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THE
MINISTRY OF INDUSTRY AND TRADE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
01/2010/TT-BCT
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Hanoi,
January 08, 2010
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CIRCULAR
ON IMPLEMENTATION OF THE RULES OF ORIGIN PROVIDED IN THE
AGREEMENT ON COMMON EFFECTIVE PREFERENTIAL TARIFF (CEPT) SCHEME FOR THE ASEAN
FREE TRADE AREA (AFTA)
THE MINISTRY OF INDUSTRY AND TRADE
Pursuant to the Government's Decree
No. 189/2007/ND-CP of December 27, 2007, defining the functions, tasks, powers
and organizational structure of the Ministry of Industry and Trade;
Pursuant to the Agreement on Common Effective Preferential Tariff (CEPT) Scheme
for the ASEAN Free Trade Area (AFTA);
Pursuant to the Government's Decree No. 19/2006/ND-CP of February 20, 2006,
detailing the Commercial Law regarding origin of goods;
The Minister of Industry and Trade prescribes the implementation of the rules
of origin provided in the Agreement on Common Effective Preferential Tariff
(CEPT) Scheme for the ASEAN Free Trade Area (AFTA) as follows:
Chapter I
GENERAL PROVISIONS
Article 1.
Goods eligible for issuance of certificates of origin form D
A good eligible for issuance of
certificates of origin form D (referred to as C/O in this Circular) means an
originating good under the provisions of Annex 1 to this Circular for which a
C/O is issued by a C/O form D issuer.
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1. The Agreement on Common
Effective Preferential Tariff (CEPT) Scheme for the ASEAN Free Trade Area
(AFTA) among the Southeast Asian nations (below referred to as the CEPT
Agreement) is the one officially concluded on January 28, 1992, in Singapore.
2. Vietnamese issuer of C/O form
D (referred to as C/O issuer in this Circular) means organizations specified in
Annex 12.
3. Applicant for C/O form D
(referred to as C/O applicant in this Circular), means an exporter, producer or
a lawfully authorized representative of an exporter or producer.
4. eCOSys means Vietnam's
certificate of origin management and issuance electronic system at http://www.ecosys.gov.vn.
Article 3.
Responsibilities of C/O applicants
C/O applicants shall:
1. Register trader dossiers with
C/O issuers under Article 5;
2. Submit C/O application
dossiers to C/O issuers;
3. Prove that their exports
satisfy all origin requirements, and facilitate the verification of the origin
of these goods by C/O issuers;
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5. Promptly report to C/O
issuers at which traders have filed C/O applications on C/O issued by
Vietnamese C/O issuers which are rejected by importing countries (if any);
6. Facilitate the verification
by C/O issuers at production establishments or places where exports are raised,
grown, harvested and processed;
7. Prove the authenticity of the
origin of exported goods at the request of the Ministry of Industry and Trade,
C/O issuers or customs offices of Vietnam or importing countries.
Article 4.
Responsibilities of C/O issuers
C/O issuers shall:
1. Give guidance to C/O
applicants upon request;
2. Receive and examine trader
dossiers and C/O application dossiers;
3. Verify the actual origin of
goods when necessary;
4. Issue C/O when goods satisfy
the origin requirements in this Circular and C/O applicants observe all
provisions of Article 3;
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6. Settle complaints related to
C/O issuance according to their competence;
7. Re-verify the origin of
exports at the request of competent authorities of importing countries;
8. Exchange information relating
to the C/O issuance with other C/O issuers:
9. Make reports and participate
in all professional training courses on origin and respond to other requests
under regulations of the Ministry of Industry and Trade.
Chapter II
PROCEDURES FOR C/O
ISSUANCE
Article 5.
Registration of trader dossiers
1. C/O applicants may be
considered for C/O issuance only at places where they have registered their
trader dossiers and after they have completed trader dossier registration
procedures. A trader dossier comprises:
a/ Registration of the specimen
of the signature of the person authorized to sign the CI O application and the
specimen of the seal of the trader (Annex 11. not printed herein);
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c/ Tax identification number
registration certificate (a certified true copy);
d/ A list of production
establishments (if any) of the trader (Annex 10. not printed herein).
