The Comprehensive and Progressive Agreement for Trans-Pacific Partnership, commonly referred to as TPP11, will come into force on the 30th of December 2018. TPP11 is a new FTA between Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, New Zealand, Singapore and Vietnam.

WHAT IS IT AND WHAT DOES IT MEAN FOR SOUTH AUSTRALIAN EXPORTERS?

Exports of Australian origin goods to countries party to CPTPP, which have ratified the agreement, will enjoy preference.  This means that the importers of goods from CPTPP countries, including Australia, will pay a lower percentage of duty than the standard duty rate on many goods.

WHICH COUNTRIES DOES CPTPP INVOLVE AND WHEN DOES CPTPP COME INTO EFFECT?

CPTPP enters into force on 30 December 2018. Australia, New Zealand, Canada, Japan, Mexico, Singapore and Viet Nam have ratified the agreement, so the benefits of CPTPP will apply in these countries. Note: Viet Nam applies from 14 January 2019. Peru is expected to ratify early in 2019, with Chile, Brunei and Malaysia expected to ratify by mid- 2019.

HOW CAN I FIND OUT WHETHER THERE IS A PREFERENTIAL DUTY RATE UNDER CPTPP FOR OUR GOODS?

You will need the correct HS Code sub heading (1st 6 digits of the HS Code, Australian statistical export code)
Not all countries will offer the same preference (reduced duty rate) to every country in CPTPP
You will be able to check whether there is a duty preference under CPTPP from 30 December 2018 via Austrade’s FTA portal by clicking here. When Australia has more than one trade agreement with the country goods are being exported to, you will also be able to use this tool to compare which agreement offers the best duty preference.It would be advisable to cross reference this with the actual CPTPP Tariff schedules (2-D annexes)

HOW DO I DETERMINE WHETHER OUR GOODS WILL MEET ORIGIN REQUIREMENTS UNDER CPTPP?

Click here to read Chapter 3 Section A Rules of Origin. 

Wholly obtained goods are only those which meet the criteria under Article 3.3. All processed and manufactured goods will be required to satisfy the Product Specific Rules of Origin as specified in Annex 3-D, click here to read more. 

Click here to read the separate schedule for motor vehicle related goods.

Where possible it is recommended that manufactured goods meet the Change of Tariff classification rules.
Having determined which origin criterion a good would qualify under, the exporter is required to keep records supporting the option selected and present these in the event of a post entry audit. Details of this obligation is set out in Chapter 3, Section B, Article 3.26 (Page 3-19, 20). See Verification question below for further information.

ARE THERE ANY OTHER REQUIREMENTS TO QUALIFY FOR PREFERENTIAL DUTIES UNDER CPTPP?

Yes. Goods need to be consigned directly from Australia to the importing party. Goods may be transhipped via ports in other countries en-route. Note: there is no mention of Certificates of Non-Manipulation (CNM), however, the importing party may elect to require one and CNM are not issued retrospectively, so determine prior to shipment whether the importing party will seek a CNM.

For details of the limitations and provisions refer to Chapter 3, Section A, Article 3.18.  (Page 3-15)

HOW DO I SHOW THAT OUR GOODS ARE OF AUSTRALIAN ORIGIN - IS A CERTIFICATE OF ORIGIN REQUIRED?  DOES BUSINESS SA STAMP THE CERTIFICATE OF ORIGIN?

1. Yes, the exporter will need to provide a declaration to the importer referred to under CPTPP as a ‘certification of origin’ for preference under CPTPP to be applied.There is no prescribed template or ‘form’ for making the ‘certification of origin’ declaration. In fact, CPTPP expressly states there should be no set ‘form’ or ‘template’.   Reference Chapter 3, Section B, Article 3.20, Paragraph 3.a (Page 3-16) 

However, there is a set requirement for information and the declaration text – refer to the next question.

2. There is no requirement for Business SA to certify a CPTPP certification of origin. The CPTPP certification of origin made by an exporter is their responsibility.  It is recommended that exporters fully understand the potential consequences of making a false statement, even if unwittingly. These are set out in Chapter 3, Section B, Articles 3.24 – 3.31 (Pages 3-18 to 3-25)

However, if an importer requested the Chamber of Commerce to stamp an exporter’s certification of origin, Business SA may do so. Business SA would require the statement to first be signed by the exporter, to be on the exporter’s letterhead and may require supporting documents to confirm that the goods meet the claimed origin criterion.

Alternatively, the exporter may use Business SA’s template (with continuation page) which we will then certify. Note that charges apply for certification.

