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THE
MINISTER OF INDUSTRY AND TRADE
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SOCIALIST REPUBLIC
OF VIET NAM
Independence - Freedom - Happiness
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No. 19/2008/QD-BCT
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Hanoi, July 24, 2008
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DECISION
PROMULGATING THE
REGULATION ON ISSUANCE OF CERTIFICATES OF ORIGIN, FORM I), FOR PREFERENTIAL
TREATMENT UNDER THE AGREEMENT ON THE COMMON EFFECTIVE PREFERENTIAL TARIFFS
(CEPT) SCHEME FOR THE ASEAN FREE TRADE AREA (AFTA)
THE MINISTER
OF INDUSTRY AND TRADE
Pursuant to the
Agreement on the Common Effective Preferential Tariffs (CEPT) Scheme for the
ASEAN Free Trade Area (AFTA );
Pursuant to the Government's Decree No. 189/2007/ND-CP of December 27, 2007, on
the function, tasks, powers and organizational structure of the Ministry of
Industry and Trade;
At the proposal of the director of the Export-Import Department,
DECIDES:
Article 1.- To
promulgate together with this Decision the Regulation on issuance of
certificates of origin. Form D, for preferential treatment under the Agreement
on the Common Effective Preferential Tariffs (CEPT) Scheme for the ASEAN Free
Trade Area (.AFTA), which was officially signed in Singapore on January 28.
1992 (referred to as the Regulation on issuance of C/O Form D in this
Regulation and attached appendices).
Article 2.- This
Decision takes effect 15 days after its publication in "CONG BAO."
This Decision
replaces the Trade Minister's Decision No. 1420/2004/QD-BTM of October 4. 2004,
promulgating the Regulation on issuance of certificates of origin. Form D. for
preferential treatment under the Agreement on the Common Effective Preferential
Tariffs (CEPT) Scheme for the ASEAN Free Trade Area (AFTA) (below referred to
as Decision No. 1420/2004/QD-BTM) and decisions amending and supplementing
Decision No. 1420/2004/QD-BTM.
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FOR THE MINISTER OF INDUSTRY AND TRADE
VICE MINISTER
Nguyen Thanh Bien
REGULATION
ON ISSUANCE OF
CERTIFICATES OF ORIGIN. FORM D
(Promulgated together with the Industry and Trade
Minister's Decision No. 19/2008/QD-BCT of July 24, 200S. promulgating the
Regulation on issuance of certificates of origin Form D for preferential
treatment under the Agreement on the Common Effective Preferential Tariffs
(CEPT) Scheme for the ASEAN Free Trade Area (AFTA)
Chapter I
GENERAL
PROVISIONS
Article 1.-
Definitions
1. The Agreement on
the Common Effective Preferential Tariffs (CEPT) Scheme for the ASEAN Free
Trade Area (AFTA) between the Southeast Asian nations (below referred to as the
CEPT Agreement) was officially signed in Singapore on January 28, 1992.
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3. Vietnamese
authorities issuing C/O Form D (below referred to as issuing authorities) are
Import-Export Management Sections of the Ministry of Industry and Trade and
other organizations authorized by the Ministry of Industry and Trade. The list
of issuing authorities is shown in Appendix 13, which may be modified and
supplemented by the Ministry of Industry and Trade at each specific time.
4. Applicants for C/O
Form D (below referred to as applicants) include exporters, producers and
lawfully authorized representatives of exporters or producers.
The eCOSys is an
electronic certificate of origin issuance and management system in Vietnam at http://www.ecosys.gov.vn.
Article 2.- Goods
to be issued C/O
Goods to be issued
C/O are those that fully satisfy the origin conditions prescribed in this
Regulation.
Article 3.- Responsibilities
of applicants
Applicants shall:
1. Submit trader
dossiers to issuing authorities, for traders applying for C/O for the first
time;
2. Submit dossiers of
application for C/O to issuing authorities;
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4. Take
responsibility before law for the accuracy and truthfulness of declarations
related to C/O application, including cases of authorization by exporters;
5. Promptly report to
issuing authorities at which traders have filed C/O applications on C/ O issued by
Vietnamese issuing authorities which are rejected by importing countries (if
any);
6. Create conditions
for issuing authorities to conduct physical inspection at establishments
producing or raising, growing, harvesting and processing exports;
7. Notify in writing
issuing authorities with which traders have registered trader dossiers of the
reasons for non-application for C/O there, and the names of the new issuing
authorities at which traders have filed C/O applications;
8. Upon request of
the Ministry of Industry and Trade, issuing authorities, customs authorities of
Vietnam or importing countries, prove the authenticity of the origin of
exported goods.
Article 4.- Responsibilities
of issuing authorities
Issuing authorities
shall:
1. Give guidance to
applicants upon request:
2. Receive and
examine trader dossiers and C/O application dossiers:
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4. Issue C70 when the
goods satisfy the origin requirements set out in this Regulation and the
applicants observe all the provisions of Article 3 of this Regulation;
5. Send specimens of
signatures of persons authorized to sign C/O and their seals to the Ministry of
Industry and Trade (the Import-Export Department) according to the Ministry's
regulations for registration with customs authorities of importing countries;
6. Settle complaints
related to C/O issuance according to their competence;
7. Re-verify the
origin of exported goods at the request of the Ministry of Industry and Trade
and customs authorities of importing countries;
8. Exchange
information relating to the registration of trader dossiers in case traders
have registered their trader dossiers with two or more issuing authorities and
other matters related to C/ O
issuance;
9. Implement the
reporting regime and other requirements set by the Ministry of Industry and
Trade.
Chapter II
PROCEDURES
FOR C/O ISSUANCE
Article 5.- Registration
of trader dossiers
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a/Registration of the
specimen of the signature of the person authorized to sign the application for
C/O and the specimen of the seal of the trader
(Appendix 12. nor printed herein):
b/The business
registration certificate of the trader (a copy with the true copy mark);
c/ The certificate of
the tax identification number (a copy with the true copy mark);
d/ A
list of production establishments (if any) of the trader (Appendix 11, not printed herein).
2. Any change in the
trader dossier must be notified to the issuing authority with which the dossier
has been registered before application for C/O. Trader dossiers must be updated
twice a year.
