Circular No. 21/2019/TT-BCT dated 08 November 2019 of the Ministry of Industry and Trade providing the rules of origin under the ASEAN-Hong Kong, China Free Trade Agreement

CIRCLAR

Providing the rules of origin under the ASEAN-Hong Kong, China Free Trade Agreement^[1]

Pursuant to the Government’s Decree No. 98/2017/ND-CP of August 18, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government’s Decree No. 31/2018/ND-CP of March 8, 2018, detailing the Law on Foreign Trade Management regarding goods origin;

Pursuant to ASEAN-Hong Kong, China Free Trade Agreement concluded in the Union of Myanmar on March 28, 2018;

At the proposal of the Director of the Agency of Foreign Trade,

The Minister of Industry and Trade promulgates the Circular providing the rules of origin under the ASEAN-Hong Kong, China Free Trade Agreement.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Circular provides the rules of origin under the ASEAN-Hong Kong, China Free Trade Agreement (below abbreviated as AHKFTA).

Article 2.Subjects of application

This Circular applies to:

1. Agencies and organizations issuing certificates of origin (C/O) (below referred to as issuing authorities).

2. Traders, agencies, organizations and individuals engaged in activities concerning goods origin.

Article 3.Interpretation of terms

In this Circular, the terms below are construed as follows:

1.Aquaculturemeans the farming of aquatic organisms including fish, mollusks, crustaceans, other aquatic invertebrates and aquatic plants, from seedstock 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, etc.

2.CIFmeans the value of the good imported, inclusive of the cost of freight and insurance, up to the port or place of entry into the importing Party.

3.FOBmeans the free-on board value of the good, inclusive of the cost of freight, to the port or site of final shipment before the good-carrying ship departs.

4.Generally accepted accounting principlesmeans the principles which have been recognized or applied in a Party 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 as well as detailed standards, practices and procedures for implementation.

5.Goodmeans a material or product, which can be wholly obtained or produced, even if it is intended for later use as a material in another production process. In this Circular, the terms “good” and “product” can be used interchangeably.

6.Identical and interchangeable materialsmeans 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, or mere visual examination.

7.Materialmeans any matter or substance used or consumed in the production of a good or physically incorporated into another good or subjected to a process in the production of another good.

8.Non-originating good or non-originating materialmeans a good or material that does not qualify as originating in accordance with the provisions of this Circular.

9.Originating good or originating materialmeans a good or material that qualifies as originating in accordance with the provisions of this Circular.

10.Packing material and container for transportationmeans the material or container used to protect a good during its transportation, different from that container or material used for its retail sale.

11.Preferential tariff treatmentmeans tariff concessions granted to originating goods as reflected by the tariff rates applicable under AHKFTA.

12.Productionmeans methods of obtaining goods, including growing, mining, harvesting, raising, breeding, extracting, gathering, aquaculture, collecting, capturing, fishing, trapping, hunting, manufacturing, producing, processing or assembling goods.

13.Product specific rules (PSR)means the rules set out in Appendix I to this Circular. For the purpose of identifying the origin of a good, the materials used to produce such good must meet one of the following origin criteria:

a/ Change in tariff classification (CTC);

b/ Specific manufacturing or processing operation (SP);

c/ Regional value content (RVC);

d/  Combination of any of the criteria mentioned at Points a, b and c of this Clause.

14. Back-to-back C/O, Form AHK (MC) means a C/O issued by an exporting intermediate Party based on the original C/O (Form AHK) issued by the first exporting Party.

15.Exportermeans a natural or legal person located in the territory of a Party where a good is exported from by such a person.

16.Importermeans a natural or legal person located in the territory of a Party where a good is imported into by such a person.

17.Producermeans a natural or legal person that carries out production in the territory of a Party.

18.Simplemeans an activity which does not need special skills, machines, apparatus or equipment especially produced or installed for carrying out the activity.

