (4) If the Secretary grants an export approval to an applicant, he or she must give the applicant a quota certificate as evidence of the approval.

2.30W Forfeiture of approval

 (1) Subregulation (2) applies in relation to an approval to export an amount of dairy produce under this Subdivision if the holder of the approval fails to export at least 95% of the amount by:

 (a) the day or days specified for paragraph 2.30U (3) (c) for the export of the produce; or

 (b) if the export is delayed for a reason or reasons beyond the control of the holder — no more than 28 days after each day specified for the export.

 (2) The approval for the amount not exported is withdrawn.

Subdivision 2.3A.5 Miscellaneous

2.30X Application for quota certificate — categories other than ice cream and ODP category

 (1) The holder of unused quota for dairy produce other than produce in the ice cream and ODP category may apply to the Secretary for a quota certificate in respect of any amount of the unused quota.

 (2) If the Secretary approves the application, the Secretary must give the applicant a quota certificate as evidence of the approval.

2.30Y Export of dairy products

  A quota certificate issued under subregulation 2.30V (4) or 2.30X (2) in respect of an FTA category of dairy produce is evidence of an approval to export the produce.

Note   Dairy produce without a certificate will not be imported into the US free of tariff.

2.30Z Transfer of quota

 (1) The holder of quota for an FTA category of dairy produce (the transferor) may transfer some or all of the quota to another person (the transferee).

 (2) The terms of a transfer agreement must provide that the transfer:

 (a) is permanent; or

 (b) is to revert to the transferor at the end of the year for which the transfer is made.

 (3) A transfer is not validly made unless the transferor sends the Secretary a notice that includes the following:

 (a) the name of the transferor and the transferee;

 (b) the amount of quota being transferred;

 (c) whether the transfer is permanent, or reverts to transferor at the end of the year.

 (4) It is not a transfer of quota if a holder authorises an agent to export dairy produce on behalf of the holder.

 (5) If a transferor transfers quota to the same transferee for 2 consecutive years, the transfer becomes permanent at the start of the third year.

 (6) If a transferor transfers quota to different transferees in 2 consecutive years, at the start of the third year the transferor forfeits the quota.

Note   Quota forfeited under subregulation (6) becomes available to other applicants in the third year: see subregulation 2.30R (3).

2.30ZA Forfeiture of quota

 (1) This regulation applies in relation to quota for dairy produce other than produce in the ice cream and ODP category, if the holder fails to export 95% of the allocated amount for 2 consecutive years, other than 2005 and 2006.

 (2) The holder forfeits an amount of quota that is:

  where:

first year’s exports is the amount of the category exported by the holder in the first year.

old quota is the holder’s quota for the category for the second year, taking into account any transfers made by the holder during the year.

second year’s exports is the amount of the category exported by the holder in the second year.

2.30ZB Quota may be withdrawn

 (1) The Secretary may, on a day specified by the Secretary (the
re-allocation day), withdraw quota for a category with a set-aside if:

 (a) before 23 August in the year for which the quota was allocated, the holder of the quota gives the Secretary a request in writing to withdraw the quota; or

 (b) on or after 23 August in that year, the holder does not tell the Secretary, in writing, how the holder intends to deal with the holder’s unused quota, if any.

 (2) The Secretary may re-allocate any withdrawn quota (the extra quota) to a person who applies for the quota, if the applicant is able to show that the quota will be used in that year.

 (3) The Secretary must deal with applications under subregulation (2) on a first-come-first-served basis.

 (4) However, if, on the re-allocation day, applications are made for more than the extra quota:

 (a) each applicant is granted quota that is equal to the extra quota divided by the number of applicants; or

 (b) if distributing the extra quota in accordance with paragraph (a) would lead to an applicant (an excess-quota applicant) being granted more quota than the applicant applied for:

 (i) each excess-quota applicant receives the amount of quota that the applicant applied for; and

 (ii) each other applicant receives quota that is equal to the extra quota amount remaining after the distribution mentioned in subparagraph (i), divided by the number of other applicants.

2.30ZC Fees (Act, s 54)

  For paragraph 54 (2) (b) of the Act, the fee for an application to export dairy produce under this Division is 0.7 of a cent for each kilogram of dairy produce that the applicant is entitled to export under a quota certificate given under this Division.

[9] Schedule 1A, after Part 3

insert

Part 4 Dairy produce for the US under the FTA

Schedule 1B 

Subregulation 2.30T (1)

Part 1 Category A produce

Part 2 Category B produce

1. These Regulations amend Statutory Rules 1986 No. 166, as amended by 1986 No. 237; 1987 Nos. 42 and 263; 1990 Nos. 384, 424 and 433; 1995 Nos. 209 and 310; 2003 Nos. 135 and 276.

2. Notified in the Commonwealth of Australia Gazette on 26 August 2004.