3. In case of
application for a C/O at an issuing authority different from that with which
the applicant has registered the trader dossier, the applicant shall supply a
written plausible reason for the non-application at the issuing authority with
which the applicant has registered the trader dossier and shall register the
trader dossier with the new issuing authority.
4. In all cases in
which C/O applications have been filed but trader dossiers have not yet
registered, trader dossiers must be registered at the time of applying for C/O
under this Regulation.
Article 6.- C/O
application dossiers
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a/The application for
C/O (Appendix 10, not printed herein),
which have been duly completed;
b/The C/O form,
already completed;
c/ The export customs
declaration for which customs procedures have been completed (this declaration
is not required for exported goods for which submission of export customs
declarations is not required by law);
d/The commercial
invoice;
dd/The bill of
lading.
Pending the
availability of the export customs declaration for which customs procedures
have been completed and the bill of lading (or any document equivalent to bill
of lading), the applicant may submit these documents later within 15 (fifteen)
working days from the date of receipt of C/O.
2. When finding it
necessary, the issuing authority may request the applicant to supply additional
documents related to the exports such as import customs declarations for
materials and accessories; export permits (if any); purchase and sale contract;
value added invoices on the purchase and sale of domestic materials and
accessories: samples of materials and accessories or exports, and other
documents proving the origin of exports.
3. The papers
specified at Points c. d and e, Clause 1 and
Clause 2 may be copies bearing the signatures and true copy marks of the head
or authorized person of the unit or organization, of the signature and stamp of
a public notary, together with the originals for comparison.
4. For traders
participating in the eCOSys, the persons authorized to sign C/O applications
shall declare data through the eCOSys, give e-signatures and transmit them to
issuing authorities. After examining the dossiers on the eCOSys, if agreeing to
issue C/O. the issuing authorities shall notify through the eECOSys to traders
to submit complete dossiers on paper to the issuing authorities for comparison
before issuing C/O.
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When applicants
submit dossiers, officers in charge of receipt shall receive them. Officers in
charge of receipt shall notify written specific requests, make dossier receipts
and hand one copy of the receipt to applicants when the issuing authorities
request presentation of additional documents specified in Clause 2. Article 6
of this Regulation or at the request of the applicants. In case further
verification is needed, a time limit should be stated under Clause 2. Article 8
of this Regulation.
Article 8.- Issuance
of C/O
1. C/O must be issued
as soon as possible within three (03) working days from the time applicants
submit complete and valid dossiers, except for the cases specified in Clause 2
of this Article.
2. Issuing
authorities may conduct physical inspection at production establishments when
they see that documentary inspection is not enough for issuing C/O or detect
signs of law violation with respect to previously issued C/O. Inspectors of
issuing authorities shall make written records of inspection results and
request applicants and/or exporters to sign in the written records. In case the
applicant and/or exporter refuse to sign, the inspector shall write the reason
for such refusal and sign in the written record for certification.
The time limit for
handling the issuance of C/ O
in this case must not exceed five (OS) working days from the date the
applicants submit complete dossiers.
3. The time limit for
verification must not obstruct the delivery of goods or payment by the
exporters, unless it is due to the fault of the exporters.
4. The time limit for
re-issuance of C/O stated in Article 11 of Appendix 7 must not exceed five (05)
days from the date issuing authorities receive applications for re-issuance of
C/O.
Article 9.- Refusal
to issue C/O
1. Issuing
authorities may refuse to issue
C/O in the following cases:
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b/
C/O application dossiers are inaccurate and incomplete under Article 6 of this
Regulation;
c/
Applicants have not yet submitted documents which are allowed to be submitted
later under Article 6;
d/
Dossiers contain contradictory contents;
dd/
C/O application dossiers are presented at places other than those with which
trader dossiers have been registered;
e/ C/O declarations are filled in by handwriting, contain
erasures or contents which are too dim to read, or printed in different colors;
g/
There are lawful grounds to prove that products are non-originating under this
Regulation or applicants commit fraudulent or dishonest acts in proving, the
origin of products.
2.
When refusing to issue C/O, issuing authorities shall notify in writing the
applicant of the reason for refusal within three (03) working days from the
date of refusal.
Chapter III
ORGANIZATION
OF MANAGEMENT OF C/O ISSUANCE
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1.
Only persons who have completed procedures for signature specimen registration with
the Ministry of Industry and Trade for forwarding to the ASEAN Secretary may
sign and issue C/O.
2.
C/O bearing the signatures of those who do not meet the requirement in Clause 1
of this Article shall be rejected by customs authorities of exporting countries
for preferential treatment.
Article 11.- Sole coordinating agency
The
Import-Export Department of the Ministry of Industry and Trade shall act as the
sole coordinating agency in:
1.
Guiding and inspecting the issuance of C/ O.
2.
Carrying out procedures for registering specimens of signatures of persons
competent to sign C/O and specimens of seals of issuing authorities of Vietnam
with the ASEAN Secretariat and send specimens of signatures of persons
competent to sign C/O and specimens of seals of issuing authorities of Member
States to the CEPT Agreement to Vietnamese customs authorities;
3.
Assisting the Minister of Industry and Trade in settling matters related to the
implementation of the Regulation on issuance of C/O Form D.
Article 12.- Reporting regime
1.
Issuing authorities that have been connected to the eCOSys shall update on a
daily basis information (even when they do not issue any C/ O
on the day) on the issuance of C/O. The information updating must comply with
regulations of the Ministry of Industry and Trade.
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3.
Past five (05) working days from the latest reporting deadline, if the Ministry
of Industry and Trade has not yet received the said reports, it shall
send the first reminder. After ten (10)
working days from the latest reporting deadline, if the Mlinistry of Industry
and Trade has not yet received the said reports, it shall send the second
reminder. After fifteen (15) working days after the latest reporting deadline,
if the Ministry of Industry and Trade has not yet received the said reports, it
shall issue decisions to terminate the issuance of C/O by the violating authorities
and publicly post such decisions on the Ministry's website.
Article 13.- Issuance
of C/O
1. The Office of the
Ministry of Industry and Trade shall coordinate with the Import-Export
Department in printing C/O and distributing them to issuing authorities.
2. Issuing
authorities shall directly sell C/O to applicants and make finalization of such
sale according to regulations.
Article 14.- C/O
issuance fee
Applicants shall pay
C/O issuance fees to issuing authorities. C/O issuance fees shall be set by issuing
authorities according to current regulations of the Ministry of Finance on
charges and fees. C/O issuance fee rates shall be publicly posted up at places
of issuance.