19.Simple mixingmeans an activity which does not need special skills, machines, apparatus or equipment especially produced or installed for carrying out the activity. Simple mixing does not include chemical reaction. Chemical reaction means a process (including a biochemical process) which results in a molecule with a new structure by breaking intra-molecular bonds and by forming new intra-molecular bonds, or by altering the spatial arrangement of atoms in a molecule.

20.Slaughteringmeans the mere killing of animals and subsequent processes such as cutting, chilling, freezing, salting, drying or smoking, for the purpose of preservation for storage and transport.

Article 4.Certification and inspection of origin of goods in Vietnam

1. To issue together with this Circular the following appendices:

a/ Appendix I: Product Specific Rules;

b/ Appendix II: Form of C/O (Form AHK);

c/ Appendix III: Guidance to fill in C/Os (Form AHK) for exported goods;

d/ Appendix IV: List of Vietnam’s authorities issuing C/Os (Form AHK);

dd/ Appendix V: List of data requirements.

2. The list of Vietnam’s authorities issuing C/Os (Form AHK) is provided in Appendix IV to this Circular and updated at the Ministry of Industry and Trade’s electronic C/O grant and management system at www.ecosystem.gov.vn. Authorities issuing C/Os (Form AHK) shall register and update seal and signature specimens according to the Ministry of Industry and Trade’s regulations.

3. The process of certification and inspection of origin of goods must comply with the Government’s Decree No. 31/2018/ND-CP of March 8, 2018, detailing the Law on Foreign Trade Management regarding goods origin, and other related regulations.

Chapter II

RULES OF ORIGIN

Article 5.Originating goods

A good imported into a Party from another Party shall be treated as originating if it satisfies one of the following rules of origin and other provisions of this Circular:

1. Being wholly obtained or produced in the exporting Party as prescribed in Article 6 of this Circular.

2. Being produced in the exporting Party exclusively from originating materials from one or more than one Party.

3. Being produced in the exporting Party from non-originating materials, provided that the good meets the conditions prescribed in Article 7 of this Circular.

Article 6.Wholly obtained goods

In pursuance to Clause 1, Article 5 of this Circular, the following goods shall be considered wholly obtained or produced in the exporting Party:

1. Plants and plant products (including fruits, flowers, vegetables, trees, seaweed, fungi and live plants) grown, harvested, picked or gathered in a Party.

2. Live animals (including mammals, birds, fish, crustaceans, mollusks, reptiles, bacteria and viruses) born and raised in a Party.

3. Goods obtained from live animals in a Party.

4. Goods obtained from hunting, trapping, fishing, farming, aquaculture, gathering or capturing conducted in a Party.

5. Minerals and other naturally occurring substances, excluding the products prescribed in Clauses 1 thru 4 of this Article, extracted or taken from the soil, waters, seabed or beneath the seabed in a Party.

6. Products of sea-fishing extracted or taken by vessels registered with the exporting Party and entitled to fly the flag of that Party, and minerals and other naturally occurring substances extracted or taken from the waters, seabed or beneath the seabed outside the waters of the exporting Party, provided that that Party has the right to exploit such waters, seabed and beneath the seabed in accordance with international law. International law refers to generally accepted international law, including the 1982 United Nations Convention on the Law of the Sea.

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

9. Goods which are wastes and scraps derived from production and consumption in a Party, provided that such goods are fit only for the recovery of raw materials or for recycling purposes.

10. Used goods collected in a Party, provided that such goods are fit only for the recovery of raw materials or for recycling purposes.

11. Goods obtained or produced in the exporting Party exclusively from the products referred to in Clauses 1 thru 10 of this Article.

Article 7.Not wholly obtained goods

1. A good referred to in Clause 3, Article 5 of this Circular, except those prescribed in Clause 2 of this Article, shall be treated as originating if it has a RVC of not less than 40% calculated using the formula prescribed in Article 8 of this Circular.

