DECISION No. 151/2005/QD-BTM OF JANUARY 27, 2005 PROMULGATING AMENDMENTS AND SUPPLEMENTS TO THE REGULATION ON ISSUANCE OF VIETNAM’S CERTIFICATES OF ORIGIN - FORM D FOR ENJOYMENT OF PREFERENCES UNDER THE “AGREEMENT ON THE COMMON EFFECTIVE PREFERENTIAL TARIFFS (CEPT) SCHEME FOR THE ESTABLISHMENT OF THE ASEAN FREE TRADE AREA (AFTA)”

THE MINISTER OF TRADE

Pursuant to the Government’s Decree No. 29/2004/ND-CP of January 16, 2004 on the functions, tasks, powers and organizational structure of the Ministry of Trade;

At the proposal of the director of the Export and Import Department,

DECIDES:

Article 1.- To amend Article 13, Section E in Appendix 2 to the Trade Minister’s Decision No. 1420/2004/QD-BTM of October 4, 2004 promulgating the Regulation on issuance of Vietnam’s certificates of origin - form D for enjoyment of preferences under the “Agreement on the Common Effective Preferential Tariffs (CEPT) Scheme for the establishment of the ASEAN Free Trade Area (AFTA)”.

To supplement Rule 4 of Appendix 1 Rules of Origin for the CEPT Agreement, issued together with the Trade Minister’s Decision No. 1420/2004/QD-BTM of October 4, 2004 promulgating the Regulation on issuance of Vietnam’s certificates of origin - form D for enjoyment of preferences under the “Agreement on the Common Effective Preferential Tariffs (CEPT) Scheme for the establishment of the ASEAN Free Trade Area (AFTA)”.

To supplement Appendix 8 to the Trade Minister’s Decision No. 1420/2004/QD-BTM of October 4, 2004 promulgating the Regulation on issuance of Vietnam’s certificates of origin - form D for enjoyment of preferences under the “Agreement on the Common Effective Preferential Tariffs (CEPT) Scheme for the establishment of the ASEAN Free Trade Area (AFTA)”, regarding the Rules of Origin applicable to wheat flour.

Article 2.- This Decision takes effect 15 days after its publication in the Official Gazette.

Article 3.- The director of the Office, the director of the Organization and Personnel Department, the director of the Export and Import Department and the heads of the concerned agencies of the Ministry of Trade shall have to implement, or guide the implementation of, this Decision.

For the Trade Minister
Vice Minister
PHAN THE RUE

To amend Article 13, Section E of Appendix 2 as follows:

(a) Form-D C/O must be produced to the customs office of the importing member country within six (6) months as from the date of endorsement by the competent agency of the exporting member country.

(b) Where a form-D C/O is submitted to the relevant government agency of the importing member country after the expiration of the time limit for its submission, such form-D C/O shall still be accepted if the failure to observe the time limit results from force majeure or other plausible reasons beyond the control of the exporter; and,

(c) In all circumstances, the relevant agency of the importing member country may accept such form-D C/O provided that the goods have been imported before the expiration of the time limit of the said form-D C/O.

To supplement Rule 4 of Appendix 1 as follows:

Appendix 1

RULES OF ORIGIN FOR THE CEPT AGREEMENT

(Issued together with the Trade Minister’s Decision No. 151/2005/QD-BTM of January 27, 2005)

Rule 4: Cumulative rule of origin

(a) Products which satisfy the origin requirements provided for in Rule 1 and are used in a member country as inputs of a finished product eligible for preferential treatment in other member countries shall be regarded as products originating in the member country where the processing of the finished product has taken place provided that the aggregate ASEAN content of the final product is not smaller than 40%.

(b) For raw materials, auxiliary materials, accessories or products of the last producing country, which have the local/ASEAN content of under 40% but above or equal to 20%, they shall be issued form-D C/O for direct calculation into the products having cumulative origin with the following conditions:

(i) The formula for calculation is like that for calculation of local/ASEAN content;

(ii) Being ineligible for enjoyment of CEPT rates;

(iii) The C/O-issuing agency must stamp “FOR CUMULATION PURPOSES ONLY” on such form-D C/O;

(iv) The relevant provisions stated in Appendix 2 (including Article 17) to the Trade Minister’s Decision No. 1420/2004/QD-BTM of October 4, 2004 promulgating the Regulation on issuance of Vietnam’s certificates of origin - form D for enjoyment of preferences under the “Agreement on the Common Effective Preferential Tariffs (CEPT) Scheme for the establishment of the ASEAN Free Trade Area (AFTA)” shall apply to these form-D C/Os.

To supplement Appendix 8 as follows:

Appendix 8

(Issued together with the Trade Minister’s Decision No. 151/2005/QD-BTM of January 27, 2005)

RULES OF ORIGIN FOR THE CEPT AGREEMENT, APPLICABLE TO WHEAT
FLOUR

SUBSTANTIAL TRANSFORMATION CRITERION

A. General provisions

Rule 1: The original country means the place where the final substantial transformation process is carried out to turn out a new product. Raw materials and auxiliary materials in the substantial transformation process in a country shall be regarded as products of such country.

Rule 2: Wheat flour shall be regarded as having gone through the substantial transformation process when it is produced or processed into a new commercial product.

Rule 3: A new commercial product shall be regarded as having gone through the production or processing process if the following changes have been made:

(i) Peculiarities or trade designs

(ii) Basic characteristics

(iii) Use purposes.

Rule 4: Upon decision on whether goods have gone through the substantial transformation process or not, the following criteria shall be considered:

4.1. Material changes of raw materials and materials after production or processing;

4.2. The production or processing duration in the implementing country;

4.3. The complexity of the production or processing process in the implementing country;

4.4. Professional qualifications and/or technologies requiring the conduct of the production or working process.

B. Particularity Rule applicable to wheat flour

Rule 5: Wheat flour shall be regarded as a product originating from ASEAN when wheat is industrially ground in one ASEAN country before being exported to another ASEAN country.

                        HS code                             Description of goods
                           1101                                        Wheat flour  

             Rule of transformation                             Notes
                  Change of chapter                        Ground from wheat

Origin certification

The procedures for issuance of form-D C/O for the CEPT/AFTA Rule of Origin are prescribed in Appendix 2 to the Trade Minister’s Decision No. 1420/2004/QD-BTM of October 4, 2004.

C/O

Rule 6: C/O issued by the competent agency of the exporting ASEAN member country must be authentic and for wheat flour, it must originate from ASEAN.

Rule 7: C/O must be produced at customs offices of the importing countries together with other relevant documents.

Rule 8: When there appears any dispute over the authenticity of the ASEAN origin, such dispute shall be settled according to the ASEAN Dispute Settlement Mechanism (DSM). In this case, the customs office shall make customs clearance for goods with doubted truthfulness after the importer provides the customs office with the exporting country’s letter of certification.-