Chapter IV
SETTLEMENT
OF COMPLAINTS AND HANDLING OF VIOLATIONS
Article 15.- Complaint-settling
agencies
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Article 16.- Handling
of violations
All C/O-related
fraudulent acts shall be handled under Decree No. 06/2008/ND-CP of January 16.
2008. on sanctioning administrative violations in commercial activities, and
its related amending and supplementing documents and guiding documents. If
causing. serious consequences, depending on their seriousness, violators shall
be examined for penal liability. If causing damage to the interests of the
State or agencies, organizations or individuals, violators shall pay damages in
accordance with law.
If detecting
wrongdoings committed by issuing authorities, the Ministry of Industry and
Trade shall, depending on the seriousness of such acts, handle them in
accordance with law and may terminate the C/O issuance by these issuing
authorities.
Article 17.- Withdrawal
of C/O
Issuing authorities
will withdraw issued C/O in the following cases:
1. Exporters or
applicants forged any documents in the submitted dossiers Besides, issuing
authorities shall put the names of exporters or applicants that have forged
documents and made false declarations in the list of those subject to stricter
inspection upon C/O issuance, and at the same time notify competent agencies
for handling such forgery.
2. Issued C/O do not
comply with origin criteria.
Article 18.- Implementation
of the Regulation
In the course of
implementation, any arising problems should be promptly reported to the
Ministry of Industry and Trade for settlement at the following address:
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54 Hai Ba Trung. Hoan
Kiem. Hanoi
Tel.: 04.2205444
Fax: 042205444
Email: [email protected]
FOR
THE MINISTER OF INDUSTRY AND TRADE VICE MINISTER
Nguyen Thanh Bien
APPENDIX
1
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(Issued
together with the Regulation on issuance of C/O Form D)
In determining the
origin of products eligible for preferential
tariffs pursuant to the Agreement on the Common Effective Preferential Tariffs
Scheme for the ASEAN Free Trade
Area (below referred to as the CEPT-AFTA Agreement), the following shall be
applied:
Article 1. Definitions
1. "Member State"
means the individual parties to the CEPT-AFTA Agreement,
including Brunei Darussalam. the Kingdom of Cambodia, the Republic of
Indonesia, the Lao People's Democratic Republic. Malaysia, the Union of
Myanmar. the Republic of the Philippines, the
Republic of
Singapore, the Kingdom of Thailand, and the Socialist Republic of Vietnam:
2. "Materials"
means raw materials, ingredients, parts, components, sub-assembly and/ or goods
that are physically incorporated into another good or are subject to a process
in the production of another good;
3.
"Goods" include
materials and/or products, which can be wholly obtained or produced in a Member
State, even if they are intended for later use as materials in another
production process. For the purposes of this Appendix, the terms
"goods" and "products" can be used interchangeably;
4.
"Originating goods" means
products or materials that meet origin criteria specified in this Appendix;
5.
"Production" means
methods of obtaining goods including growing, mining, harvesting, raising,
breeding, extracting, gathering, collecting, capturing, fishing, trapping,
hunting, manufacturing, producing, processing or assembling a good;
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7. "Identical and interchangeable materials"
means materials being of the same kind and commercial
quality, possessing the same technical and physical characteristics, and which after
being incorporated into the finished product cannot be distinguished from one
another for origin purposes by virtue of any markings;
8. "Packing materials and
containers for transportation" means the goods used to protect a good during its
transportation, different from those containers or materials used for its
retail sale.
Article 2.
Origin criteria
Goods imported into
the territory of a Member Slate shall be regarded as being originating goods
which meet all conditions for preferential tariff treatment if they conform to
the origin requirements under any of the following conditions:
1. A good which is
wholly obtained or produced in the exporting Member State as defined in Article
3;
2. A good not wholly
obtained or produced in the exporting Member State, provided that it is
eligible under Article 4 or Article 5.
Article 3. Wholly
obtained or produced goods
Products defined in
Clause 1 of Article 2 shall be considered as wholly obtained or produced in the
exporting Member State in the following cases:
1.
Plant and plant products grown and harvested, picked or
gathered there;
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3. Goods obtained
from animals referred to in sub-paragraph (b) above;
4. Goods obtained
from hunting, trapping, fishing, aquaculture, gathering or capturing conducted
there:
5. Minerals and other
naturally occurring substances, not included in Clauses 1 to 4, extracted or
taken from its soil, waters, seabed or beneath its seabed:
6. Products of
sea-fishing taken by vessels registered with a Member State and entitled to fly
its flag and other products taken from the waters, seabed or beneath the seabed
outside the territorial waters: of that Member State, provided that
that Member State has the rights to exploit such waters, seabed and beneath the
seabed in accordance with international law[4]
7. Products of
sea-fishing and other marine products taken from the high seas by vessels
registered with a Member State and entitled to fly the flag of that Member
State;
8. Products processed
and/or made on board factory' ships registered with a Member State and entitled
to fly the flag of that Member State, exclusively from products referred to in
Clause 7 of this Article;
9. Articles collected
there which can no
longer perform their original purpose nor are apable of
being restored or repaired and are fit only
for disposal or recovery
of parts of raw materials, or
for recycling purposes;
10. Waste and scrap
derived from:
a) production there;
or
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11. Goods obtained or
produced in a Member State from products referred to in Clauses 1 to 10 of this
Article.
Article 4.
Not wholly obtained or produced goods
1. A good specified
in Clause 2 of Article 2 shall be regarded as originating in the Member State
where the working or processing of the good has taken place if:
a) at least 40
percent of its regional value content (also referred to as ASEAN Value Content
or RVC) originates from that Member State, which is calculated according to the
formula provided in Clause 2 of
this Article; or all non-originating materials used for producing the good have
undergone a change in tariff classification at four-digit level (change in
tariff heading- CTH);
b) Without
considering Point a, Clause 1 of this Article, a good specified in Appendix 2
shall be regarded as originating in that Member State if it satisfies the
relevant criteria set out for that good in Appendix 2.
