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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. 21/2010/TT-BCT
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Hanoi, May 17, 2010
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CIRCULAR
ON
IMPLEMENTATION OF THE RULES OF ORIGIN PROVIDED IN THE ASEAN TRADE IN GOODS
AGREEMENT
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 ASEAN Trade in Goods
Agreement concluded on February 26, 2009, in Cha-am. Thailand, at the 14'h
summit meeting of the member states of the Association of Southeast Asian
Nations;
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 ASEAN Trade in Goods
Agreement as follows:
Chapter I
GENERAL
PROVISIONS
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A good eligible for issuance of certificates
of origin form D (below referred to as C/O) means an originating good under the
provisions of Appendix 1 to this Circular for which a C/O is issued by a C/O
form D issuer.
Article 2.
Interpretation of terms
1. The ASEAN Trade in Goods Agreement (below
referred to as ATIGA) is the one concluded on February 26, 2009, in Cha-am. Thailand, at the I4lh summit meeting of the member states of the Association of Southeast
Asian Nations.
2. Vietnamese issuer of C/O form D (below
referred to as C/O issuer) means organizations specified in Annex 13 to this
Circular (not printed herein).
3. Applicant for C/O form D (below referred
to as C/O applicant) 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;
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4. Take responsibility before law for the
accuracy and truthfulness of their declarations related to C/O applications,
including cases of authorization by exporters;
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 products when
necessary;
4. Issue C/O when goods satisfy the origin
requirements in this Circular and C/O applicants observe the 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 exported goods 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 comply with other 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 12, 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 11, 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 10, not
printed herein), which has been fully and duly filled in as guided in Annex 9
(not printed herein):
b/ The C/0 form (Annex 8. 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 exports
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 after 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 (70 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 C7O issuers. After
examining application dossiers on the eCOSys, if agreeing to issue C/O, C/O
issuers shall notify such via the eCOSys to applying traders 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 one 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/0 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
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 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 (70 issuance;
2. Carrying out procedures for registering
specimens of signatures of persons competent to sign and issue C/0 and
specimens of seals of Vietnamese C/0 issuers with the ASEAN Secretariat, and
forwarding specimens of signatures of persons competent to sign and issue C/0
and specimens of seals of C/0 issuers of ATIGA 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 issuance of C/0.
Article 12. Reporting
regime
1. C/0 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 C70 application dossiers.
2. C70 issuers that have not joined the
eCOSys shall make eCOSys connection with the Department for E-Commerce and Information
Technology under the Ministry of Industry and Trade. Pending the completion of
the eCOSys connection. C/0 issuers shall make written monthly reports and
via-email reports (transmitted in Excel data). A monthly report shall be sent
to the Ministry of Industry and Trade no later than the 5th day of the
following month, counting from the date of the postmark or from the date of
sending email according to a form provided in Annex 14 (not printed herein).
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Article 13.
Implementation provisions
1. This Circular takes effect on July 1,
2010.
2. This Circular replaces the Ministry of
Industry and Trade's Circular No. 01/2010/TP BCT of January 8. 2010. on
implementation of the rules of origin provided in the Agreement on Common
Effective Preferential Tariff (CEPT) Scheme for the establishment of the ASEAN
Free Trade Area (AFTA).
FOR THE MINISTER OF
INDUSTRY AND TRADE
DEPUTY MINISTER
Nguyen Thanh Bien
ANNEX
1
RULES
OF ORIGIN
(To the Ministry of Industry and Trade's Circular No. 21/2010/TT-BCT of May
17, 2010, on implementation of the rules of origin provided in the ASEAN Trade
in Goods Agreement)
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For the purposes of this Annex, the terms
below are construed as follows:
1. "Aquaculture" means the
farming of aquatic organisms including fish, mollusks. crustaceans, other
aquatic invertebrates and aquatic plants, from feedstock such as eggs. fry.
fingerlings and larvae, by intervention in the rearing or growth processes to
enhance production such as regular stocking, feeding, or protection from
predators;
2. "OF" means the value of
the goods imported, and includes the costs of freight and insurance up to the
port or place of entry into the country of importation. The valuation shall be
made in accordance with Article VII of GATT 1994 and the Agreement on the
Implementation of Article VII of GATT 1994 as contained in Annex 1A to the WTO
Agreement.