2. A good shall be treated as originating if it meets the origin criteria prescribed in Appendix I to this Circular.

Article 8.RVC calculation formulas

1. RVC means regional value content which is expressed in a percentage. The formulas for calculating RVC are prescribed as follows:

a/ Direct calculation formula:

or

b/ Indirect calculation formula:

Vietnam shall apply the indirect calculation formula prescribed at Point b, Clause 1 of this Article to determine the origin of exported goods under AHKFTA.

2. In the RVC calculation formulas prescribed in Clause 1 of this Article:

a/AHKFTA material costis the value of originating materials, parts or goods that are acquired or self-produced by the producer in the production of the good.

b/VNMis the CIF value at the time of importation or the earliest ascertained price paid for non-originating materials, parts or goods that are acquired by the producer in the production of the good. Non-originating materials include materials of undetermined origin.

c/Direct labor costincludes wage, remuneration and other employee benefits associated with the manufacturing process.

d/Direct overhead costincludes, but is not limited to, 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 plants and equipment; factory security; insurance (plants, 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 plants 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 good; 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 components.

e/Other costsare the costs incurred in placing the good in the ship or other means of transport for export including, but not limited to, domestic transport costs, storage and warehousing, port handling, brokerage fees.

3. The value of goods under this Circular shall be determined in accordance with the Customs Valuation Agreement.

Article 9.Accumulation

A good which complies with the rules of origin of one Party and is used in another Party as a material for a finished good eligible for preferential tariff treatment shall be considered to be originating in the latter Party where working or processing of the finished goods has taken place.

Article 10.Minimal operations and processes

1. A good shall not be considered to be originating in the territory of a Party if the following operations are undertaken exclusively by itself or in combination in the territory of that Party:

a/ Preserving operations to ensure that the good remains in good condition during transport and storage;

b/ Changes of packaging, breaking-up and assembly of packages;

c/ Simple washing, cleaning, and removal of dust, oxide, oil, paint or other coverings;

d/ Simple painting and polishing operations;

dd/ Husking, partial or total bleaching, polishing and glazing of cereals and rice;

e/ Operations to color sugar or form sugar lumps;

g/ Simple peeling, stoning, or un-shelling;

h/ Sharpening, simple grinding or simple cutting;

i/ Sifting, screening, sorting, classifying, grading, matching;

k/ Simple placing in bottles, cans, flasks, bags, cases, boxes, fixing on cards or boards and all other simple packaging operations;

l/ Affixing or printing marks, labels, logos and other like distinguishing signs on products or their packaging;

m/ Simple mixing of products, whether or not of different kinds;

n/ Simple assembly of parts of articles to constitute a complete article or disassembly of products into parts;

o/ Simple testing or calibrations; or,

p/ Slaughtering of animals.

2. A good originating in the territory of a Party shall retain its initial originating status, when exported from another Party where operations undertaken have not gone beyond the simple operations and processes referred to in Clause 1 of this Article.

Article 11.Direct consignment

1. Preferential tariff treatment shall be applied to goods satisfying the requirements provided in this Circular and which are consigned directly from the exporting Party to the importing Party.

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

a/ Goods transported from the exporting Party to the importing Party; or,

b/ Goods transported through one or more than one Party other than the exporting Party and the importing Party, or through a non-Party, 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,

- The goods have not undergone any operation there other than unloading and reloading or any other operation to preserve them in good condition.

Article 12.De Minimis

1. A good that does not satisfy the CTC criterion shall be considered originating if the value of all non-originating materials used in its production does not exceed 10% of the FOB value of the good and the good meets all other rules of origin prescribed in this Circular.

2. In case of applying the RVC criterion, the value of non-originating materials referred to in Clause 1 of this Article shall be included in the value of non-originating materials.

Article 13.Packing and packaging materials and containers

1. Packing materials and containers for transportation and shipment of a good shall be disregarded when determining the origin of the good.