2. The formula for
calculating RVC:
a) Direct method
RVC
=
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x
100 %
FOB
price
b) Indirect method
RVC
=
(FOB
price - Non-originating materials, pans or produce)
x
100 %
FOB
price
3. For the purpose of
calculating the regional value content provided in Clause 2:
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- The CIF value at
the time of; importation of the products: or
- The earliest
ascertained price paid for the products of undetermined origin in the territory
of the Member State where the working or processing takes place;
b) Labor cost
includes wages, remuneration and other employee benefits associated with the
manufacturing process;
c) Overhead cost
includes real property items associated with the production process (insurance,
factory rent and hire-purchase, depreciation on buildings, repair and
maintenance, taxes, interests on mortgage); hire-purchase of and interest
payments for plant and equipment; factory security; insurance (plant, equipment
and materials used in the manufacture of the goods); utilities (energy,
electricity, water and other utilities directly attributable to the production
of the good); research, development, design and engineering; dies, molds,
tooling and the depreciation, maintenance and repair of plant and equipment;
royalties or licenses (in connection with patented machines or processes used
in the manufacture of the good or the right to manufacture the good); inspection
and testing of materials and the goods; storage and handling in the factory;
disposal of recyclable wastes; and cost elements in computing the value of raw
materials, i.e. port and clearance charges and import duties (if any) and other
similar costs;
d) FOB price means
the free-on-board value of the good, inclusive of the cost of transport to the
port or site of final shipment abroad. FOB price shall be determined by adding
the value of materials, production cost, profit and other costs:
dd) Other costs refer
to the costs incurred in placing the goods in the ship for export, including
but not limited to. domestic transport costs, storage and warehousing, port
handling, brokerage fees, service charges, etc.
a. Member States
shall determine and adhere to only one method of calculating the regional value
content. Member States shall be given the flexibility to change their
calculation method provided that such change is notified to the AFTA Council at
least six (6) months prior to the adoption of the new method. Any verification
to the ASEAN value content calculation by the importing Member State shall be
done on the basis of the method used by the exporting Member State.
5. Vietnam uses the
indirect method for calculating the ASEAN value content.
6. In determining the
costs specified in Clause 3 of this Article, Member States shall closely adhere
to the guidelines for costing methodologies set out in Appendix 5.
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Article 5. Accumulation
1. A good originating
in a Member State, which is used in another Member State as materials for a
finished good eligible for preferential tariff treatment, shall be considered
to be originating in the latter Member State where working or processing of the
finished good has taken place.
2. If the ASEAN value
content of the material is less than 40 per cent, the qualifying ASEAN value
content will be cumulated to the local content provided that it is equal to or
more than twenty (20) percent. The implementing guidelines are provided in
Appendix 6.
Article 6. Minimal
operations and processes
1.
Operations or processes undertaken, by themselves or in
combination with each other for the purposes listed below, are considered to be
minimal and shall not be taken into account in determining whether a good has
been originating in one Member State:
a) ensuring
preservation of goods in good condition for the purposes of transport or
storage;
b) facilitating
shipment or transportation;
c) packaging or presenting
goods for sale.
2. A good originating
in the territory of a Member State will retain its initial originating status,
when exported from another Member State, where operations undertaken have not
gone beyond those referred to in Clause 1 of this Article.
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1. Preferential
tariff treatment shall be
applied to a good fully
satisfying the requirements set out in this Appendix and which is consigned
directly between the territories of the exporting Member State and the importing
Member State.
2. The following
shall also be considered as consigned directly from the exporting Member State
to the importing Member State:
a) If the goods are
transported by passing through the territory of any other Member State;
b) If the goods are transported
without passing through the territory of any non-ASEAN Member State;
c) The goods whose
transport involve transit through one or more intermediate non-ASEAN Member
State with or without transshipment or temporary storage in such countries,
provided that:
- The transit entry
is justified for geographical reason or by consideration related exclusively to
transport requirements:
- The goods have not
entered into trade or consumption there; and
-The goods have not
undergone any operation there other than unloading and reloading or any
operation required to keep them in good condition.
Article 8.
De Minimis
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2. The value of
non-originating materials referred to Clause 1 shall, however, be included in
the value of non-originating materials for any applicable ASEAN Value Content
requirement for the good
Article 9.
Provisions on packages and packing materials
1.
Packaging and packing materials for retail sale:
a) If the good is
subject to the ASEAN value content criterion for origin determination, the
value of the packaging and packing materials for retail sale shall be taken
into account in its origin assessment, where the packaging and packing
materials are considered to be forming a whole with the good.
b) In case Point a.
Clause I of this Article is not applicable, the packaging and packing materials
for retail sale, when classified together with the packaged good shall not be
taken into account in considering whether all non-originating materials used in
the manufacture of a product fulfils the criterion corresponding to a change of
tariff classification of the said good.
2. The containers and
packing materials exclusively used for the transport of a good shall not be
taken into account for determining the origin of the said good.
Article 10. Accessories,
spare parts and tools
The origin of
accessories, spare parts, tools and instructional or other information
materials presented with a good shall not be taken into account in determining
the origin of the good, provided that such accessories, spare parts, tools and
information materials are classified with the goods and their customs duties
are collected with the good by the importing Member State.
Article 11. Neutral
elements
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1. Fuel and energy;
2. Tools, dies and
molds;
3.
Spare parts and materials used in the maintenance of
equipment and buildings:
4. Lubricants,
greases, compounding materials and other materials used in production or used
to operate equipment and buildings:
5. Gloves, glasses,
footwear, clothing, safety equipment and supplies;
6. Equipment, devices
and supplies used for testing or inspecting the good;
7. Catalyst and
solvent:
8. Any other goods
that are not incorporated into the good but of which use in the production of
the good can reasonably be demonstrated to be a part of that production.
Article 12.
Identical and interchangeable materials
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2. Once a decision has
been taken on the inventory management method, that method shall be used
throughout the fiscal year.
Article 13.
Certificate of origin. Form D
A claim that a good
shall be accepted as eligible for preferential tariff treatment shall be
supported by a certificate of origin. Form D issued by a government authority
designated by the exporting Member State and notified to the other Member
States to the CEPT-AFTA Agreement in accordance with the Operational
Certification Procedures, as set out in Appendix 7.
Article 14.
Review and modification
This Appendix may be
reviewed and modified as and when necessary upon request of a Member State and
may be open to such reviews and modifications as may be agreed upon by the AFTA
Council.
APPENDIX 4
EXPLANATORY NOTES TO APPENDIX 1
(Issued
together with the Regulation on issuance of C/O Form D)
Article 1.
