Thông tư 15/2010/TT-BCT

CIRCULAR

ON IMPLEMENTATION OF THE RULES OF ORIGIN PROVIDED IN THE ASEAN-INDIA FREE TRADE AREA AGREEMENT

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 ASEAN-India Free Trade Area Agreement concluded in Thailand on August 13, 2009, and on October 24, 2009, between the member states of the Association of Southeast Asian Nations and India;

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-India Free Trade Area Agreement as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Goods eligible for issuance of certificates of origin form AI

A good eligible for issuance of a certificate of origin form AI (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 AI issuer.

Article 2. Interpretation of terms

1. The ASEAN-India Free Trade Area Agreement means an agreement officially concluded in Thailand on August 13, 2009, and on October 24, 2009, between the member states of the Association of Southeast Asian Nations and India (below referred to as AIFTA Agreement).

2. Vietnamese issuer of C/O form AI (below referred to as C/O issuer) means organizations specified in Annex 10 to this Circular (not printed herein).

3. Applicant for C/O form AI (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;

3. Prove that their exports satisfy all origin requirements and facilitate the verification of the origin of these goods by C/O issuers;

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 set out in this Circular and C/O applicants observe the provisions of Article 3;

5. Send specimens of signatures of persons authorized to sign C/O and their seals to the Ministry of Industry and Trade (the Import and Export Department) under the Ministry's regulations for registration with competent 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 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 with which 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 C/O application and the specimen of the seal of the trader (Annex 9, not printed herein);

b/The trader's business registration certificate (a certified true copy);

c/ Tax identification number certificate (a certified true copy);

d/ A list of production establishments (if any) of the trader (Annex 8, 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 dossier

1. A C/O application dossier comprises:

a/ The C/O application form (Annex 7, not printed herein) which has been full/'and duly filled in as guided in Annex 6 (not printed herein);

b/ The C/O form (Annex 5, 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;

d/ The commercial invoice;

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 submit these documents later within fifteen (1ST'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 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 in Clause 2 may be copies bearing the signature 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.

For traders joining the eCOSys, their persons authorized to sign C/O applications shall declare data via the eCOSys, give their e-signatures and transmit them to C/O issuers. After examining the 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 any of the following actions:

1. Issuance of C/O under Article 8;

2. Request for supplementation of documents under Article 6;

3. Refusal to issue C/O when detecting that:

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 unreadable contents, or printed in multicolor inks;

g/ There are lawful grounds for evidencing 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.

2. C/O issuers may make verification visits to production establishments if they see that the dossier examination provides insufficient grounds for C/O issuance or detect signs of illegal acts in connection to previously issued C/O. Verifiers of C/O issuers shall make minutes of verification results and request C/O applicants and/or exporters to jointly sign these minutes. In case C/O applicants and/or exporters refuse to sign these minutes, verifiers shall write the reasons for such refusal in the minutes and sign them for certification.

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

Article 10. Competence to sign C/O

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 AIFTA 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 issuance 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 that have violated thrice the reporting regime prescribed in Clause 1 shall be suspended from issuing C/O and be announced on the website of the Ministry of Industry and Trade. After at least 6 months, the Ministry of Industry and Trade will consider empowering CI O issuers suspended from issuing C/O to issue CI O again based on the requests and explanations of these issuers.

Article 13. Implementation provision

1. This Circular takes effect on June 1,2010.-

ANNEX 1

RULES OF ORIGIN
(Enclosed with the Circular No. 15/2010/TT-BCT dated April 15, 2010 of the Minister of Industry and Trade on application of Rules of Origin in the Asean-India Free Trade Agreement)

Article 1. Definitions 

For the purposes of this Annex, the term:

1. “CIF” means the value of the good imported, and includes the cost of freight and insurance up to the port or place of entry into the country of importation;

2. “FOB” means the free-on-board value of the good, inclusive of the cost of transport to the port or site of final shipment abroad.

3. “material” means raw materials, ingredients, parts, components, subassembly and/or goods that are physically incorporated into another good or are subject to a process in the production of another good;

4. “originating products” means products that qualify as originating in accordance with the provisions of Article 2;

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" are 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 (or an ad valorem percentage) or a combination of any of these criteria;

7. "product” means products which are wholly obtained/produced or being manufactured, even if it is intended for later use in another manufacturing operation.

8. “identical and interchangeable materials” means materials being of the same kind possessing similar technical and physical characteristics, and which once they are incorporated into the finished product cannot be distinguished from one another for origin purposes.

Article 2. Origin criteria

Products imported by a Party which are consigned directly within the meaning of Article 8 shall be deemed to be originating and eligible for preferential tariff treatment if they conform to the origin requirements under any one of the following:

1. Products which are wholly obtained or produced in the exporting Party as set out and defined in Article 3; or

2. Products not wholly produced or obtained in the exporting Party provided that the said products are eligible under Article 4 or 5 or 6.

Article 3. Wholly produced or obtained products

Within the meaning of Clause 1 Article 2, the following shall be considered as wholly produced or obtained in an exporting Party:  

1. Plant[1] and plant products grown and harvested in that Party;

2. Live animals[2] born and raised in that Party;

3. Products[3] obtained from live animals referred to in Clause 2 of this Article;

4. Products obtained from hunting, trapping, fishing, aquaculture, gathering or capturing conducted in that Party;

5. Minerals and other naturally occurring substances, not included in Clauses 1 to 4, extracted or taken from that Party’s soil, waters, seabed or beneath the seabed;

6. Products taken from the waters, seabed or beneath the seabed outside the territorial waters of that Party, provided that that Party has the rights to exploit such waters, seabed and beneath the seabed in accordance with the United Nations Convention on the Law of the Sea, 1982;

7. Products of sea-fishing and other marine products taken from the high seas by vessels registered with a Party and entitled to fly the flag of that Party;

8. Products processed and/or made on board factory ships registered with a Party and entitled to fly the flag of that Party, exclusively from products referred to in Clause 7 of this Article;

9. Articles collected in the Party 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[4]; and

10. Products obtained or produced in a Party exclusively from products referred to in Clauses 1 to 9 of this Article.

Article 4. Not wholly produced or obtained products 

1. For the purposes of Clause 2 Article 2, a product shall be deemed to be originating if:

a) The AIFTA content is not less than thirty five percent (35%) of the FOB value; and

b) The non-originating materials have undergone at least a change in tariff sub-heading (6-digit level) (CTSH) level of the Harmonized System,

provided that the final process of the manufacture is performed within the territory of the exporting Party.

