Customs (Hong Kong Rules of Origin) Regulations 2019
I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.
Dated 12 December 2019
David Hurley
Governor‑General
By His Excellency’s Command
Jason Wood
Assistant Minister for Customs, Community Safety and Multicultural Affairs Parliamentary Secretary to the Minister for Home Affairs
Contents
Part 1—Preliminary
1 Name
2 Commencement
3 Authority
4 Definitions
Part 2—Tariff change requirement
5 Change in tariff classification requirement for non‑originating materials
Part 3—Regional value content requirement
6 Regional value content requirement
Part 4—Determination of value
7 Value of goods that are non‑originating materials
8 Value of accessories, spare parts, tools or instructional or other information materials
9 Value of packaging material and container
Part 5—Record keeping obligations
10 Exportation of goods to Hong Kong, China—record keeping by exporter who is not the producer of the goods
11 Exportation of goods to Hong Kong, China—record keeping by the producer of the goods
Part 1—Preliminary
1 Name
This instrument is the Customs (Hong Kong Rules of Origin) Regulations 2019.
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
The whole of this instrument At the same time as Schedule 3 to the Customs Amendment (Growing Australian Export Opportunities Across the Asia‑Pacific) Act 2019 commences. 17 January 2020
Note: This table relates only to the provisions of this instrument as originally made.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 the Customs Act 1901.
4 Definitions
In this instrument:
Act means the Customs Act 1901.
Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 means the Agreement of that name set out in Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Note: The Marrakesh Agreement Establishing the World Trade Organization is in Australian Treaty Series 1995 No. 8 ([1995] ATS 8) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Area of Australia has the meaning given by section 153ZPB of the Act.
Area of Hong Kong, China has the meaning given by section 153ZPB of the Act.
Australian originating goods has the meaning given by section 153ZPB of the Act.
Declaration of Origin has the meaning given by section 153ZPB of the Act.
Harmonized System has the meaning given by section 153ZPB of the Act.
non‑originating materials has the meaning given by section 153ZPB of the Act.
originating materials has the meaning given by section 153ZPB of the Act.
production has the meaning given by section 153ZPB of the Act.
Part 2—Tariff change requirement
5 Change in tariff classification requirement for non‑originating materials
For the purposes of subsection 153ZPE(3) of the Act, a non‑originating material used in the production of goods that does not satisfy a particular change in tariff classification is taken to satisfy the change in tariff classification if:
(a) it was produced entirely in the Area of Hong Kong, China, or entirely in the Area of Hong Kong, China and the Area of Australia, from other non‑originating materials; and
(b) each of those other non‑originating materials satisfies the change in tariff classification, including by one or more applications of this section.
Part 3—Regional value content requirement
6 Regional value content requirement
(1) For the purposes of subsection 153ZPE(6) of the Act, the regional value content of goods is worked out using the formula:
customs value means the customs value of the goods worked out under Division 2 of Part VIII of the Act.
value of non‑originating materials means the value, worked out under Part 4, of the non‑originating materials that are used in the production of the goods.
(2) Regional value content must be expressed as a percentage.
Part 4—Determination of value
7 Value of goods that are non‑originating materials
(1) For the purposes of subsection 153ZPB(2) of the Act, the value of non‑originating materials used in the production of goods is:
(a) for non‑originating materials imported into the Area of Hong Kong, China by the producer of the goods—the value of the materials worked out in accordance with the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994; or
(b) for non‑originating materials acquired in the Area of Hong Kong, China:
(i) the price paid or payable for the materials by the producer of the goods; or
(ii) the value of those materials worked out under paragraph (a) on the assumption that those materials had been imported into the Area of Hong Kong, China by the producer of the goods; or
(iii) the earliest ascertainable price paid or payable for the materials in the Area of Hong Kong, China.
(2) For the purposes of paragraph (1)(a), in working out the value of particular non‑originating materials, the costs incurred in the international shipment of the materials must be included.
(3) In working out the value of particular non‑originating materials under subsection (1), the following may be deducted:
(a) the costs of freight, insurance, packing and all other costs incurred in transporting the materials within the Area of Hong Kong, China to the location of the producer of the goods;
(b) duties, taxes and customs brokerage fees on the materials that:
(i) have been paid in either or both of the Area of Hong Kong, China and the Area of Australia; and
(ii) have not been waived or refunded; and
(iii) are not refundable or otherwise recoverable;
including any credit against duties or taxes that have been paid or that are payable;
(c) the costs of waste and spoilage resulting from the use of the materials in the production of goods, reduced by the value of reusable scrap or by‑products;
(d) the costs of processing the materials in either or both of the Area of Hong Kong, China and the Area of Australia;
(e) the costs of originating materials used in the production of the non‑originating materials in either or both of the Area of Hong Kong, China and the Area of Australia.
8 Value of accessories, spare parts, tools or instructional or other information materials
If paragraphs 153ZPE(7)(a), (b), (c), (d) and (e) of the Act are satisfied in relation to goods:
(a) the value of the accessories, spare parts, tools or instructional or other information materials covered by paragraph 153ZPE(7)(e) of the Act must be taken into account for the purposes of working out the regional value content of the goods under section 6 of this instrument; and
(b) for the purposes of sections 6 and 7 of this instrument, those accessories, spare parts, tools or instructional or other information materials are taken to be non‑originating materials used in the production of the goods.