Formula for calculating the regional value content
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Article 2.
Substantial transformation criterion
1. A country of
origin is that in which the last substantial transformation or process was
performed resulting in a new product. Thus, materials which underwent a
substantial transformation in a country shall be a product of that country.
2. A product in the
production of which two or more countries are involved shall be regarded as
originating in the country in which the last substantial transformation or
process was performed, resulting in a new product
3. A product will be
considered to have undergone a substantial transformation or process if it has
been transformed by means of substantial manufacturing or processing into a new
and different article of commerce.
4. A new and
different article of commerce will usually result from manufacturing or
processing operations if there is a change in:
a) Commercial
designation or identity:
b) Fundamental
character: or
c) Use purpose.
5. In determining
whether a product has been subjected to substantial manufacturing or processing
operations, the following will be considered:
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b) The time involved
in the manufacturing or processing operations in the country in which they are
performed;
c) The complexity of
the manufacturing or processing operations in the country in which they are
performed;
d) The level or
degree of skill and/or technology required in the manufacturing process or
processing stages.
Article 3. Specific
rules applicable for textile and textile products
1. Textile and
textile products covered under these Rules are set out in Appendix 3.
2. Textile material
or article shall be deemed to be originating in a Member State, when it has
undergone, prior to the importation to another Member State, any of the
following:
a) Petrochemicals
which have undergone the process of polymerization or polycondensation or any
chemicals or physical processes to form a polymer;
b) Polymer which has
undergone the process of melt spinning or extrusion to form a synthetic fiber;
c) Spinning fiber
into yarn;
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dd) Cutting fabric
into parts and the assembly of those parts into a completed article;
e) Dyeing of fabric,
if it is accompanied by
any finishing operation which has the effect of rendering the dyed good
directly usable;
g) Printing of
fabric, if it is accompanied by any finishing operation which has the effect of
rendering the printed good directly usable;
h) Impregnation or
coating when such treatment leads to the manufacture of a new product falling
within certain headings of customs tariffs:
i) Embroidery which
represents at least five percent of the total area of the embroidered good.
3. An article or
material shall not be considered to be originating in the territory of a Member
State by virtue of
merely having undergone any of the
following:
a) Simple combining
operations, labeling, pressing, cleaning or dry cleaning or packaging
operations, or any combination thereof;
b) Cutting to length
or width and hemming, stitching or overlocking fabrics which are readily
identifiable as being intended for a particular commercial use;
c) Trimming and/or
joining together by sewing, looping, linking, attaching of accessory articles
such as straps, bands, beads, cords, rings and eyelets:
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dd) Dyeing or
printing of fabrics or yarns.
4. The following
items made of non-originating textile materials shall be considered as
originating good if it has undergone the processes identified in Clause 2 but
not merely performing the processes identified in Clause 3:
a) Handkerchiefs:
b) Shawls, scarves,
veils, and the like;
c) Traveling rugs and
blankets:
d) Bed linen, pillow
cases, table linen, toilet linen and kitchen linen;
e) Sacks and bags, of
a kind used for packing of goods;
f) Tarpaulins,
awnings and sunblinds;
g) Floor cloths, and
dish cloths and other similar articles simply made up.
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1. Wood-based
products covered under these rules are products classified under:
a) Harmonized System
Chapter 44 headings
b) Harmonized System
headings 94.01 thru 94.03 and 94.06
2. An article or
material shall not be considered to be originating in a Member State by virtue
of merely having undergone any of the following:
a) Trimming,
cutting-to-size, sanding, attaching accessory article such as decorative
upholstery material; or
b) Over-laying and/or
coated either by chemical material or natural material.
APPENDIX
5
PRINCIPLES FOR CALCULATING ASEAN VALUE
CONTENT
(Issued
together with the Regulation on issuance of C/O Form D)
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1. Materiality: all
cost material to the evaluation, assessment and determination of origin:
2. Consistency:
costing allocation method should be consistent unless justified by commercial
reality.
3.
Reliability: costing information
must be reliable and supported by appropriate information;
4.
Relevance: costs must be
allocated based on objective and quantifiable data;
5.
Accuracy: costing methodology
should provide an accurate representation of the cost element in question;
6.
Application of General Accepted Accounting Principles of the exporting Member
State: costing information must be prepared in
accordance with the general accepted accounting principles and this includes
the avoidance of double-counting of cost items;
7.
Currency: updated costing
information from existing accounting and costing records of companies should be
used to calculate origin.
II. PRINCIPLES FOR
COSTING METHODOLOGIES
1. Actual Costs: The
basis for actual costs should
be defined by the company. Actual costs should include all direct and indirect
costs incurred in producing the product.
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3. Standards Costs:
the basis for standards costs should be indicated. Companies should provide
evidence that the costs are used for accounting purposes.
4. Average/Moving
Average Costs: average costs may be used if justified: the basis for
calculating average costs,
including time period, etc.
should be
highlighted. Companies should provide variance analysis
and proof during the period origin is claimed to indicate accuracy of average
costs.
5. Fixed Costs - fixed costs
should be apportioned according to sound cost accounting principles. They
should be a representative reflection of unit costs for the company in the
particular period in question. The method for apportionment should be
indicated.
APPENDIX
6
IMPLEMENTING
GUIDELINES FOR PARTIAL CUMULATION
(Issued
together with the Regulation on issuance of C/O Form D)
For the purpose of
implementing Clause 2, Article 5 of Appendix 1:
1.
A good shall be regarded to be eligible for
partial accumulation, if at least 20 percent of the regional value content
(RVC) of the good is originating in the Member State where the working or
processing of the good has taken place;
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3. A good exported
under this arrangement is not eligible for CEPT preference of the importing
Member State;
4. A good exported
under this arrangement shall be accompanied by a
valid Certificate of Origin Form D duly
and prominently marked "Partial Accumulation";
5. The relevant
sections of the Operational Certification Procedures, including Article 17 on
verification, are applicable to certificate (s) of origin Form D issued for
partial accumulation purposes.
APPENDIX
7
PROCEDURES FOR THE
ISSUANCE AND VERIFICATION OF C/O
(Issued
together with the Regulation on issuance of C/O Form D)
For the purpose of
implementing the Rules of Origin for the CEPT-AFTA Agreement, the following
procedures for the issuance and verification of C/O Form D and the other
related administrative measures, shall be observed.
