Customs (Trans‑Pacific Partnership Rules of Origin) Regulations 2018
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.
Dated 25 October 2018
Peter Cosgrove
Governor‑General
By His Excellency’s Command
Linda Reynolds
Assistant Minister for Home 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 Focused value method
7 Build‑down method
8 Build‑up method
9 Net cost method
Part 4—Determination of value
10 Value of goods that are originating materials or non‑originating materials
11 Value of accessories, spare parts or tools
12 Value of packaging material and container
Part 5—Record keeping obligations
13 Exportation of goods to territory of a Party—record keeping by exporter who is not the producer of the goods
14 Exportation of goods to territory of a Party—record keeping by the producer of the goods
Part 1—Preliminary
1 Name
This instrument is the Customs (Trans‑Pacific Partnership Rules of Origin) Regulations 2018.
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.
The whole of this instrument At the same time as Schedule 1 to the Customs Amendment (Comprehensive and Progressive Agreement for Trans‑Pacific Partnership Implementation) Act 2018 commences. 30 December 2018
Note: This table relates only to the provisions of this instrument as originally made.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 has the meaning given by section 153ZKU of the Act.
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 2018 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
certification of origin has the meaning given by section 153ZKU of the Act.
Harmonized System has the meaning given by section 153ZKU of the Act.
non‑originating materials has the meaning given by section 153ZKU of the Act.
originating materials has the meaning given by section 153ZKU of the Act.
Party has the meaning given by section 153ZKU of the Act.
production has the meaning given by section 153ZKU of the Act.
territory, for a Party, has the meaning given by section 153ZKU of the Act.
Part 2—Tariff change requirement
5 Change in tariff classification requirement for non‑originating materials
For the purposes of subsection 153ZKX(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 territory of one or more of the Parties 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 Focused value method
(1) For the purposes of subsection 153ZKX(8) of the Act, the regional value content of goods under the focused value method 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 specified non‑originating materials means the value, worked out under Part 4, of the non‑originating materials that:
(a) are specified in the second column of the table in Annex 3‑D to Chapter 3 of the Agreement that applies to the goods, to the extent that column refers to the focused value method; and
(b) are used in the production of the goods.
(2) Regional value content must be expressed as a percentage.
7 Build‑down method
(1) For the purposes of subsection 153ZKX(8) of the Act, the regional value content of goods under the build‑down method 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 used in the production of the goods.
(2) Regional value content must be expressed as a percentage.
8 Build‑up method
(1) For the purposes of subsection 153ZKX(8) of the Act, the regional value content of goods under the build‑up method 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 originating materials means the value, worked out under Part 4, of the originating materials used in the production of the goods.
(2) Regional value content must be expressed as a percentage.
9 Net cost method
(1) For the purposes of subsection 153ZKX(8) of the Act, the regional value content of goods under the net cost method is worked out using the formula:
net cost means the net cost of the goods worked out in accordance with Article 3.9 of the Agreement.
value of non‑originating materials means the value, worked out under Part 4, of the non‑originating materials used in the production of the goods.
(2) Regional value content must be expressed as a percentage.
Part 4—Determination of value
10 Value of goods that are originating materials or non‑originating materials
(1) For the purposes of subsection 153ZKU(2) of the Act, this section explains how to work out the value of originating materials or non‑originating materials used in the production of goods.
(2) The value of the materials is as follows:
(a) for materials imported into the territory of a Party 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;
(b) for materials acquired in the territory of a Party where the goods are produced:
(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 territory of the Party by the producer of the goods; or
(iii) the earliest ascertainable price paid or payable for the materials in the territory of the Party;
(c) for materials that are produced by the producer of the goods—the sum of:
(i) all the costs incurred in the production of the materials, including general expenses; and
(ii) an amount that is the equivalent of the amount of profit that the producer would make for the materials in the normal course of trade or of the amount of profit that is usually reflected in the sale of goods of the same class or kind as the materials.
(3) For the purposes of paragraph (2)(a), in working out the value of particular materials, the costs incurred in the international shipment of the materials must be included.
(4) If the materials are originating materials, in working out the value of the originating materials under subsection (2), the following may be included, to the extent that they have not been taken into account under that subsection:
(a) the costs of freight, insurance, packing and all other costs incurred to transport the materials to the producer of the goods;
(b) duties, taxes and customs brokerage fees on the materials that:
(i) have been paid in the territory of one or more of the Parties; 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 the goods, reduced by the value of reusable scrap or by‑products.
(5) If the materials are non‑originating materials, in working out the value of the non‑originating materials under subsection (2), the following may be deducted:
(a) the costs of freight, insurance, packing and all other costs incurred in transporting the materials to the producer of the goods;
(b) duties, taxes and customs brokerage fees on the materials that:
(i) have been paid in the territory of one or more of the Parties; 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.
11 Value of accessories, spare parts or tools
If paragraphs 153ZKX(10)(a), (b), (c) and (d) of the Act are satisfied in relation to goods:
(a) the value of the accessories, spare parts, tools or instructional or other information materials must be taken into account for the purposes of working out the regional value content of the goods under Part 3; and
(b) if the accessories, spare parts, tools or instructional or other information materials are non‑originating materials—for the purposes of Part 3 and section 10, 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; and
(c) if the accessories, spare parts, tools or instructional or other information materials are originating materials—for the purposes of Part 3 and section 10, those accessories, spare parts, tools or instructional or other information materials are taken to be originating materials used in the production of the goods.
12 Value of packaging material and container
If paragraphs 153ZKY(1)(a) and (b) of the Act are satisfied in relation to goods and the goods must have a regional value content of not less than a particular percentage worked out in a particular way:
(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 Part 3; and
(b) if that packaging material or container is a non‑originating material—for the purposes of Part 3 and section 10, that packaging material or container is taken to be a non‑originating material used in the production of the goods; and
(c) if that packaging material or container is an originating material—for the purposes of Part 3 and section 10, that packaging material or container is taken to be an originating material used in the production of the goods.
Part 5—Record keeping obligations
13 Exportation of goods to territory of a Party—record keeping by exporter who is not the producer of the goods
(1) For the purposes of subsection 126AKJ(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 certification of origin for the goods.
(2) The records must be kept for at least 5 years starting on the date the certification of origin for the goods is issued.
(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 originating goods in accordance with the Agreement; 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.
14 Exportation of goods to territory of a Party—record keeping by the producer of the goods
(1) For the purposes of subsection 126AKJ(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 certification of origin for the goods.
(2) The records must be kept for at least 5 years starting on the date the certification of origin for the goods is issued.
(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 originating goods in accordance with the Agreement; 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.