3. "FOB" means the
free-on-board value of the goods, inclusive of the costs of transport to the
port or site of final shipment abroad. The valuation shall be made in
accordance with Article VII of GATT 1994 and the Agreement on the Implementation
of Article VII of GATT 1994 as contained in Annex lA to the WTO Agreement;
4. "Generally accepted accounting
principles" means the recognized consensus or substantial
authoritative support in the territory of a Member State, with respect to the recording
of revenues, expenses, costs, assets and liabilities; the disclosure of
information; and the preparation of financial statements. These principles may
encompass broad guidelines of general application as well as detailed
standards, practices and procedures;
5. "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 Annex, the terms "goods'* and "products"
can be used interchangeably;
6. "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:
7. "Materials" means any
matter or substance used or consumed in the production of goods or physically
incorporated into another good or are subject to a process in the production of
another good;
8. "Originating goods or originating
material" means goods or material that qualifies as originating in
accordance with the provisions of this Annex;
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10. "Production" means
methods of obtaining goods, including growing, mining, harvesting, raising,
breeding, extracting, gathering, collecting, capturing, fishing, trapping,
hunting, manufacturing, producing, processing or assembling goods; and.
11. "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
a Regional Value Content criterion (or percentage of value) or a combination of
any of these criteria.
Article 2. Origin
criteria
Goods imported into the territory of a Member
.State from another Member Slate 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 Slate as set out and defined in Article 3: or.
2. A good not wholly obtained or produced in
an exporting Member State, provided that it is eligible under Article 4 or 6.
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, including
fruits, flowers, vegetables, trees, seaweed, fungi and live plants, grown and
harvested, picked or gathered in the exporting Member State;
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3. Goods obtained from live animals in the
exporting Member State:
4. Goods obtained from hunting, trapping,
fishing, farming, aquaculture. gathering or capturing conducted in the
exporting Member State;
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[1][1] taken from the waters,
seabed or beneath the seabed outside the territorial waters[2][2]
of that Member Stale, provided that that Member State has the rights to exploit
such waters, seabed and beneath the seabed in accordance with international law[3][3];
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 or 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.
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11. Goods obtained or produced in a Member State from products referred to in Clauses 1 thru 10 of this Article.
Article 4. Not wholly
obtained or produced goods
1. General origin criteria.
a/Goods specified in Clause 2, Article 2
shall be deemed to be originating in the Member State where working or
processing of the goods has taken place if:
- the goods have a regional value content
(below referred to as "ASEAN Value Content" or the "Regional
Value Content (RVC)") of not less than forty percent (40%) calculated
using the formula set out in Article 5; or,
- all non-originating materials used in the
production of the goods have undergone a change in tariff classification (below
referred to as "CTC") at four-digit level (i.e.. a change in tariff
heading) of the Harmonized System.
b/ Each Member State shall permit the
exporter of the good to decide whether to use either the "Regional Value
Content (RVC) of not less than forty percent (40%)" or "change in
tariff classification at four-digit level" specified at Point a. Clause 1
when determining whether the goods qualify as originating goods of the Member State.
2.- Product specific rules.
a/ Notwithstanding Clause 1 of this Article,
goods listed in Annex 2 shall qualify as originating goods if the goods satisfy
the product specific rules set out therein.
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c/ Where product specific rules specify a
certain RVC. it is required that the RVC of a good is calculated using the
formula set out in Article 5.
d/ CTC-based or SP-based rule of origin shall
apply only to non-originating materials.
3. Notwithstanding Clauses 1 and 2 of this
Article, a good which is covered by Attachment A or B of the Ministerial
Declaration on Trade in Information Technology Products adopted in the
Ministerial Conference of the WTO on December 13. 1996. set out as Annex 4.
shall be deemed to be originating in a Member State if it is assembled from
materials covered under the same Annex.