DEFINITIONS
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"Back-to-back
C/O" means a C/O issued by
an intermediate exporting Member State based on the C/O issued by the first
exporting Member State:
"Customs
authority" means
the competent authority that is responsible under the law of a Member State for
the administration of customs laws and regulations4[5];
"Exporter"
means a natural or legal person located in the territory
of a Member State where a good is exported from by such a person:
"Importer"
means a natural or legal person located in the territory of a Member State
where a good is imported into by such a person;
"Issuing
authority" means
the Government authority of the exporting Member State designated to issue a
C/O Form D and notified to all the other Member States in accordance with this
Appendix;
"Producer"
means a natural or legal person who carries out
production as set out in Article 1 of Appendix 1 of this Regulation
ISSUING
AUTHORITIES
Article 2.
1. Each Member State
shall provide a list of the names, addresses, specimen signatures and specimen
of official seals of its issuing authorities, in hard copy and soft copy
format, through the ASEAN Secretariat for dissemination to other Member States
in soft copy format. Any change in the said list shall be promptly provided in
the same manner.
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Article 3.
For the purpose of
determining originating status, the issuing authorities have the right to
request supporting documentary evidence or to carry out check(s) considered
appropriate in accordance with respective domestic laws and regulations of a
Member State.
Article 4.
1. The producer
and/or exporter of the good.
or its authorized
representative, shall apply to the issuing authority, in accordance with the
Member State's domestic laws and regulations, requesting pre-exportation
examination of the origin of the good. The result of the examination, subject
to review periodically or whenever appropriate, shall be accepted as the
supporting evidence in determining the origin of the said good to be exported
thereafter. The pre-exportation examination may not apply to the good of which,
by its nature, origin can be easily determined.
2. For locally
procured materials, self-declaration by the final manufacturer shall be used as
a basis when applying for the issuance of the C/O
Form D.
C/O
APPLICATIONS
Article 5.
At the time of
carrying out the formalities for exporting the products under preferential
treatment, the exporter or his authorized representative shall submit a written
application for the C/O Form
D together with
appropriate supporting documents proving that the products to be exported
qualify for the issuance- of a C/O Form
D.
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Article 6.
The issuing authority
shall carry out proper examination, in accordance with the domestic laws and
regulations of its country, upon each application for a C/O
Form D to ensure that:
1. The application
and the C/O Form D
are duly completed and signed by the authorized
signatory;
2. The origin of the
product is in conformity with the Rules of Origin provided in Appendix 1;
3. The other
statements of the C/O Form D correspond to supporting documentary evidence
submitted;
4. Description,
quantity and weight of goods, marks and number of packages, number and kinds of
packages, as specified, conform to the products to be exported;
5. Multiple items
declared on the same C/O Form D shall be allowed provided that each item
qualifies separately in its own right.
ISSUANCE OF
C/O FORM D
Article 7.
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2. The C/O Form D
comprises one original and two carbon copies.
3. Each C/O Form D
bears a reference number separately given by each office of issuance.
4. The Original copy
shall be forwarded by the exporter to the importer for submission to the
customs authority at the port or place of importation. The duplicate shall be
retained by the issuing authority in the exporting Member State. The triplicate
shall be retained by the exporter.
5. In case a C/O Form
D is rejected by the customs authorities of the importing Member State, the
subject C/O Form D shall be marked accordingly in Box 4 and the original C/O
Form D shall be returned to the issuing authority within a reasonable period
not exceeding sixty (60) days. The issuing authority shall be duly notified by
the customs authorities of the importing Member State of the grounds for the
denial of tariff preference.
6. In case C/O Form D
are not accepted, as stated in Clause 5. the importing Member State should
accept the clarifications made by the issuing authorities to accept the C/O
Form D and reinstate the preferential treatment. The clarifications should be
detailed and exhaustive in addressing the grounds for denial of preference
raised by the importing Member State.
Article 8.
To implement the
provisions of Article 2 of Appendix 1, the C/O Form D issued by the final
exporting Member State must indicate the relevant applicable origin criterion
in Box 8.
Article 9.
Neither erasures nor
superimpositions shall be allowed on the C/O Form D. Any alteration shall be
made by:
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2. Issuing a new C/O
Form D to replace the erroneous one.
Article 10.
1. The C/O Form D
shall be issued by the issuing authorities of the exporting Member State at the
time of exportation or soon thereafter whenever the products to be exported can
be considered originating in that Member State within the meaning of Appendix
1.
2. The issuing
authority of the intermediate Member State may issue a back-to-back C/O if an
application is made by the exporter, provided that:
a/ A valid original
C/O Form D is presented. In the case where no original C/O Form D is presented,
its certified true copy shall be presented:
b/ The back-to-back
C/O issued should contain some of the same information as the original C/O Form
D. In particular, every column in the back-to-back C/O should be completed. FOB
price of the intermediate Member State in Box 9 should also be reflected in the
back-to-back C/O;
c/ For partial export
shipments, the partial export value shall be shown instead of the full value of
the original C/O Form D. The intermediate Member State will ensure that the
total quantity re-exported under the partial shipment does not exceed the total
quantity of the C/O Form D from the first Member State when approving the
back-to-back C/O to the exporters;
d/ In case the
information is not complete and/ or circumvention is suspected, the final
importing Member State(s) could request that the original C/O Form D be
submitted to their respective customs authority;
dd/ Verification
procedures as set out in Article 17 are also applied to Member State issuing
the back-to-back C/O.
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Article 11.
In case of theft,
loss or destruction of a C/O Form D. the exporter may apply in writing to the
issuing authorities for a certified true copy of the original and the
triplicate to be made out on the basis of the export documents in their
possession bearing the endorsement of the words "CERTIFIED TRUE COPY"
in Box 12. This copy shall bear the date of issuance of the original C/O The
certified true copy of a C/O Form D shall be issued no longer than one year
from the date of issuance of the original C/O Form D.
SUBMISSION
OF C/O FORM D
Article 12.
For the purpose of
claiming preferential tariff treatment, the importer shall submit to the
customs authority of the importing Member State at the time of import, a C/O
Form D including supporting documents (i.e. commercial invoices and the through
Bill of Lading issued in the territory of the exporting Member State) and other
documents as required in accordance with the domestic laws and regulations of
the importing Member State.