SO, IF THERE IS NO CERTIFICATE OF ORIGIN FORM, HOW DO I FORMAT A CPTPP CERTIFICATION OF ORIGIN?

There are two options for a CPTPP certification of origin

1. A consignment based document – one required for each consignment.
Benefits:
- Keep track of documents and the related records to support origin claim together with the other consignment related files.
- Ideal for one off sales, irregular exports to a consignee, new importer, sales involving a 3rd party, exports of different goods to the same consignee.

2. A blanket document covering multiple shipments for a period of up to 12 months.
Best suit:
- Regular shipments of exactly the same goods, with the same origin criterion to the same importer.

The minimum information required is outlined in Chapter 3, Annex 3-B (Pages 3-28, 29)

Consignment based Certification of Origin:

Option A: Add the required information to the exporter’s commercial invoice (only when the exporter’s commercial invoice will be presented by the importer at time of import).  The CPTPP Certification of origin declaration and required information would need to be added to the Commercial Invoice.

Option B: The exporter could create their own ‘template’ to populate the required data for each shipment.  Remember the Commercial invoice number is required to be stated when consignment based.

The Department for Foreign Affairs and Trade have provided these templates as examples:
Certification of Origin using a template
Certification of Origin on an invoice or company letterhead 

Blanket Period:
The exporter would specify the blanket period which may be up to 12 months and provide all the information as set out in Chapter 3, Annex 3-B (Pages 3-28, 29) in their own ‘template’.

Note:

1. The declaration text required on any of the above options is set out in Chapter 3, Annex 3-B Paragraph 9 (Page 3-29).
2. The certifier’s (person signing the declaration statement) name, address (including country), telephone number and email address is required on the ‘certification of origin’ document. Reference:  Chapter 3, Annex 3-B Paragraph 2 (Page 3-28).
3. The Certification of Origin needs to be dated as it is only valid for 12 months from the date of issue. Reference:  Chapter 3, Section B, Article 3.30, Paragraph 5 (Page 3-17).
4. Any missing information may result in preference being declined.  It will be important to have a ‘set format’ so that it is clear that all required information has been provided. 

WE ARE REQUIRED TO STATE THE ORIGIN CRITERION FOR EACH GOOD, BUT THERE ARE NO ORIGIN CODES. HOW DO WE DO THIS?

How to identify the applicable origin criterion is not specified in the CPTPP. At this time there are no agreed and notified origin codes.  In their absence, it recommended to specify the applicable article. For example:

Wholly obtained or produced exclusively from originating materials (as specified in Article 3.3):
- Australian origin: Article 3.2 (a)

Produced entirely in territory of one or more parties exclusively from originating materials (as specified in Article 3.3):
- Australian origin: Article 3.2(b)

Manufactured goods meeting Product Specific Rule as outlined in Annex 3-D:
- Australian origin: Article 3.2 (c)   

Reference: Chapter 3, Section A, Article 3.2 (Page 3-2).

MAY THE CERTIFICATION OF ORIGIN BE IN ELECTRONIC FORMAT (PDF)?

Yes. It is recommended that an electronic format of the certification of origin statement is presented in colour and that signatures are done in blue in preference to black ink and signature images are clear.
Reference: Chapter 3, Section B, Article 3.20 Paragraph 3.b (Page 3-16).

WE ARE SHIPPING AUSTRALIAN ORIGIN GOODS TO A CPTPP PARTY, BUT WE ARE NOT THE SELLER TO THE IMPORTER.  HOW DO WE MANAGE ‘THIRD PARTY’ TRANSACTIONS?

CPTPP does not have any specified requirements for third-party transactions, although the text infers provision for 3rd party transactions. The certification of origin is required to be a separate document to the commercial invoice when the commercial invoice issued for the importation of the goods is from a company in a country which is not a CPTPP party.    

Reference: Chapter 3, Section B, Article 3.28, Paragraph 4 (Page 3-24)

Note: It is recommended that the certification of origin be a separate document for any 3rd party transactions and the 3rd party will need to disclose their commercial invoice number so this can be noted on the exporter’s certification of origin.  

Remember: the goods are required to meet the direct shipment requirements outlined in Chapter 3, Section A, Article 3.18. (Page 3-15)

THE GOODS HAVE LEFT AUSTRALIA. CAN A CERTIFICATION OF ORIGIN BE DATED AFTER THE SHIPMENT DATE?