2. Packaging materials and containers in which the good is packaged for retail sale, which are classified with the good shall be disregarded in determining the origin of the good, provided that:

a/ The good is wholly obtained as prescribed in Clause 1, Article 5 of this Circular;

b/ The good is produced wholly in the territory of a Party as prescribed in Clause 2, Article 5 of this Circular;

c/ The good meets the CTC criterion prescribed in Appendix I to this Circular

3. If a good is subject to the RVC criterion, the value of the packaging materials and containers in which the good is packaged for retail sale shall be regarded when determining the origin of the good.

Article 14.Accessories, spare parts and tools

1. If a good is subject to the CTC or SP criterion, the origin of accessories, spare parts, tools and instructional or other information materials presented with the good shall be disregarded in determining the origin of the good, provided that:

a/ The accessories, spare parts, tools and materials are invoiced together with the good;

b/ The quantities and value of the accessories, spare parts, tools and materials are customary for the good.

2. If a good is subject to the RVC criterion, the value of the accessories, spare parts, tools and instructional or information materials shall be regarded as the value of the originating or non-originating materials, as the case may be, in calculating the RVC of the good.

Article 15.Neutral elements

When determining the origin of a good, it shall not be required to determine the origin of the following neutral elements which are used in its production but 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, and safety equipment and supplies.

6. Equipment, devices and supplies used for testing or inspecting the good.

7. Catalysts and solvents.

8. Any other materials that are not incorporated into the good but the use of which in the production of the good can reasonably be demonstrated to be a part of that production.

Article 16.Identical and interchangeable materials

1. The determination of whether identical and interchangeable materials used in the production process are originating materials shall be made either by physical segregation of each of the materials or by the use of generally accepted accounting principles on stock control or inventory management practices applicable in the exporting Party.

2. Once a decision has been taken on the inventory management method, that method shall be used throughout the fiscal year.

Chapter III

PROCESS OF CERTIFICATION AND EXAMINATION OF ORIGIN OF GOODS

Article 17.Pre-exportation examination

The producer or exporter of a good eligible for preferential tariff treatment may request an issuing authority to conduct pre-exportation examination and verification of the origin of the good. The result of pre-exportation examination and verification, subject to review periodically or whenever appropriate, shall be accepted as the supporting evidence in determining the origin of the said good to be exported thereafter. The pre-exportation examination may not apply to the good of which, by its nature, origin can be easily determined.

Article 18.Submission of dossiers of application for C/Os

At the time of carrying out procedures for exporting goods under preferential tariff treatment, the exporter or its authorized representative shall submit a written application or an e-application for a C/O (Form AHK), enclosed with appropriate supporting documents proving that the goods to be exported qualify for the issuance of a C/O (Form AHK).

Article 19.Examination of dossiers of application for C/Os

Issuing authorities shall examine each application for a C/O (Form AHK) to ensure that:

1. The origin of the good is in conformity with the provisions of this Circular.

2. The other details in the C/O (Form AHK) correspond to the enclosed supporting documents.

3. The description, quantity and weight of the goods, marks and number of packages, number and kinds of packages, as specified, conform to the good to be exported.

4. The application and the C/O (Form AHK) are duly completed and signed either manually or electronically by the authorized signatory.

Article 20.Form of C/Os (Form AHK)

In order to enjoy preferential tariff treatment, a good must obtained a C/O (form AHK) issued by a competent agency or organization of the exporting Party.

1. C/Os (Form AHK) must comply with the form provided in Appendix II, which is formulated by Parties based on the list of data requirements provided in Appendix V to this Circular.

2. A C/O (Form AHK) shall comprise 1 original and 2 copies.

3. A C/O (Form AHK) must:

a/ Be in hardcopy;

b/ Bear a unique reference number separately given by each issuing authority;

c/ Be in English language; and,

d/ Bear an authorized signature and seal of the issuing authority. The signature and seal may be applied electronically.