2. Before the C/O application,
any change in the trader dossier shall be notified to the C/O issuer with which
this dossier has been registered. A trader dossier shall be updated once every
two (2) years.
3. In case of a force majeure
circumstance or for a plausible reason, if wishing to get a C/O issued by a C/O
issuer different from that with which it has registered the trader dossier, a
C/O applicant shall provide written plausible reasons for the non-application
at the C/O issuer with which it has registered the trader dossier, and register
the trader dossier with the new C/O issuer.
Article 6.
C/O application dossiers
1. A C/O application dossier
comprises:
a/ The C/O application form
(Annex 9, not printed herein), which has been fully and duly filled in as
guided in Annex 8 (not printed herein);
b/ The C/O form (Annex 7, not
printed herein), which has been fully filled in;
c/ The customs declaration for
which customs procedures have been completed. This declaration is not required
for exported goods which are not subject to customs declaration under law;
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e/ The bill of lading or
equivalent document in case the trader has no bill of lading. When a
back-to-back C/O is issued for the whole goods lot or part of the goods lot
brought from a non-tariff zone into the domestic market, this document may be
exempted if the trader does not actually hold it.
Pending the availability of the
customs declaration for which customs procedures have been completed and the
bill of lading (or any document equivalent to bill of lading), the C/O
applicant may submit these documents later within fifteen (15) working days
from the date of receipt of C/O.
2. When finding it necessary,
the C/O issuer may request the C/O applicant to supply additional documents
related to the exports, such as customs declaration of imported materials and
auxiliary materials; export permit (if any); purchase and sale contract;
value-added invoices on the purchase and sale of domestic materials and
auxiliary materials; samples of materials and auxiliary materials or exports;
description of the manufacturing process with HS headings of input materials
and products (for change in tariff classification (CTC) criteria or good
manufacturing or processing operation criteria); or calculation of the regional
value content (RVC) (for RVC criteria); and other documents proving the origin
of exports.
3. The papers specified at
Points c, d and e of Clause 1, and in Clause 2, may be copies bearing the
signatures and true-copy stamps of traders* representatives at law or
authorized persons, together with their originals for comparison at the request
of C/O issuers when necessary.
4. For traders joining the
eCOSys, their persons authorized to sign C/O applications shall declare data
via the eCOSys. give their e-signatures and automatically transmit them to C/O
issuers. After examining application dossiers on the eCOSys, if agreeing to
issue C/O, C/O issuers shall notify such via the eCOSys to applicants to submit
complete dossiers on paper to C/O issuers for comparison before issuing C/O.
Article 7.
Receipt of C/O application dossiers
When C/O applicants file their
dossiers, record officers shall receive and examine these dossiers, then notify
C/O applicants in dossier receipts or other written forms of any of the
following actions:
1. Issuance of C/O under Article
8;
2. Request for supplementation
of documents under Article 6;
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a/ C/O applicants fail to
register trader dossiers under Article 5;
b/ C/O application dossiers are
inaccurate or incomplete as required in Article 6;
c/ C/O applicants have not yet submitted
documents which are allowed to be submitted later under Article 6;
d/ Dossiers contain
contradictory details;
e/ C/O application dossiers are
filed with offices other than those with which trader dossiers have been
registered;
f/ C/O declarations are filled
in by handwriting, or contain erasures or contents which are unreadable, or
printed in multicolor inks;
g/ There are lawful grounds to
evidence that goods are non-originating under this Circular or C/O applicants
have committed fraudulent or dishonest acts in proving the origin of their
goods.
Article 8.
Issuance of C/O
1. A C/O shall be issued within
three (3) working days after the C/O applicant files a complete and valid
dossier, except the cases specified in Clause 2 of this Article.
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The time limit for issuing or
refusing to issue a C/O in this case is five (5) working days after the C/O
applicant files a complete dossier.
3. In the course of
consideration for C/O issuance, if detecting goods which fail to satisfy origin
requirements or C/O application dossiers which are incomplete or invalid, C/O
issuers shall notify such to C/O applicants under Clause 2 or Clause 3, Article
7.
4. The verification must not
impede the delivery of goods or payment by exporters, unless it is due to the
fault of exporters.
Article 9.
