Circular No. 12/2009/TT-BCT Implementing Rules on Origin in the ASEAN Trade in Goods Agreement

CIRCULAR

Implementing the Rules of Origin under the ASEAN Trade in Goods Agreement

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Pursuant to Decree No. 189/2007/ND-CP dated December 27, 2007, issued by the Government, detailing the functions, tasks, powers, and organizational structure of the Ministry of Industry and Trade;

Based on the ASEAN Trade in Goods Agreement signed on February 26, 2009, at the 14th Summit Conference in Cha-am, Thailand, among the member countries of the Association of Southeast Asian Nations;

Pursuant to Decree No. 19/2006/NĐ-CP dated February 20, 2006, promulgated by the Government detailing the Law on Commerce regarding the origin of goods;

The Ministry of Industry and Trade stipulates the implementation of the Rules of Origin under the ASEAN Trade in Goods Agreement as follows:

PART I

GENERAL PROVISIONS

Article 1. Goods Entitled to Issue Certificate of Origin Form D

Goods entitled to issue Certificate of Origin Form D (hereinafter referred to as C/O) are goods with origin as prescribed in Appendix 1 of this Circular and are issued C/O by the Organization issuing C/O Form D.

Article 2. Interpretation of Terms

Clause 1. The ASEAN Trade in Goods Agreement is the Agreement signed on February 26, 2009, at the 14th Summit Conference in Cha-am, Thailand, among the member countries of the Association of Southeast Asian Nations (hereinafter referred to as the ATIGA Agreement).

Clause 2. The Organization issuing C/O Form D of Vietnam (hereinafter referred to as the Issuing Organization) includes organizations specified in Appendix 13.

Clause 3. The person requesting issuance of C/O Form D (hereinafter referred to as the Requester) includes the exporter, manufacturer, or authorized representative of the exporter or manufacturer with a valid power of attorney.

Clause 4. The eCOSys system is the electronic management and certification system for origin of Vietnam located at: http://www.ecosys.gov.vn.

Article 3. Responsibilities of the Requester

The Requester shall be responsible for:

Point 1. Registering business records with the Issuing Organization in accordance with Article 5;

Point 2. Submitting the application for issuance of C/O to the Issuing Organization;

Point 3. Proving that exported goods meet the origin requirements and facilitating the Issuing Organization in verifying the origin of goods;

Point 4. Bearing legal responsibility for the accuracy and truthfulness of declarations related to the application for issuance of C/O, including in cases where the exporter has delegated authority;

Point 5. Promptly reporting to the Issuing Organization at the location where the application was made about any C/Os rejected by the importing country due to refusal to recognize C/Os issued by Vietnamese Issuing Organizations (if any);

Point 6. Facilitating the Issuing Organization's inspection of actual production facilities or places of cultivation, harvesting, and processing of exported goods;

Point 7. Proving the authenticity of the origin of exported goods when requested by the Ministry of Industry and Trade, the Issuing Organization, domestic customs authorities, and the customs authorities of the importing country.

Article 4. Responsibilities of the Issuing Organization

The Issuing Organization shall be responsible for:

Point 1. Guiding the Requester if requested;

Point 2. Receiving and reviewing business records and applications for issuance of C/O;

Point 3. Verifying the actual origin of goods when necessary;

Point 4. Issuing C/O when goods comply with the origin regulations of this Circular and the Requester adheres to the provisions of Article 3;

Point 5. Sending samples of signatures of authorized signatories of C/O and the seal of the Issuing Organization to the Ministry of Industry and Trade (Department of Import-Export) in accordance with the Ministry's regulations to register with the competent authority of the importing country;

Point 6. Resolving complaints related to the issuance of C/O within its jurisdiction;

Point 7. Re-verifying the origin of exported goods upon request of the competent authority of the importing country;

Point 8. Exchanging relevant information regarding the issuance of C/O with other Issuing Organizations;

Point 9. Fulfilling reporting requirements, fully participating in training courses on origin and other requirements as stipulated by the Ministry of Industry and Trade.

Chapter II

PROCEDURES FOR ISSUANCE OF C/O

Article 5. Registration of Business Files

1. The applicant for a Certificate of Origin (C/O) shall only be considered for issuance of a C/O at the place where the business file has been registered after completing the business file registration procedures. The business file includes:

a) Registration of the authorized signatory's signature on the Application for Issuance of C/O and the business seal (Annex 12);

b) A copy of the business registration certificate (certified true copy);

c) A copy of the tax code registration certificate (certified true copy);

d) A list of production facilities (if any) of the business (Annex 11).

2. Any changes to the business file must be reported to the C/O issuing organization at the registered location before applying for a C/O. The business file must still be updated every two (02) years.

3. In cases where the applicant wishes to obtain a C/O from a different issuing organization due to force majeure or valid reasons, they must submit a document clearly stating the reasons for not applying for a C/O at the previously registered location and must register the business file with the new issuing organization.

Article 6. Application Documents for Issuance of C/O

1. The application documents for issuance of C/O include:

a) An Application for Issuance of C/O (Annex 10) fully and properly filled out as per the instructions in Annex 9;

b) A completed C/O form (Annex 8);

c) A completed customs declaration form. In cases where exported goods do not require a customs declaration form according to the law, there is no need to submit a customs declaration form;

d) Commercial invoice;

đ) Bill of lading or equivalent transport document if the business does not have a bill of lading. In cases where a back-to-back C/O is issued for the entire consignment or part of it from a free trade zone to the domestic market, this document may not be required if the business actually does not have it;

If there is no completed customs declaration form and bill of lading (or equivalent transport document), the applicant for a C/O may be allowed to provide these documents later but not more than fifteen (15) working days from the date of issuance of the C/O.