4. The FOB value of goods, when the RVC criterion is applied, needs to be indicated on the C/O (Form AHK) for goods that are exported from one ASEAN member state to another ASEAN member state, and from Hong Kong, China, to ASEAN member states, but need not be indicated if the goods are exported from ASEAN member states to Hong Kong, China.

5. The original C/O (Form AHK) shall be forwarded by the exporter to the importer for submission to the customs authority of the importing Party. Two copies shall be retained by the issuing authority of the exporting Party and the exporter.

6. Multiple goods declared on the same C/O (Form AHK) shall be allowed, provided that each good is originating in its own right.

Article 21.Treatment of erroneous declaration in the C/O

Neither erasures nor superimpositions shall be allowed on a C/O (Form AHK). Any alteration shall be made by either of the following methods:

1. Striking out the erroneous materials and making any addition required. Such alteration shall be approved by an official authorized to sign the C/O (Form AHK) and certified by the issuing authority. Any unused spaces shall be crossed out to prevent any subsequent addition; or,

2. Issuing a new C/O (Form AHK) to replace the erroneous one.

Article 22.Issuance of C/Os

1. A C/O (Form AHK) shall be issued by a issuing authority of the exporting Party prior to shipment or at the time of shipment but shall not be issued more than 3 working days after the declared shipment date.

2. In case a C/O (Form AHK) has not been issued at the time prescribed in Clause 1 of this Article due to unintentional errors or omissions or other valid causes, the C/O (Form AHK) may be issued retroactively but no longer than 1 year from the date of shipment and shall be duly marked “Issued Retroactively” in Item No. 13

Article 23.Back-to-back C/O (Form AHK)

An issuing authority of an intermediate exporting Party shall issue a back-to-back C/O at the request of the exporter while the good is passing through that intermediate exporting Party, provided that:

1. A valid original C/O (Form AHK) or its valid certified copy is presented;

2. The period of validity of the back-to-back C/O does not exceed the period of validity of the original C/O (Form AHK).

3. The good which is to be re-exported using the back-to-back C/O shall remain under the supervision of the intermediate Party. Such supervision includes documentary controls or any risk management procedures at the request of competent authorities of the intermediate Party. The good must not undergo any further processing in the intermediate Party, except repacking or logistics activities such as unloading, reloading, storing, or any other operations necessary to preserve them in good condition or to transport them to the importing Party.

4. The back-to-back C/O contains relevant information from the original C/O (Form AHK) pursuant to the List of data requirements provided Appendix V to this Circular. The FOB value shall be the FOB value of the good exported from the intermediate exporting Party.

5. In case the information is not complete or circumvention is suspected, the final importing Party may request the original C/O (Form AHK) be submitted to its respective competent authority.

6. The process of examination and verification of origin of goods prescribed in Article 30 of this Circular shall also apply to back-to-back C/Os.

Article 24.Loss, mislaying or destruction of C/Os (Form AHK)

In case a C/O (Form AHK) is lost, mislaid or destroyed, the exporter may apply in writing to the issuing authority for a certified true copy of the original C/O (Form AHK) or its copies. The certified copy shall be made on the basis of the export documents archived at the issuing authority and bear the words “CERTIFIED TRUE COPY”. This copy shall bear the date of issuance of the original C/O (Form AHK). The certified true copy of a C/O (Form AHK) shall be issued no longer than 1 year from the date of issuance of the original C/O (Form AHK).

Article 25.Presentation of C/Os (Form AHK)

1. In order to enjoy preferential tariff treatment in accordance with the law of the importing Party, the importer shall submit to the customs authority of the importing Party at the time of import, a customs declaration, a C/O (Form AHK) and other supporting documents (including commercial invoices and, when required, bill of lading or other related transportation documents) issued in the territory of the exporting Party and other documents as required in accordance with law of the importing Party.

2. If rejecting a C/O (Form AHK), the customs authority of the importing Party shall mark on the corresponding item in Item No. 4 of the C/O (Form AHK) and the original C/O (Form AHK) shall be returned to the issuing authority within a reasonable period but not exceeding 60 days from the date of rejection. The issuing authority shall be duly notified of the grounds for the denial of preferential tariff treatment.