2. For the purposes of this Article, the formula for the 35% AIFTA content is calculated respectively as follows5:

a) Direct method:  

b) Indirect method:

3. The value of the non-originating materials shall be:

a) The CIF value at the time of importation of the materials, parts or produce; or

b) The earliest ascertained price paid for the materials, parts or produce of undetermined origin in the territory of the Party where the working or processing takes place;

4. The method of calculating the AIFTA content is as set out in Appendix 2.

Article 5. Cumulative rule of origin  

Unless otherwise provided for in this Annex, products which comply with origin requirements provided for in Article 2 and which are used in a Party as materials for a product which is eligible for preferential treatment under the AIFTA Agreement shall be considered as products originating in that Party where working or processing of the product has taken place.

Article 6. Product specific rules

Notwithstanding the provisions of Article 4, products which satisfy the Product Specific Rules shall be considered as originating from that Party where working or processing of the product has taken place. The list of Product Specific Rules may be promulgated in the future.

Article 7. Minimal operations and processes  

1. Notwithstanding any provisions in this Annex, a product shall not be considered originating in a Party if the following operations are undertaken exclusively by itself or in combination in the territory of that Party:

a) Operations to ensure the preservation of products in good condition during transport and storage (such as drying, freezing, keeping in brine, ventilation, spreading out, chilling, placing in salt, sulphur dioxide or other aqueous solutions, removal of damaged parts, and like operations);

b) Simple operations consisting of removal of dust, sifting or screening, sorting, classifying, matching (including the making-up of sets of articles), washing, painting, cutting;

c) Changes of packing and breaking up and assembly of consignments;

d) Simple cutting, slicing and repacking or placing in bottles, flasks, bags, boxes, fixing on cards or boards, and all other simple packing operations;

dd) Affixing of marks, labels or other like distinguishing signs on products or their packaging;

e) Simple mixing of products whether or not of different kinds, where one or more components of the mixture do not meet the conditions laid down in this Annex to enable them to be considered as originating products;

g) Simple assembly of parts of products to constitute a complete product;

h) Disassembly;

h) Slaughter which means the mere killing of animals; and

i) Mere dilution with water or another substance that does not materially alter the characteristics of the products.

2. For textiles and textile products listed in Appendix 3, an article or material shall not be considered to be originating in a Party 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;

d) One or more finishing operations on yarns, fabrics or other textile articles, such as bleaching, waterproofing, decating, shrinking, mercerizing, or similar operations; or

dd) Dyeing or printing of fabrics or yarns.

Article 8. Direct consignment  

The following shall be considered as consigned directly from the exporting Party to the importing Party:

1. If the products are transported passing through the territory of any other AIFTA Parties;

2. If the products are transported without passing through the territory of any non-AIFTA Parties;

3. The products whose transport involves transit through one or more intermediate non-Parties with or without transshipment or temporary storage in such non-Parties provided that:

a) The transit entry is justified for geographical reason or by consideration related exclusively to transport requirements;

b) The products have not entered into trade or consumption there; and

c) The products have not undergone any operation there other than unloading and reloading or any operation required to keep them in good condition.

Article 9. Treatment of packages and packing materials

1. Packages and packing materials for retail sale, when classified together with the packaged product, shall not be taken into account in considering whether all non-originating materials used in the manufacture of a product fulfill the criterion corresponding to a change of tariff classification of the said product.

2. Where a product is subject to an ad valorem percentage criterion, the value of the packages and packing materials for retail sale shall be taken into account in its origin assessment, in case the packing is considered as forming a whole with products.

3. The containers and packing materials exclusively used for the transport of a product shall not be taken into account for determining the origin of any good.

Article 10. Accessories, spare parts, tools and instructional or other information material

1. The origin of accessories, spare parts, tools and instructional or other information materials presented with the products shall not be taken into account in determining the origin of the products, provided that such accessories, spare parts, tools and instructional or other information materials are:

a) in accordance with standard trade practices in the domestic market of the exporting Party; and

b) classified with the products at the time of assessment of customs duties by the importing Party.

However, if the products are subject to a qualifying AIFTA content requirement, the value of such accessories, spare parts, tools and instructional or other information material shall be taken into account as originating or non-originating materials, as the case may be, in calculating the qualifying AIFTA content.

Article 11. Indirect materials

In order to determine whether a product originates in a Party, any indirect material such as power and fuel, plant and equipment, or machines and tools used to obtain such products shall be treated as originating whether such material originates in non-Parties or not, and its value shall be the cost registered in the accounting records of the producer of the export goods.

Article 12. Identical and interchangeable materials

For the purposes of establishing if a product is originating when it is manufactured utilizing both 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/inventory management practiced in the exporting Party.

Article 13. C/O Form AI

A claim that a product shall be accepted as eligible for preferential tariff treatment shall be supported by a C/O Form AI issued by a government authority designated by the exporting Party and notified to the other Parties in accordance with the C/O issuance and certification procedures as set out in Appendix 4./.