Withdrawal of issued C/O
C/O issuers may withdraw C/O
they have issued in the following cases:
1. Exporters or C/O applicants
have forged documents.
2. Issued C/O are not
conformable with the origin criteria.
Chapter
III
MANAGEMENT OF C/O
ISSUANCE
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Only persons who have completed
procedures for specimen signature registration with the Ministry of Industry
and Trade for forwarding to the ASEAN Secretariat for registration with
competent authorities of importing countries may sign and issue C/O.
Article 11.
Focal point
The Import and Export Department
of the Ministry of Industry and Trade shall act as the focal point performing
the following jobs:
1. Guiding and inspecting the
C/O issuance;
2. Carrying out procedures for
registering specimens of signatures of persons competent to sign and issue C/O
and specimens of seals of Vietnamese C/O issuers with the ASEAN Secretariat,
and forwarding specimens of signatures of persons competent to sign and issue
C/O and specimens of seals of C/O issuers of CEPT Agreement member states to
the Ministry of Finance (the General Department of Customs);
3. Assisting the Minister of
Industry and Trade in settling matters related to the implementation of C/O.
Article 12.
Reporting regime
1. C/O issuers shall update
information on C/O issuance on the eCOSys on a daily basis. Information updates
must cover all information required to be declared in C/O application dossiers.
2. C/O issuers which have not
yet connected to the eCOSys shall make eCOSys connection with the Department
for E-Commerce and Information Technology of the Ministry of Industry and
Trade. Pending the completion of eCOSys connection. C/O issuers shall send monthly
reports in writing and by e-mail (with data in the Excel format). Reports for a
month must be sent to the Ministry of Industry and Trade not later than the 5lh
day of the subsequent month, based on the date shown in the postmark or the
date of sending e-mail and made according to a form provided in Annex 13 (not
printed herein).
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Article 13.
Implementation provisions
1. This Circular takes effect on
February 21, 2010.
2. This Circular replaces the
Ministry of Industry and Trade's Circular No. 12/2009/TT-BCT of May 22, 2009,
on implementation of the rules of origin provided in the ASEAN Trade in Goods
Agreement.
FOR
THE MINISTER OF INDUSTRY AND TRADE
DEPUTY MINISTER
Nguyen Thanh Bien
ANNEX 1
RULES OF ORIGIN
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In determining the origin of
goods eligible for preferential tariffs pursuant to the Agreement on the Common
Effective Preferential Tariff 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, i.e., Brunei Darussalam.
the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic
Republic, Malaysia, the Federation 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 lor later use as materials in another
production process. For the purposes of this Annex, the terms "goods"
and "products" can be used interchangeably;
4. "Originating goods"
means products or materials that qualify as originating under this Annex;
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;
6. "Product-specific
rules" means rules that specify that the materials have undergone a change
in tariff classification or a specific manufacturing or processing operation,
or satisfy regional value content criterion (or ad-valorem criterion) or a
combination of any of these criteria;
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;
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Article 2.
Origin criteria
Goods imported into the
territory of a Member State from another Member State shall be considered to be
originating and eligible for preferential tariff treatment if they conform to
the origin requirements under any one of the following conditions:
1. A good which is wholly
obtained or produced in an exporting Member State as set out and defined in
Article 3;
2. A good not wholly obtained or
produced in an exporting Member State, provided that it is eligible under
Article 4 or Article 5.
Article 3.
Wholly obtained or produced
Products referred to in Clause 1
of Article 2 shall be considered to be originating or wholly obtained or produced
in the exporting Member State in the following cases:
1. Plants and plant products
grown and harvested, picked or gathered there;
2. Live animals born and raised
there;
3. Goods obtained from live
animals referred to in Clause 2 of this Article;
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5. Minerals and other naturally
occurring substances, not included in Clauses 1 thru 4, extracted or taken from
the soil, waters, seabed or beneath the seabed of that Member State;
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 territorial waters, seabed or beneath the seabed
outside the territorial waters[1]
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[2];
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 capable 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,
b/ Used goods collected there,
provided that such goods are fit only for the recovery of raw materials.
11. Goods obtained or produced
in a Member State from products referred to in Clauses 1 thru 10 of this
Article.
