G/TFA/Q/IDN/1  
 
20 March 2023  
(23-2012) Page: 1/2 
Committee on Trade Facilitation  Original: English  
 
WRITTEN QUESTIONS TO INDONESIA FROM THE UNITED STATES REGARDING 
INDONESIAN REGULATION 190/PMK.04/2022  
 
1. The United States is very concerned with Indonesian regulation 190/PMK.04/2022 of 
14 December 2022, entitled "The Transfer of Self -Consumed Goods" . 
2. This regulation attempts to make intangible goods subject to a customs operation, including 
through procedur al requirements and Chapter 99 of the Indonesian tariff schedule. The regulation 
states it will be enforced through customs audit procedures.  
3. Our first question is how Indonesia determined that these intangibles are "goods." In the 
United States, our court s have taken the position that intangible products, such as software or an 
app, ultimately a structured data sequence, cannot be considered a "good" . This question of course 
was raised in the context of examining whether this type of data, is a "good" for purposes of 
importation and the tariff schedule (HTSUS). U.S. courts determined this type of data is not a good 
in any reasonable understanding of the word "good" . 
4. Can Indonesia share its legislation and public facing document explaining how it determined 
that data or code is a "good" for purposes of Indonesian law, and its tariff schedule?  
5. Indonesia is a party to the HSC at the WCO, as is the United States. While, there is no 
international agreement as to the nomenclature in Chapter 99, Article 3(1)(a)(ii ) of that Convention, 
requires that each Contracting Member apply the General Rules of Interpretation in its 
implementation. Therefore, we request that Indonesia explain how it applied GRI 1 to this data or 
code, to determine the classification in either t ariff line since GRI 1 requires that goods be classified 
according to their "essential character" . It is our understanding that the very nature of this data is 
"1s" and "0s" . We would like to know how Indonesia has determined that the GRIs and specifically  
GRI 1 would lead an importer to utilize these tariff lines.  
6. We have researched the publicly available material on Indonesia 's notified single window and 
government websites and cannot locate any definition of what "self -consumed" means. We request 
that In donesia provide the definition of self -consumed and how a person, and for purposes of 
customs, an importer, would determine it is required to comply with this regulation.   
7. Further to these fundamental questions is how any importer or potential importer, w ould know 
it is an importer? The language of the regulation would include any user of a smart phone or 
computer. How does any person know where this type of data, software and apps, updates, etc., is 
created, how it gets to them, and whether it originates outside or inside the territory where they 
reside? Additionally, downloads, apps, updates, bug -fixes are created globally with origins and input 
and collaboration of global supply chains. How would a person determine its origin if many 
developers, in diffe rent jurisdictions, including from LDCs, contribute to the app, update, download, 
software, or fix?  
8. The simple fact is that this type of data, software, whether as an operating system or an app, 
is everywhere and a daily part of almost every citizen 's life. Every single person that has a smart 
phone, has updates, enhancements, and bug fixes transmitted to their devices on a daily basis. How 
could a person know it is required to maintain records for each bug fix, update to an app, phone or 
laptop? How could a person know what is the origin of that bug fix, update, to any smart device or 
app?   G/TFA/Q/IDN/1  
 
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  9. Relying on a simple internet search, we found that "the number of smartphone users in 
Indonesia was estimated to reach 210.77 million users in 2021. Currently, Indonesi a is the 
fourth -largest smartphone market worldwide after China, India, and the United States. In 2018, the 
subscriber count for telecommunications provider Telkomsel amounted to 163 million. See, 
https://www.statista.com/statistics/266729/smartp hone-users -in-
indonesia/#:~:text=The%20number%20of%20smartphone%20users,India%20and%20the%20Un
ited%20States.&text=In%202018%2C%20the%20subscriber%20count,Telkomsel%20amounted
%20to%20163%20million .  
10. Can Indonesia tell us how it has notified its over 210 mil lion smart phone users that they are 
potential importers and are required to keep records for all updates, bug fixes, and downloads, so 
they may be audited by the customs authority?   
11. We note that Indonesia notified Article 7.5, customs audit, as a Categor y A. We would be 
interested in how Indonesia will use customs audit to enforce the regulation at issue. Could Indonesia 
provide us the legislation, regulations, procedures, and any public guidance document for customs 
audits in Indonesia? We would like to delve deeper into the document retention policy for customs 
audit purposes of this regulation to understand how Indonesia plans to subject every person 
potentially liable for compliance with regulation 190/PMK.04/2022 to a customs audit.   
12. Additionally, we  note that TFA Article 3.2 on Penalty Disciplines requires that each Member 
shall ensure that penalties for a breach of a customs law, regulation, or procedural requirement are 
imposed only on persons responsible for the breach under its laws. We consider this discipline, 
especially relevant and instructive when examining regulation 190/PMK.04/2022. Our previous 
questions are all relevant to understanding who and how a person will be held responsible for 
complying with the regulation at issue, and that no o ne else, whether in Indonesia, or located outside 
of Indonesia, will be held responsible for compliance by the use of penalties. As of now, based on 
the language of the regulation, we see all smart phone users and those that use computers will be 
responsib le to comply with this regulation, and potentially content creators, including app 
developers, but they cannot all be responsible at the same time, only one can be the "self -consumer" 
for each transaction as per the regulation. However, to understand who i n each transaction is the 
responsible party subject to the customs audit and ultimately a potential penalty for failure to 
comply, further clarity is necessary to understand what constitutes a transaction, and what the 
document retention requirements consi st of for purposes of the customs audit.  
13. We would also like to understand this regulation in light of the commitment in TFA 
Article  10.1.1 with respect to formalities and documentation requirements. We would request that 
Indonesia, as the only WTO Member t hat requires a customs procedure for intangible goods, share 
with us how this regulation comports with the objective of minimizing the incidence and complexity 
of import formalities. We would welcome Indonesia sharing with us the results of such review.   
14. We are preparing a number of additional questions regarding the apparent taxes that are 
incurred in tariff lines 9901.10.00 and 9901.20.00 of the Indonesian tariff schedule. We look forward 
to Indonesia 's written responses in the meantime.  
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