2. If deemed necessary, the C/O issuing organization may request the applicant for a C/O to provide additional documents related to exported goods such as: import customs declaration forms for raw materials and components; export permit (if applicable); purchase and sale contracts; value-added tax invoices for purchasing raw materials and components domestically; samples of raw materials and components or exported goods; a detailed description of the production process with the Harmonized System (HS) codes of input materials and the HS codes of the goods (for the criterion of changing product codes or specific processing criteria); a calculation of regional value content (for the regional value content criterion); and other documents to prove the origin of exported goods.

3. Where the documents specified in points c, d, đ of Clause 1 and those specified in Clause 2 are certified true copies signed and stamped by the legal representative or authorized person of the business, the original may be requested by the C/O issuing organization for verification if deemed necessary.

4. For businesses participating in eCOSys, the authorized signatory of the Application for Issuance of C/O will enter data through the eCOSys system, electronically sign, and automatically transmit to the C/O issuing organization. After reviewing the file on the eCOSys system, if the issuance of C/O is approved, the C/O issuing organization will notify the business through the eCOSys system to submit the complete paper application for verification before issuing the C/O.

Article 7. Acceptance of Application for Issuance of C/O

When the applicant submits the application for issuance of C/O, the receiving officer shall accept the application, examine it, and notify the applicant in writing or by other means regarding the following actions to be taken:

1. Issue C/O in accordance with Article 8;

2. Request additional documents in accordance with Article 6;

3. Refuse to issue C/O if any of the following situations are discovered:

a) The applicant has not completed the registration of business records as prescribed in Article 5;

b) The application for issuance of C/O is inaccurate or incomplete as prescribed in Article 6;

c) The applicant has not submitted the debt certificates as prescribed in Article 6;

d) The application contains conflicting contents;

đ) Submitting the application for issuance of C/O at a place other than where the business record was registered;

e) The C/O form is filled out in handwriting, erased, blurred, or printed in multiple ink colors;

g) There is legal evidence proving that the goods do not have the origin as stipulated in this Circular or the applicant has engaged in fraudulent or dishonest behavior in proving the origin of the goods.

Article 8. Issuance of C/O

1. C/O must be issued within three (03) working days from the date the applicant submits a complete and valid application, except in cases provided for in Clause 2 of this Article.

2. The organization issuing C/O may conduct on-site inspections at the production location if it deems that the examination of the application alone is insufficient grounds for issuing C/O or if there are signs of violation of laws concerning previously issued C/Os. The inspection officer of the organization issuing C/O will prepare a report on the results of the inspection and require the applicant and/or exporter to sign the report. In case the applicant and/or exporter refuse to sign, the inspection officer must clearly record the reasons for refusal and sign the report to confirm.

The processing time for issuing C/O in such cases shall not exceed five (05) working days from the date the applicant submits a complete application.

3. During the process of considering the issuance of C/O, if it is found that the goods do not meet the origin requirements or the application is missing or invalid, the organization issuing C/O will notify the applicant according to Clause 2 or Clause 3 of Article 7.

4. The verification period shall not hinder the export shipment or payment of the exporter, except in cases due to the fault of the exporter.

Article 9. Revocation of Issued C/O

The organization issuing C/O will revoke the issued C/O in the following cases:

1. The exporter or the applicant for issuance of C/O falsifies documents.

2. The issued C/O does not comply with the origin standards.

Chapter III

ORGANIZATION MANAGING THE ISSUANCE OF C/O

Article 10. Authority to Sign C/O

Only those who have completed the procedure of registering their signature samples with the Ministry of Industry and Trade and the Ministry of Industry and Trade has sent these samples to the ASEAN Secretariat for registration with the competent authority of the importing country shall be authorized to sign and issue C/O.

Article 11. Competent Authority

The Import-Export Department under the Ministry of Industry and Trade is the competent authority responsible for performing the following tasks:

1. Guide and inspect the issuance of C/O;

2. Perform procedures to register the signature samples of authorized persons signing C/O and the stamp samples of Vietnamese organizations issuing C/O with the ASEAN Secretariat and transfer the signature samples of authorized persons signing C/O and the stamp samples of organizations issuing C/O of member countries under the ATIGA Agreement to the Ministry of Finance (General Customs Department);

3. Assist the Minister of Industry and Trade in resolving issues related to the implementation of C/O.

Article 12. Reporting System

1. Organizations issuing C/O must update the issuance data through the eCOSys system daily with all necessary information as required in the Application for Issuance of C/O.

2. Before December 31, 2009, organizations issuing C/O that have not connected to the eCOSys system must implement the connection to the eCOSys system with the Department of E-commerce and Information Technology under the Ministry of Industry and Trade. During the period before completing the connection to the eCOSys system, organizations issuing C/O must submit monthly reports in writing and via email (sent in Excel format). Reports must be sent to the Ministry of Industry and Trade no later than the fifth day of the month following the submission date, calculated based on the postmark or the date of sending the email, according to the model specified in Appendix 14.

3. Organizations issuing C/O violating the reporting regulations set forth in Clause 1 and Clause 2 of this Article for the third time will be suspended from issuing C/O and publicly announced on the Ministry of Industry and Trade's website. After at least six months, the Ministry of Industry and Trade will consider re-authorizing the suspended organization issuing C/O based on its request and explanation.

Article 13. Implementation Provisions

This Circular takes effect forty-five (45) days from the date of signature and replaces Decision No. 19/2008/QĐ-BCT of the Minister of Industry and Trade dated July 24, 2008, promulgating the Rules for Issuing Certificate of Origin Form D to enjoy preferential treatment under the Framework Agreement on Comprehensive Preferential Trade (CEPT) for establishing the ASEAN Free Trade Area (AFTA)./