3. In case a C/O (Form AHK) is rejected as stated in Clause 2 of this Article, the importing Party shall accept and consider the clarification made by the issuing authority and assess again whether or not the C/O (Form AHK) can be accepted for the grant of the preferential tariff treatment. The clarifications shall be detailed and exhaustive in addressing the grounds of denial of preferential tariff treatment raised by the importing Party. If a clarification made by the issuing authority satisfies the requirements of this Circular, the importing Party shall accept the C/O (Form AHK) and grant preferential tariff treatment in accordance with its law.

Article 26.Validity period of C/Os (Form AHK)

1. The time limit for submission of a C/O (Form AHK) is prescribed as follows:

a/ The C/O (Form AHK) shall be valid for a period of 1 year from the date of issuance and shall be submitted to the customs authority of the importing Party within that period;

b/ In case the C/O (Form AHK) is submitted to the customs authority of the importing Party after the expiration of the time limit for its submission, such C/O shall still be accepted if the failure to observe the time limit for its submission results fromforce majeureor other valid causes beyond the control of the importer or the exporter.

2. In all cases, the customs authority of the importing Party may accept such C/O (Form AHK) provided that the good has been imported before the expiration of the time limit of the said C/O

Article 27.Waiver of C/Os (Form AHK)

1. In case of a consignment of goods originating in the exporting Party and having a FOB value not exceeding USD 200, the presentation of C/O (Form AHK) shall be waived and the use of simplified declaration by the exporter that the goods in question have originated in the exporting Party shall be accepted. Goods sent through the post with a FOB value not exceeding USD 200 shall also be similarly treated.

2. In addition to the case prescribed in Clause 1 of this Article, a Party may elect not to require submission of a C/O (Form AHK).

Article 28.Treatment of minor discrepancies

1. In case the origin of the goods is not in doubt, minor discrepancies such as typographical errors in the C/O (Form AHK) or errors in other documents included in the dossier submitted to the customs authority of the importing Party to carry out import procedures shall not invalidate the C/O (Form AHK), if such discrepancies correspond to the actually imported goods.

2. In case there is difference on tariff classification (HS code) of a good between the exporting Party and the importing Party, the good shall be released at the most-favored-nation import duty rate or at the AHKFTA preferential import duty rate, subject to the compliance of the applicable rules of origin, and no penalty or other charges shall be imposed on the importer in accordance with law of the importing Party. Once the difference on HS code classification has been resolved, the AHKFTA preferential import duty rate shall be applied and any overpaid amount shall be refunded in accordance with the law of the importing Party.

3. For multiple items declared under the same C/O (Form AHK), a problem encountered with one of the items shall not affect or delay the grant of preferential tariff treatment and customs clearance of the remaining items listed. The handling of problematic items must comply with Point c, Clause 1, Article 30 of this Circular.

Article 29.Record keeping requirements

1. For the purposes of inspection and verification of origin of goods under Article 30 of this Circular, the producer or exporter applying for a C/O (Form AHK) shall keep its supporting records and application dossiers for at least 3 years from the date of issuance of the C/O (Form AHK) in accordance with the law of the exporting Party.

2. The dossier of application for a C/O (Form AHK) and all documents related to such application shall be retained by the issuing authority for at least 3 years from the date of issuance.

3. Information relating to the validity of the C/O (Form AHK) shall be furnished by the issuing authority of the exporting Party upon request of the importing Party.

4. Any information communicated between the Parties concerned shall be treated as confidential and shall be used for purpose of authenticating the validation of the C/O (Form AHK) only.