Article 13. The
following time limit for the presentation of the C/O Form D shall be observed-
1. C/O Form D must be
submitted to the customs authorities of the importing Member State within one
(01) year from the date of issuance by the issuing authorities of the exporting
Member State.
2. In case the C/O
Form D is submitted to the customs authorities of the importing Member State
after the expiration of the time limit for its submission specified in Clause 1
of this Article, such C/O Form D is still to be accepted when failure to
observe the time limit results from force
majeure or other valid causes beyond the control of
the exporter: and
3. In all cases, the
customs authorities in the importing Member State may accept such C/O Form D
provided that the products have been imported before the expiration of the time
limit of the said C/O Form D.
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In the case of
consignments of products originating in the exporting Member State and not
exceeding USD 200 (two hundred US dollars) FOB, the production of C/O Form D
shall be waived and the use of simplified declaration by the exporter that the
products in question have originated in the exporting Member State will be
accepted Products sent through the post not exceeding USD 200 FOB shall also be
similarly treated.
Article.15.
1. Where the origin of
the product is not in doubt, the discovery of minor discrepancies, such as
tariff classification differences between the issuing and receiving
authorities, or between the statements made in the C/O Form D and those made in
the documents submitted to the customs authorities of the importing Member
State for the purpose of carrying out the formalities for importing the
products shall not ipso-facto
invalidate the C/O Form D, if it does in fact correspond
to the products actually imported.
2. In case the exporting
Member State and importing Member State have different tariff classification
for a good subject to preferential tariffs, the goods shall be released at the
higher CEPT rate and no penalty or other charges shall be imposed. Once the
classification differences have been resolved, the correct CEPT rate shall be
applied and any overpaid duty shall be refunded, in accordance with relevant
rules and regulations of the importing Member State, after the issue has been
resolved.
3. For multiple items
declared under the same C/O Form D. a problem encountered with one of the items
listed will not affect or delay the grant of preferential treatment and customs
clearance of the remaining items listed in the C/O Form D. Point c. Clause 1 of
Article 17 may be applied to the problematic items.
RECORD
KEEPING
Article
16.
1. For the purposes
of the verification process pursuant to Article 17, the producer or exporter
applying for a C/O Form D shall, subject to the domestic laws and regulations
of the exporting Member State, keep its supporting records for application for
three (3) years from the date of issuance of the C/O Form D.
2. The application
for C/O Form D and all documents related to such application shall be retained
by the issuing authorities for three (3) years from the date of issuance.
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4. Any information
communicated between the Member States concerned shall be treated as
confidential and shall be used for the validation of C/O Form D purposes only.
Article 17.
1. The importing
Member State may request the issuing authority of the exporting Member State to
conduct a retroactive check at random and/or when it has reasonable doubt as to
the authenticity of the document or as to the accuracy of the information
regarding the true origin of the products in question or of certain parts thereof.
Upon such request, the issuing authority of the exporting Member State shall
conduct a retroactive check on a producer/exporter's cost statement based on
the current cost and prices, within a six-month timeframe, specified at the
date of exportation subject to the following conditions:
a) The request for
retroactive check shall be accompanied with the C/O Form D concerned and shall
specify the reasons and any additional information suggesting that the
particulars given on the said C/O Form D may be inaccurate, unless the
retroactive check is requested on a random basis;
b) The issuing
authorities receiving a request for retroactive check shall respond to the
request promptly and reply within ninety (90) days after the receipt of the
request;
c) The customs
authorities of the importing Member State may suspend the provisions on
preferential treatment while awaiting the result of verification. However, it
may release the products to the importer subject to any administrative measures
deemed necessary, provided that they are not held to be subject to import
prohibition or restriction and there is no suspicion of fraud:
d) The issuing
authority shall promptly transmit the results of the verification process to the
importing Member State which shall then determine whether or not the subject
good is originating. The entire process of retroactive check including the
process of notifying the issuing authority of the exporting Member State the
result of determination whether or not the good is originating shall be completed
within 180 days.
While awaiting the
results of the retroactive check. Point c. Clause 1 of this Article shall be
applied.
2. If the importing
Member State is not satisfied with the outcome of the retroactive check stated
in Clause 1 of this Article, it may. under exceptional cases, request
verification visits to the exporting Member State.
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i) Deliver a written
notification of its intention to conduct the verification visit to:
- The exporter or
producer whose premises are to be visited:
- The issuing
authority of the Member State in whose territory the verification visit is to
occur;
- The customs
authority of the Member State in whose territory the verification visit is,to
occur:
- The importer of the
product subject of the verification visit.
ii)The written
notification mentioned at Point a(i), Clause 2 of this Article is as
comprehensive as possible including, among others:
- The name of the
customs authority issuing
the notification;
- The name of the
exporter or producer whose premises are to be visited;
- The proposed date
for the verification visit;
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- The names and
designation of the officials performing the verification visit;
iii) Obtain the
written consent of the exporter or producer whose premises are to be visited.
b) When a written
consent from the exporter
or/producer is not obtained w ithin thirty (30) days upon
receipt of the notification pursuant to Point a (i), Clause 2 of this Article,
the notifying Member State, may deny preferential treatment to the product that
would have been subject of the verification visit.
c) The issuing
authority receiving the notification may postpone the proposed verification
visit and notify the importing Member State of such intention. Notwithstanding
any postponement, any verification visit shall be carried out within sixty days
(60) days from the date of such receipt, or for a longer period as the
concerned Member States may agree.
d)
The Member State
conducting the verification visit shall provide the exporter/ producer whose
product is the subject of the verification and the relevant issuing authority
with a written determination of whether or not the subject product qualifies as
an originating product
dd) Any suspended
preferential treatment shall be reinstated upon the written determination
referred to at Point d. Clause 2 of this Article that the good qualifies as an
originating good.
e) The exporter or
producer will be allowed thirty (30) days, from receipt of the written
determination, to provide in writing comments or additional information
regarding the eligibility of the product. If the product is still found to be
non-originating, the final written determination will be communicated to the
issuing authority within thirty (30) days from receipt of the
comments/additional information from the exporter/producer.
g)The verification
visit process, including the actual visit and determination of whether the
subject product is originating or not. shall be carried out and its results
communicated to the issuing authorities within a maximum of 180 days.
While awaiting the
results of the verification visit. Point c. Clause 1 of this Article on the
suspension of preferential treatment shall be applied.