Article 5. Formula
for RVC calculation
1. For the purposes of Article 4. the formula
for calculating RVC is as follows:
a/ Direct method:
2. For the purpose of calculating RVC
provided in Clause 1 of this Article:
a/ ASEAN material cost is the CIF value of
originating materials, parts or goods that are acquired or self-produced by the
producer in the production of the good;
RVC
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ASEAN material cost
+ Direct labor cost+ Direct overhead + Other costs+ Profit
X
100
FOB price
or.
b/ Indirect method:
RVC
=
FOB price - Value
of non-originating materials, parts or goods
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100
FOB price
b/ Value of non-originating materials, parts
or goods is:
- The CIF value at the time of importation of
the goods or importation can be proven; or.
- The earliest ascertained price paid for the
goods of undetermined origin in the territory of the Member State where the working or processing takes place;
c/ Direct labor cost includes wages.
remuneration and other employee benefits associated with the manufacturing
process:
d/ The calculation of direct overhead cost
includes, but is not limited to. real property items associated with the
production 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 production of the goods); 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 goods or the right to manufacture the
goods); 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
paid for dutiable component; and.
e/ FOB price means the free-on-board value of
the goods as defined in Article 1. FOB price shall be determined by adding the
value of materials, production cost, profit and other costs.
3. Member States shall determine and adhere
to only one method of calculating the RVC. 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 RVC 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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5. Locally-procured materials produced by
established licensed manufacturers, in compliance with domestic regulations,
shall be deemed to have fulfilled the origin requirement of this Annex;
locally-procured materials from other sources shall be subjected to the origin
verification under the Agreement on Customs Valuation for the purpose of origin
determination.
6. The value of goods under this Annex shall
be determined in accordance with the provisions of the Agreement on Customs
Valuation.
7. Vietnam shall apply the indirect method of
calculation specified at Point b. Clause 1 of this Article for determining the
origin of exports under the ATIGA.
Article 6.
Accumulation
1. Unless otherwise provided for in the
ATIGA, 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 RVC of the material is less than
forty percent (40%). the RVC 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 twenty percent (20%). The implementing guidelines are set out
in Annex 6 (not printed herein).
Article 7. 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 of goods in a Member State:
a/ ensuring preservation of goods in good
conditions for the purposes of transport or storage;
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c/ packaging or presenting goods for sale.
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
1 of this Article.
Article 8. 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 from an
exporting Member State to an importing Member State; or,
b/ If the goods are transported through one
or more Member State other than the exporting Member State or the importing
Member State, or through any non-ASEAN Member State, 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 9. De Minimis
1. A good that fails to meet the CTC
criterion shall be considered as originating if the value of all
non-originating materials (used in its production) that do not undergo the
required CTC does not exceed ten percent (10%) 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 of this Article shall, however, be included in the
value of non-originating materials for any applicable RVC requirement for the
good.
Article 10. Treatment
of packages and packing materials
1. Packaging and packing materials for
retail:
a/ If the good is subject to the RVC
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
fulfill the CTC criterion 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 11.
Accessories, spare parts and tools
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a/ the accessories, spare parts, tools and
instructional or other information materials are not invoiced separately from
the good; and,
b/ the quantities and value of the
accessories, spare parts, tools and instructional or other information
materials are customary for the good.
2. If a good is subject to the RVC-based rule
of origin, the value of the accessories, spare parts, tools and instructional
or other information materials shall be taken into account as the value of the
originating or non-originating materials, as the case may be. in calculating
the RVC of the originating good.
Article 12. Neutral
elements
In order to determine whether a good
originates, it is not necessary 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;
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6. Equipment, devices and supplies used for
testing or inspecting the good;
7. Catalyst and solvent; and.
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 13. Identical
and interchangeable materials
1. For the purpose of establishing 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 or stock control practices 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 14. C/O
A claim that a good shall be accepted as
eligible for preferential tariff treatment shall be supported by a C/O issued
by a government authority designated by the exporting Member State as set out
in Annex 8 and notified to the other Member States as set out in Annex 7 (not
printed herein).-
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