Part 1—Preliminary
1.1 Name of regulation
This regulation is the Customs (Malaysian Rules of Origin) Regulation 2012.
1.3 Authority
This regulation is made under the Customs Act 1901.
1.4 Definitions
In this regulation:
Act means the Customs Act 1901.
Agreement has the meaning given by section 153ZLB 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 2021 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Australian originating goods has the meaning given by section 153ZLB of the Act.
Declaration of Origin has the meaning given by section 153ZLB of the Act.
Harmonized System has the meaning given by section 153ZLB of the Act.
non‑originating materials has the meaning given by section 153ZLB of the Act.
originating materials has the meaning given by section 153ZLB of the Act.
produce has the meaning given by section 153ZLB of the Act.
territory of Australia has the meaning given by section 153ZLB of the Act.
territory of Malaysia has the meaning given by section 153ZLB of the Act.
Part 2—Tariff change requirement
2.1 Change in tariff classification requirement for non‑originating materials
For the purposes of subsection 153ZLE(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 Malaysia, or entirely in the territory of Malaysia and the territory 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
3.1 Build‑down method
(1) For the purposes of subsection 153ZLE(6) of the Act, the regional value content of goods under the build‑down method is worked out using the formula:
where:
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.
3.2 Build‑up method
(1) For the purposes of subsection 153ZLE(6) of the Act, the regional value content of goods under the build‑up method is worked out using the formula:
where:
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 that are acquired by the producer, or produced by the producer, and are used by the producer in the production of the goods.
(2) Regional value content must be expressed as a percentage.
Part 4—Determination of value
4.1 Value of goods that are originating materials or non‑originating materials
(1) For the purposes of subsection 153ZLB(3) 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 Malaysia 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 Malaysia—the earliest ascertainable price paid or payable for the materials;
(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.
(3) In working out the value of particular 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 within the territory of Malaysia, or between the territory of Australia and the territory of Malaysia, 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 territory of Malaysia and the territory 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 the goods, reduced by the value of renewable scrap or by‑products.
(4) In working out the value of particular non‑originating materials under subsection (2), the following may be deducted if they were included under that subsection:
(a) the costs of freight, insurance, packing and all other costs incurred to transport the non‑originating materials within the territory of Malaysia, or between the territory of Australia and the territory of Malaysia, to the location of the producer of the goods;
(b) duties, taxes and customs brokerage fees on the non‑originating materials that:
(i) have been paid in either or both of the territory of Malaysia and the territory 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 non‑originating materials in the production of the goods, reduced by the value of renewable scrap or by‑products;
(d) the costs of processing incurred in either or both of the territory of Malaysia and the territory of Australia in the production of the non‑originating materials;
(e) the costs of originating materials used in the production of the non‑originating materials in either or both of the territory of Malaysia and the territory of Australia.
4.2 Value of accessories, spare parts, tools or instructional or other information materials
If paragraphs 153ZLE(7)(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 of this regulation; and
(b) if the accessories, spare parts, tools or instructional or other information materials are non‑originating materials—for the purposes of sections 3.1 and 4.1 of this regulation, 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 sections 3.2 and 4.1 of this regulation, those accessories, spare parts, tools or instructional or other information materials are taken to be originating materials used in the production of the goods.
4.3 Value of packaging material and container
(1) If paragraphs 153ZLF(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 of this regulation; and
(b) if that packaging material or container is a non‑originating material—for the purposes of sections 3.1 and 4.1 of this regulation, 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 sections 3.2 and 4.1 of this regulation, that packaging material or container is taken to be an originating material used in the production of the goods.
(2) However, if the packaging material or container is not customary for the goods, the packaging material or container must be taken into account as a non‑originating material for the purposes of working out the regional value content of the goods.
Part 5—Record keeping obligations
5.1 Exportation of goods to Malaysia—record keeping by exporter who is not the producer of the goods
(1) For subsection 126ALB (1) of the Act, an exporter of goods mentioned in that subsection, who is not also the producer of 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 spare parts, accessories, tools or instructions or other information materials that were purchased by the exporter:
(i) records of the purchase of the spare parts, accessories, tools or instructions or other information materials; and
(ii) evidence of the value of the spare parts, accessories, tools or instructions or other information materials;
(f) if the goods include any spare parts, accessories, tools or instructions 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 spare parts, accessories, tools or instructions or other information materials; and
(ii) evidence of the value of the materials; and
(iii) records of the production of the spare parts, accessories, tools or instructions 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 the materials; 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 date the Declaration of Origin for the goods is signed.
(3) The exporter:
(a) may keep the record at any place (whether or not in Australia); and
(b) must ensure that:
(i) the record is kept in a form that would enable
a determination of whether the goods are
Australian originating goods in accordance with the Agreement; and
(ii) if the record is not in English—the record is kept in a place and form that would enable an English translation to be readily made; and
(iii) if the record is kept by mechanical or electronic means—the record is readily convertible into a hard copy in English.
5.2 Exportation of goods to Malaysia—record keeping by the producer of the goods
(1) For subsection 126ALB (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 spare parts, accessories, tools or instructions or other information materials that were purchased by the producer:
(i) records of the purchase of the spare parts, accessories, tools or instructions or other information materials; and
(ii) evidence of the value of the spare parts, accessories, tools or instructions or other information materials;
(i) if the goods include any spare parts, accessories, tools or instructions 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 spare parts, accessories, tools or instructions or other information materials; and
(ii) evidence of the value of the materials; and
(iii) records of the production of the spare parts, accessories, tools or instructions 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.
(2) The records must be kept for at least 5 years starting on the date the Declaration of Origin for the goods is signed.
(3) The producer:
(a) may keep the record at any place (whether or not in Australia); and
(b) must ensure that:
(i) the record is kept in a form that would enable a determination of whether the goods are Australian originating goods in accordance with the Agreement; and
(ii) if the record is not in English—the record is kept in a place and form that would enable an English translation to be readily made; and
(iii) if the record is kept by mechanical or electronic means—the record is readily convertible into a hard copy in English.