There are no requirements relating to dating of a certification of origin in relation to shipment date, however the importer will need to have the certification of origin in their possession when they make their import declaration in order to claim preferential tariffs under CPTPP and the certification of origin is required to be dated.    

Reference: Chapter 3, Section B, Article 3.24, Paragraph 1(b) (Page 3-18)

THE IMPORTER IS REQUESTING ‘PROOF’ THE GOODS QUALIFY UNDER THE ORIGIN CRITERION WE HAVE NOMINATED ON OUR CERTIFICATION OF ORIGIN.   WE ARE CONCERNED ABOUT PROVIDING COMMERCIALLY SENSITIVE INFORMATION EITHER TO THE IMPORTER OR DIRECT TO THE IMPORTING CUSTOMS AUTHORITIES.  HOW CAN WE COMPLY WITH THIS TYPE OF REQUEST?

CPTPP importing Customs Authorities have powers to seek verification of any claim that goods meet the nominated origin criterion, through to visiting the producer’s premises.  It is expected that those CPTPP countries with higher base duty rates will place claims for preference under greater levels of scrutiny.

Reference:  Chapter 3, Section B, Articles 3.27 – 3.31 (Pages 3-20 to 3-25)

Satisfying written verification requests without the intermediary of a third-party independent certifier, a role Business SA fulfils for Certificates of Origin it issues, will take care. Exporters will need to provide sufficient information to satisfy the concern of the importing authorities that the goods meet the rule, without divulging commercially sensitive details.

Exporters with concerns or requiring assistance may still contact Business SA and may be referred to Australian Customs for support.

DETAILS HAVE CHANGED, OR WE HAVE NOTICED AN ERROR AFTER WE PROVIDED THE CPTPP CONSIGNMENT BASED CERTIFICATION OF ORIGIN TO THE IMPORTER.  CAN WE MAKE A CHANGE?

The certification of origin documents will have no unified numbering system, so there will be no transparent ‘cancel and replace’ system. When providing a ‘replacement’ certification of origin, noting on the replacement that the current document ‘cancels and replaces the certification of origin issued on xyz date reference commercial invoice #’ would make it clear to the import authorities that there is only one valid document for the consignment. Ensuring the original erroneous declaration is returned to the exporter, would minimise the risk of an exporter’s certification of origin being misused for other shipments.

WE ARE HAVING OUR GOODS MANUFACTURED UNDER LICENCE IN ONE CPTPP COUNTRY, BRINGING THEM BACK TO AUSTRALIA FOR QUALITY CONTROL, WAREHOUSING AND THEN EXPORTING TO OTHER CPTPP COUNTRIES.  CAN WE GET THE BENEFIT OF CPTPP PREFERENTIAL TARIFFS WITH THIS BUSINESS MODEL?

Yes. The exporter in Australia would provide a ‘certification of origin’ stating the origin of the goods (CPTPP country of manufacture) and the relevant origin criterion. 

Example: goods manufactured in Malaysia. Origin Criterion: Malaysia Origin: Article 3.2(c)

The exporter is required to hold commercial records to substantiate their declaration.  It is recommended that the exporter hold a CPTPP certification of origin from the supplier in the CPTPP country of manufacture and that they are confident that the origin criterion is accurate, and goods do meet the product specific rules for the relevant HS Code at the place of manufacture.

Reference:  Chapter 3, Section B, Article 3.21 Paragraph 2 (Page 3-17) and Chapter 3, Annex 3-B Paragraph 4 (Page 3-28).

REMINDER: CLAIMING PREFERENCE UNDER A FREE TRADE AGREEMENT IS A PRIVILEGE NOT A RIGHT

When an Australia exporter provides a ‘certification of origin’ it is their responsibility to ensure their goods meet the requirements of the origin criterion they have opted to select.   

The lack of ‘red tape’ associated with claiming origin for preferential duty rates under CPTPP looks attractive at first glance. Exporters will require detailed procedures to ensure compliance and minimise commercial and legal risks.  For example, through missing required information, inadvertently misrepresenting the origin of the goods or an importer using the declaration for goods other than the Australia exporter’s consignment, which have an increased likelihood of resulting in preference being declined, making full duty payable by the importer, or verification processes being initiated which delay clearance unless, again, full duties are paid and possibly of penalties being imposed.    

It is recommended that exporters read and fully understand Chapter 3 and Annex 3-B prior to completing a ‘certification of origin’.  Particularly the paragraphs related to obligations, verification provisions and penalties.

For all enquiries please call (08) 8300 0083 or email [email protected]