Article 30.Inspection and verification after issuance of C/Os

1. The competent authority of the importing Party may request the competent authority of the exporting Party to conduct a retroactive inspection at random or when it has reasonable doubt as to the authenticity of the document or as to the accuracy of the information regarding the true origin of the goods in question or of certain parts thereof. Upon such request, the competent authority of the exporting Party shall conduct a retroactive inspection or verification on the exporter or producer, subject to the following conditions:

a/ The request for inspection shall be accompanied with the C/O (Form AHK) concerned and shall specify the reasons and any additional information suggesting that the particulars given on the said C/O (Form AHK) may be inaccurate, unless the retroactive inspection is requested on a random basis.

b/ The competent authority of the exporting Party receiving a request for retroactive inspection shall respond to the request promptly and transmit the results of the retroactive inspection to the importing Party within 90 days upon the receipt of the request.

c/ The competent authority of the importing Party may suspend the grant of preferential tariff treatment pending the inspection results. However, the competent authority of the importing Party may release the good to the importer and concurrently apply administrative measures deemed necessary, provided that such good is not subject to import prohibition or restriction and there is no suspicion of origin fraud. In the event that a determination is made by the importing Party that the good qualifies as an originating good, any suspended preferential tariff treatment shall be reinstated;

d/ The competent authority of the importing Party shall, after receipt of the inspection result from the exporting Party, determine whether or not the good is an originating good. The entire process of inspection, including the process of notifying the competent authority of the exporting Party the result of the determination of whether or not the good is an originating good, shall be completed within 180 days upon the receipt of the request for inspection.

2. If the competent authority of the importing Party disagrees with the inspection result stated in Clause 1 of this Article, it may, under exceptional cases, request for verification visit to the premises of the exporting Party in accordance with the following conditions:

a/ Before conducting the verification visit, the competent authority of the importing Party shall deliver a notice to:

- The exporter or producer whose premises are to be visited;

- The competent authority of the exporting Party;

- The importer of the goods that are subject to the verification visit.

The aforesaid notice must contain the following details:

- The name and contact details of the competent authority issuing the request;

- The name of the exporter or producer whose premises are to be visited;

- The proposed date for the verification visit;

- The objective and scope of the proposed verification visit, including specific reference to the goods that are subject to the verification;

- The names and titles or positions of the officials of the importing Party performing the verification visit.

Before conducting the verification visit, the competent authority of the importing Party must obtain the written consent of the exporter or producer whose premises are to be visited.

b/ In case a written consent from the exporter or producer is not obtained within 30 days upon receipt of the notice of the verification visit stated at Point a, Clause 2 of this Article, the importing Party may deny preferential tariff treatment to the good that would have been the subject of the verification visit.

c/ The competent authority of the exporting Party receiving the written request may postpone the proposed verification visit and notify the competent authority of the importing Party of such intention. Notwithstanding any postponement, any verification visit shall be carried out in accordance with law of the exporting Party within 60 days upon the date of receipt of the notice, or for a longer period as the concerned Parties may agree. The arrangement of the verification visit shall be agreed by the competent authorities of the importing and exporting Parties.

d/ The competent authority of the importing Party conducting the verification visit shall provide the concerned exporter or producer and the competent authority of the exporting Party, with a written determination of whether or not the subject goods qualify as originating goods.

dd/ Any suspended preferential tariff treatment shall be reinstated upon the written determination referred to at Point d, Clause 2 of this Article that the goods qualify as originating goods.

e/ The exporter or producer shall have 30 days, upon receipt of the written determination that the goods are non-originating to provide to the competent authority of the importing Party additional information to prove that the goods qualify as originating goods. If the goods are still determined to be non-originating, the final written determination shall be communicated by the competent authority of the importing Party to the competent authority of the exporting Party within 30 days upon receipt of additional information from the exporter or producer.

g/ The verification visit including the actual visit and determination of whether the subject goods are originating or not, shall be carried out and its results communicated to the competent authority of the exporting Party within 180 days upon receipt of the notice stated at Point a, Clause 2 of this Article. While awaiting the results of the verification visit, Point c, Clause 1 of this Article on the suspension of preferential tariff treatment shall be applied.

