Customs Regulations (Amendment) 1991 No. 139
EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 139
CUSTOMS ACT 1901
CUSTOMS REGULATIONS (AMENDMENT)
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR INDUSTRY, TECHNOLOGY AND COMMERCE
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 ..."
Background
Section 269TC of the Act provides that the Comptroller shall, before the expiration of a period of 55 days, or, if another period is prescribed by the regulations for the purpose, before the expiration of that other period, after lodgement of an application for anti-dumping action make a prima facie finding as to whether or not:
(a) the goods the subject of the application were being dumped or subsidised; and
(b) as a result of that dumping or subsidisation, material injury was being caused or threatened to the Australian industry producing like goods.
If the prima facie decision is positive, the Australian Customs Service proceeds with its investigation of the complaint. The Comptroller then reaches a "preliminary finding". Subsection 269TC(4) requires that the preliminary finding must be made within 120 days or, such other period as is prescribed by the regulations.
The Government announced as part of the 12 March Industry Statement certain proposed reforms to the current dumping regime, including the shortening of the period taken to deal with anti-dumping and subsidisation complaints by Australian Industry, so that in most cases an overall reduction of 40 days in the time taken to reach a preliminary finding will be achieved.
• It is at the conclusion of the preliminary finding stage that provisional measures can be imposed to address any injury to local industry by the dumped imports.
The proposed Statutory Rules thus amend the Customs Regulations to give effect to the Government's announcement by prescribing reduced time periods in respect of both the prima facie stage and preliminary finding stage of a dumping or subsidisation inquiry. The reduced time period in each case is 20 days.
Details of the amendments are as follows;
1) Amendments
Regulation 1.1 is a formal machinery provision which provides that the Customs Regulations are amended as set out in these Regulations.
2) Application
Regulation 2.1 provides that these Regulations apply in relation to dumping applications lodged on or after 1 March 1991, being the date for reduced processing times announced as part of the 12 March Industry Statement.
• Since the amendments confer a benefit in reducing the time taken to process a dumping applicatipn, they do not offend the prohibition against retrospectivity in subsection 48(2) of the Acts Interpretation Act 1901.
3) New regulations 183AA and 183AB
Regulation 3.1 inserts new regulations 183AA and 183AB into the Customs Regulations to prescribe:
- the time for consideration of applications under subsection 269TB(1) or (2) of the Act (new regulation 183AA); and
- the time for making a preliminary finding under section 269TD of the Act (new regulation 183AB).
Details of the proposed new regulations are as follows:
Anti-dumping: time for consideration of applications under subsection 269TB(1) or (2) of the Act
new regulation 183AA prescribes a period of 35 days for the purposes of subsection 269TC(1), within which the Comptroller must make a prima facie finding in relation to an application by a person under subsection 269TB(1) of the Act for publication of a dumping duty notice or countervailing duty notice (subregulation (1)).
Subregulation (2) prescribes the same period in respect of prima facie findings in relation to an application by the government of a country under subsection 269TB(2) of the Act.
• This gives effect to the Government's decision to reduce the time taken at the first stage of the dumping process, the prima facie stage, from 55 days to 35 days.
Anti-dumping: time for making preliminary finding under section 269TD of the Act
new regulation 183AB prescribes a period of 100 days for the purposes of paragraph 269TC(4)(c) of the Act, within which the Comptroller must make a preliminary finding under section 269TD of the Act, as to whether or not there are sufficient grounds for the imposition of dumping or countervailing duties..
• This stage of the dumping process proceeds provided the application under subsection 269TB(1) or (2) for publication of a dumping duty notice or countervailing duty notice has not been rejected by the Comptroller on the ground that a prima facie case of dumping has not been made out . (subregulation (1)).
• The general reduction in this time period, from 120 days to 100 days, is similar to the prima-facie stage time reduction, and completes the total 40 day reduction in the time taken to reach a preliminary finding.
• It is at the conclusion of this preliminary finding stage that provisional dumping relief, in the form of securities, may be taken to prevent injury to the local industry from the dumped imports.
• The standard period of 100 days prescribed in subregulation (1) may be extended to the current 120 days if the Comptroller is of the opinion that more than 100 days will be needed to conclude the investigation and make the preliminary finding (subregulation (2)).
However, in forming that opinion the Comptroller must have regard to all the circumstances of the case, and in particular to the 4 matters specified in subregulation (3); namely:
(a) the complexity, or novelty, of the issues to be considered;
(b) the variety of goods to be considered;
(c) the number of persons whose activities must be investigated;
(d) the difficulty of obtaining evidence.
The time period cannot, in any case, extend beyond the 120 days envisaged by subregulation (3), and, if the longer period is to be taken, it must be advised at the commencement of the investigation on the ground that a prima facie case of dumping has been made out.