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SPECIAL CASES
Article 18.
For the purpose of
implementing Point c, Clause 2, Article 7 of the Appendix 1, when
transportation is effected through the territory of one or more non-Member
State, the following shall be produced to the customs authorities of the
importing Member State:
1, A through Bill of
Lading issued in the exporting Member State:
2. A C/O Form D
issued by the relevant issuing authority of the exporting Member State;
3. A copy of the
commercial invoice;
4. Supporting
documents in evidence that the requirements at Point c, Clause 2, Article 7 of Appendix
1 are complied with.
Article 19.
1. Products sent from
an exporting Member State for exhibition in another Member State and sold
during or after the exhibition for importation into a Member State may benefit
from the CEPT Scheme on the condition that the products meet the requirements
of the Rules of Origin in Appendix 1 provided that it is shown to the
satisfaction of the customs authorities of the importing Member State that:
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b) The exporter has
sold the goods or transferred them to a consignee in the importing Member
State:
c) The products have
been consigned during the exhibition or immediately thereafter to the importing
Member State in the state in which they were sent for the exhibition.
2.
For the purpose of implementing the provisions in Clause
1 above, the C/O Form D must
be produced to competent authorities of the importing Member State. The name
and address of the exhibition must be indicated. The competent authorities of
the Member State where the exhibition took place may provide evidence together
with supporting documents prescribed in Clause 4 of
Article 18
for the identification of the products and the conditions
under which they were exhibited.
3. Clause 1 of this
Article applies to any trade, agricultural or crafts exhibition, fair or
similar show or display in shops or business premises with the view to the sale
of foreign products and where the products remain under customs control during the
exhibition.
Article 20.
Relevant customs
authorities in the importing Member State shall accept CO Form D in cases where
the sales invoice is issued either by a company located in a non-Member State
or by an ASEAN exporter for the account of the said company, provided that the
product meets the requirements set out in Appendix 1.
ACTION AGAINST
FRAUDULENT ACTS
Article 21.
1. When it is
suspected that fraudulent acts in connection with the C/O Form D have been
committed, the Government authorities concerned shall cooperate in the action
to be taken in the respective Member State against the persons involved.
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SETTLEMENT OF
DISPUTES
Article 22.
1. In the case of a
dispute concerning origin determination, classification of products or other
matters, the Government authorities concerned
in the importing and exporting Member States shall
consult each other with a view to resolving the dispute, and the result shall
be reported to the other Member
States for information.
2. In the case where
no settlement can be reached bilaterally, the issue concerned shall be decided
by the Senior Economic Officials Meeting.
3. The ASEAN Protocol
on Enhanced Dispute Settlement Mechanism shall apply in relation to any dispute
arising from, or any difference between Member States concerning the
interpretation or application of the CEPT Rules of Origin and its Operational
Procedures for Issuance and Verification of C/O Form D.
APPENDIX 13
LIST OF ISSUING AUTHORITIES
(Issued
together with the Regulation on issuance of C/O Form D)
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Names of authorities
Code
1
Hanoi
Regional Export-Import Management Section
01
2
Ho
Chi Minh City Regional Export-Import Management Section
02
3
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03
4
Dong
Nai Regional Export-Import Management Section
04
5
Hai
Phong Regional Export-Import Management Section
05
6
Binh
Duong Regional Export-Import Management Section
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7
Vung
Tau Regional Export-Import Management Section
07
8
Lang
Son Regional Export-Import Management Section
08
9
Quang
Ninh Regional Export-Import Management Section
09
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Hanoi
Industrial Parks and Export Processing Zones Management Board
31
11
Ho
Chi Minh City Industrial Parks and Export Processing Zones Management Board
32
12
Hai
Phong Industrial Parks and Export Processing Zones Management Board
33
13
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34
14
Thai
Nguyen Industrial Parks Management Board
35
15
Phu
Tho Industrial Parks Management Board
36
16
Bac
Ninh Industrial Parks Management Board
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17
Quang
Ninh Industrial Parks Management Board
40
18
Hai
Duonc Industrial Parks Management Board
41
19
Nghi
Son Economic Zone Management Board
42
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Nche
An Industrial Parks Management Board
43
21
Vung
Ang Economic Zone Management Board
44
22
Thua
Thien Hue Industrial Parks Management Board
45
23
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46
24
Quang
Ngai Industrial Parks Management Board
47
25
Binh
Dinh Industrial Parks Management Board
48
26
Phu
Yen Industrial Parks Management Board
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27
Van
Phong Economic Zone Management Board. Khanh Hoa province
50
28
Binh
Thuan Industrial Parks Management Board
51
29
Done
Nai Industrial Parks Management Board
53
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Ba
Ria - Vung Tau Industrial Parks Management Board
54
31
Long
An Industrial Parks Management Board
55
32
Tay
Ninh Industrial Park Management Board
56
33
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57
34
Tien
Giang Industrial Parks Management Board
58
35
Can
Tho Export Processing Zones and Industrial Parks Management Board
59
36
Dong
Thap Industrial Parks Management Board
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37
Vinh
Long Industrial Parks Management Board
61
38
Dung
Quat Economic Zone Management Board
62
39
Vietnam
- Singapore Industrial Park Management Board
63
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Lao
Bao Special Economic-Trade Zone Management Board
64
41
Nhon
Hoi Economic Zone Management Board
65
42
Bac
Giang Industrial Parks Management Board
66
43
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67
44
Bo
Y International Border Gate Economic Zone Management Board
68
45
Ho
Chi Minh City Hi-tech Park Management Board
69
46
Hung
Yen Industrial Parks Management Board
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1
"Other products" refers to minerals and other naturally occurring
substances extracted from the waters, seabed or beneath the seabed outside the
territorial waters.
2. For
products of sea-fishing obtained from outside the territorial waters (e.g..
Exclusive Economic Zone), originating status would be conferred to that Member
State with whom the vessels used to obtain such products are registered with
and whose flag is flown in the said vessel, and provided that Member State has
the rights to
exploit it under international law.
3.
In accordance with international law. registration of vessels could only be
made in one Member State materials.
41
Such laws and regulations administered and enforced by the customs authority of
each Member State concerning the importation, exportation and transit of goods
as they relate to customs duties, charges and other taxes or prohibitions,
restrictions and controls with respect to the movement of controlled items
across the boundary of the customs authority of each Member State..