3. Each Party shall maintain the confidentiality of information and documents relating to the inspection and verification of goods origin stated in Clauses 1 and 2 of this Article and shall protect such information from disclosure that could prejudice the competitive position of the person who provided the information. The information and documents shall not be used for other purposes, including being used in administrative and criminal proceedings, without the written permission of the Party providing such information.

Article 31.Documentation for implementation of regulations on direct consignment

In accordance with Article 11 of this Circular, in case a good is transported through the territory of one or more than one non-Party to the AHKFTA, the following documents must be produced to the competent authority of the importing Party:

1. The bill of lading or other related transportation documents issued in the exporting Party.

2. A C/O (Form AHK) issued by the relevant issuing authority of the exporting Party, except cases not requiring a C/O under Article 27 of this Circular.

3. A copy of the original commercial invoice of the goods.

4. Documents evidencing that the transportation meets the requirements of Point b, Clause 2, Article 11 of this Circular.

Article 32.Exhibition goods

1. Goods sent from an exporting Party for exhibition in another Party and sold during or after the exhibition for importation into a Party shall be granted preferential tariff treatment under accorded AHKFTA on the condition that the goods meet the rules of origin prescribed in this Circular, and provided that it is shown to the satisfaction of the relevant customs authority of the importing Party that:

a/ An exporter has dispatched those goods from the territory of the exporting Party to the Party where the exhibition is held and has exhibited them there;

b/ The exporter has sold the goods or transferred them to a consignee in the importing Party;

c/ The goods have been consigned during the exhibition or immediately thereafter to the importing Party in the state in which they were sent for the exhibition.

2. In order to implement the provisions in Clause 1 of this Article, the C/O (Form AHK) shall be provided to the customs authority of the importing Party, clearly indicating the name and address of the exhibition. The competent authority or relevant customs authority of the Party where the exhibition took place may provide evidence together with supporting documents prescribed in Clause 4, Article 31 of this Circular for identification of the goods and the conditions under which they were exhibited.

3. Clause 1 of this Article shall apply to any trade, agricultural or crafts exhibition, fair or similar show or display in shops or business premises for the purpose of sale and where the goods remain under customs control during the exhibition.

Article 33.Third party invoicing

1. The competent authority of the importing Party shall accept C/Os (Form AHK) in case the commercial invoice is issued either by a company located in a third party or by an exporter representing the said company, provided that the goods satisfy regulations on rules of origin prescribed in this Circular.

2. The exporter shall mark on the Cell indicating “Third party invoicing” and such information as name and country/party of the company issuing the invoice in the C/O (Form AHK).

Chapter IV

IMPLEMENTATION PROVISIONS

Article 34.Organization of implementation

1. Guidelines, explanations and clarifications relating to the Chapter on Rules of Origin which are consented by Parties one after another or consented in writing at meetings of the AHKFTA Joint Committee and Sub-Committee on Rules of Origin shall serve as grounds for implementation by issuing authorities and customs authorities.

2. The contents referred to in Clause 1 of this Article shall be notified to issuing authorities and customs authorities through the contact point for implementation of AHKFTA under Article 3 of the Government’s Resolution No. 03/NQ-CP of January 7, 2019, approving the ASEAN-Hong Kong, China Free Trade Agreement.

Article 35.Implementation provisions

1. This Circular takes effect on December 23, 2019.

2. Issuing authorities shall grant C/Os (Form AHK) to exported goods of Vietnam before the effective date of this Circular in order to enjoy preferential tariff treatment under AHKFTA and regulations of importing Parties.

3. Customs authorities of importing Parties shall accept C/Os (Form AHK) issued from June 11, 2019. Procedures for examination of C/Os (Form AHK) for grant of preferential tariff treatment must comply with the AHKFTA, provisions of Chapter III of this Circular and other relevant legal documents.-

Minister of Industry and Trade
TRAN TUAN ANH

* The appendices to this Circular are not translated.