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1. A good referred to in Clause
2, Article 2 shall be considered to be originating in the Member State where
working or processing of the good has taken place if:
a/ It has a regional value
content (below referred to as "ASEAN value content" or the
"regional value content (RVC)") of at least 40 percent which is
calculated using the formula set out in Clause 2 of this Article; or all non-originating
materials used for producing the goods have undergone a change in tariff
heading ("CTH") at four (4) digit level;
b/ Notwithstanding Point a.
Clause 1 of this Article, a good referred to in Annex 2 shall be considered to
be originating if it satisfies the criteria set out therein.
2. The formula for calculating
RVC: a/ Direct formula:
RVC
=
ASEAN
material cost
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Direct
labor cost
Direct
overhead cost
Other
costs
Profit
x
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100%
FOB
price
b/ Indirect formula:
RVC
=
FOB
price - Value of non-originating materials, parts or products
x
100%
FOB
price
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a/ The value of non-originating materials,
parts or products is:
The CIF price 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/ The overhead cost includes
real property items associated with the manufacturing process (insurance,
factory rent and leasing, depreciation on buildings, repair and maintenance,
taxes, interests on mortgage); leasing 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 manufacture); 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 or the
right to manufacture); 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 the like;
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;
e/ Other costs refer to the
costs incurred in placing the goods in the ship for export, including domestic
transport costs, storage and warehousing, port handling, brokerage fees,
service charges and the like.
4. Member States shall determine
and adhere to only one method of calculating the ASEAN 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 of 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.
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6. In determining the costs
referred to in Clause 3 of this Article, Member States shall closely adhere to
the guidelines for costing methodologies set out in Annex 4.
7. Locally procured materials
produced by manufacturers established in compliance with domestic regulations
shall be deemed to have fulfilled the origin requirements in this Annex;
locally procured materials from other sources shall be subjected to the origin
test according to this Annex.
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 percent, the qualifying ASEAN value content to be
cumulated using the RVC criterion shall be in direct proportion to the actual
domestic content provided that it is equal to or more than 20 percent. The
implementing guidelines are set out in Annex 5.
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 origin:
a/ Ensuring preservation of
goods in good condition for the purposes of transport or storage;
b/ Facilitating shipment or
transportation;
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2. A good originating in a
Member State shall retain its initial originating status, when exported from
another Member State, where operations undertaken have not gone beyond those
referred to in Clause I of this Article.
Article 7.
Direct consignment
1. Preferential tariff treatment
shall be applied to a good satisfying the requirements of this Annex 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-Member State;
c/ The goods whose transport
involve transit through one or more intermediate non-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,
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Article 8.
De Minimis
1. A good that fails to meet the
criterion of a change in tariff classification shall be considered as
originating if the value of all non-originating materials (used in its production)
that do not undergo the required change in tariff classification is less than
ten (10) percent of the FOB value of the good and the good meets all other
applicable criteria set forth in this Annex.
2. The value of non-originating
materials referred to in 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.
Treatment of packages and packing materials
1. Packaging and packing
materials for retail:
a/ If the good is subject to the
ASEAN value content criterion, the value of packaging and packing materials for
retail 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 1 of
this Article is not applicable, packaging and packing materials for retail,
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 fulfil the criterion corresponding to a change of tariff
classification of the said good.
2. 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
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Article
11. Neutral elements
In order to determine whether a
good originates, it is unnecessary to determine the origin of the following
which might be used in its production and not incorporated into the good:
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;
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Article
12. Identical and interchangeable materials
1. For the purpose of
determining the origin of a good, when the good is manufactured utilizing
originating and non-originating materials, mixed or physically combined, the
origin of such materials can be determined by generally accepted accounting
principles of stock control applicable in the exporting Member State.
2. Once a decision has been
taken on the accounting principles of stock control, those principles shall be
used throughout the fiscal year.
Article
13. C/O form D
A claim that a good shall be
accepted as eligible for preferential tariff treatment shall be supported by a
C/O 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 C/O issuance procedures, as set out in Annex 6 (not printed
herein).
Article 14.
Review and modification
This Annex 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.-
[1] 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.
•'
In accordance with international law, registration of vessels could only be
made in one Member State.