9 Value of packaging material and container
If paragraphs 153ZPF(2)(a) and (b) of the Act are satisfied in relation to goods:
(a) the value of the packaging material or container in which the goods are packaged must be taken into account for the purposes of working out the regional value content of the goods under section 6 of this instrument; and
(b) for the purposes of sections 6 and 7 of this instrument, that packaging material or container is taken to be a non‑originating material used in the production of the goods.
Part 5—Record keeping obligations
10 Exportation of goods to Hong Kong, China—record keeping by exporter who is not the producer of the goods
(1) For the purposes of subsection 126APB(1) of the Act, an exporter of goods mentioned in that subsection, who is not also the producer of the goods, must keep the following records:
(a) records of the purchase of the goods by the exporter;
(b) records of the purchase of the goods by the person to whom the goods are exported;
(c) evidence that payment has been made for the goods;
(d) evidence of the classification of the goods under the Harmonized System;
(e) if the goods include any accessories, spare parts, tools or instructional or other information materials that were purchased by the exporter:
(i) records of the purchase of the accessories, spare parts, tools or instructional or other information materials; and
(ii) evidence of the value of the accessories, spare parts, tools or instructional or other information materials;
(f) if the goods include any accessories, spare parts, tools or instructional or other information materials that were produced by the exporter:
(i) records of the purchase of all materials that were purchased for use or consumption in the production of the accessories, spare parts, tools or instructional or other information materials; and
(ii) evidence of the value of the materials so purchased; and
(iii) records of the production of the accessories, spare parts, tools or instructional or other information materials;
(g) if the goods are packaged for retail sale in packaging material or a container that was purchased by the exporter:
(i) records of the purchase of the packaging material or container; and
(ii) evidence of the value of the packaging material or container;
(h) if the goods are packaged for retail sale in packaging material or a container that was produced by the exporter:
(i) records of the purchase of all materials that were purchased for use or consumption in the production of the packaging material or container; and
(ii) evidence of the value of the materials; and
(iii) records of the production of the packaging material or container;
(i) a copy of the Declaration of Origin for the goods.
(2) The records must be kept for at least 5 years starting on the day of exportation of the goods.
(3) The exporter:
(a) may keep the records at any place (whether or not in Australia); and
(b) must ensure that:
(i) the records are kept in a form that would enable a determination of whether the goods are Australian originating goods; and
(ii) if the records are not in English—the records are kept in a place and form that would enable an English translation to be readily made; and
(iii) if the records are kept by mechanical or electronic means—the records are readily convertible into a hard copy in English.
11 Exportation of goods to Hong Kong, China—record keeping by the producer of the goods
(1) For the purposes of subsection 126APB(1) of the Act, a producer of goods mentioned in that subsection, whether or not the producer is the exporter of the goods, must keep the following records:
(a) records of the purchase of the goods;
(b) if the producer is the exporter of the goods—evidence of the classification of the goods under the Harmonized System;
(c) evidence that payment has been made for the goods;
(d) evidence of the value of the goods;
(e) records of the purchase of all materials that were purchased for use or consumption in the production of the goods and evidence of the classification of the materials under the Harmonized System;
(f) evidence of the value of those materials;
(g) records of the production of the goods;
(h) if the goods include any accessories, spare parts, tools or instructional or other information materials that were purchased by the producer:
(i) records of the purchase of the accessories, spare parts, tools or instructional or other information materials; and
(ii) evidence of the value of the accessories, spare parts, tools or instructional or other information materials;
(i) if the goods include any accessories, spare parts, tools or instructional or other information materials that were produced by the producer:
(i) records of the purchase of all materials that were purchased for use or consumption in the production of the accessories, spare parts, tools or instructional or other information materials; and
(ii) evidence of the value of the materials so purchased; and
(iii) records of the production of the accessories, spare parts, tools or instructional or other information materials;
(j) if the goods are packaged for retail sale in packaging material or a container that was purchased by the producer:
(i) records of the purchase of the packaging material or container; and
(ii) evidence of the value of the packaging material or container;
(k) if the goods are packaged for retail sale in packaging material or a container that was produced by the producer:
(i) records of the purchase of all materials that were purchased for use or consumption in the production of the packaging material or container; and
(ii) evidence of the value of the materials; and
(iii) records of the production of the packaging material or container;
(l) a copy of the Declaration of Origin for the goods.
(2) The records must be kept for at least 5 years starting on the day of exportation of the goods.
(3) The producer:
(a) may keep the records at any place (whether or not in Australia); and
(b) must ensure that:
(i) the records are kept in a form that would enable a determination of whether the goods are Australian originating goods; and
(ii) if the records are not in English—the records are kept in a place and form that would enable an English translation to be readily made; and
(iii) if the records are kept by mechanical or electronic means—the records are readily convertible into a hard copy in English.
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