CIRCULAR

INTRODUCING RULES OF ORIGIN IN VIETNAM – CUBA TRADE AGREEMENT

Pursuant to the Government’s Decree No. 98/2017/ND-CP dated 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 dated March 08, 2018 on guidelines for the Law on Foreign Trade Management regarding origin of goods;

For implementation of Vietnam – Cuba Trade Agreement signed on November 09, 2018 in Vietnam;

At the request of the Director of the Agency of Foreign Trade;

The Minister of Industry and Trade promulgates a Circular introducing Rules of Origin in Vietnam – Cuba Trade Agreement.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular introduces Rules of Origin in the Vietnam – Cuba Trade Agreement (hereinafter referred to as “Agreement”).

Article 2. Regulated entities   

This Circular applies to:

1. Organizations and authorities authorized to issue Certificate of Origin (C/O);

2. Traders;

3. Regulatory authorities, organizations and individuals involved in the origin of imports and exports under the Agreement.

Article 3. Definitions

For the purposes of this Circular, the terms below are construed as follows:

1. “Change in tariff heading - CTH” means that all non-originating materials used in the production of the good must have undergone a change in tariff classification at the 4-digit level.

2. “Chapter”, “Heading” and “Sub-heading” means Chapter (2-digit codes), Heading (4-digit codes) and Sub-heading (6-digit codes) used in the Harmonized Commodity Description and Coding System which is referred to as “Harmonized System” or “HS” herein.

3. “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. The valuation shall be determined in accordance with the Customs Valuation Agreement.

4. “classified” means the classification of a goods or material into a particular Chapter, Heading or Sub-heading in the Harmonized System.

5. “competent authorities” means the authorities responsible for management and supervision of the implementation of the Agreement. To be specific:

a) In Cuba: Ministry of Industry and Trade in cooperation with Ministry of Finance.

b) In Vietnam: Ministry of Industry and Trade.

6. “customs authorities” means the competent authorities that are responsible under the law of a Party for the administration and implementation of customs laws and regulations. To be specific:

a) In Cuba: General Department of Customs.

b) In Vietnam: General Department of Customs of Vietnam.

7. “day” means working days, excluding Saturday, Sunday and public holidays.

8. “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. The valuation shall be determined in accordance with the Customs Valuation Agreement.

9. “identical and interchangeable materials” means materials which are fungible for commercial purposes, whose properties are essentially identical, and between which it is impractical to differentiate by a mere visual examination.

10. “Good” means material or product, which may be wholly obtained/produced, even if it is intended for later use in another production operation.

11. “Harmonized System” means the internationally standardized system of names and codes for classifying traded goods. This system is developed and maintained by the Customs Organization.

12. “intermediate material” means a material that is used in the production of a good, and has characteristics allowing it to be sold independently from the final goods.

13. “materials” means raw materials, supplies, intermediate materials and/or parts used in the production of goods.

14. “packing materials and containers for transportation” means goods used to protect a good during its transportation, different from those materials and containers used for its retail sale. 

15. “production” means methods of obtaining goods, including, but not limited to, growing, farming, breeding, raising, mining, harvesting, fishing, trapping, hunting, capturing, aquaculture, gathering, collecting, extracting, manufacturing, producing, processing or assembling a good.

16. “C/O issuing authority" means any government authority or other entity authorized by the competent authority to issue a Certificate of Origin. To be specific:

a) In Cuba: Chamber of Commerce and Industry.

b) In Vietnam: Authorized authorities and entities.

17. “set of goods” means the products put up in a set for a specific purpose, packaged for retail sale and classified according to Rule 3 of the Harmonized System.

18. “origin verification report” means the document issued by the customs authority of the C/O issuing authority to provide findings of the verification of origin.

Article 4. Certification of origin and verification of proofs of origin

1. The following Annexes are enclosed with this Circular:

a) Annex I: Product Specific Rules.

b) Annex II: Certificate of Origin – Form VN-CU.

c) Annex III: Guidance on declaration of C/O - Form VN-CU for exports; 

d) Annex IV: List of Vietnam’s issuing authorities of C/O – Form VN-CU.

2. The Product Specific Rules in Annex II hereof cover all goods in the tariff schedules set out in the Agreement.

3. The list of Vietnam's issuing authorities of C/O (Form VN-CU) is introduced in Annex IV enclosed herewith and published on the Electronic Certificates of Origin System (www.ecosys.gov.vn) of the Ministry of Industry and Trade.

4. Operational procedures for certification and verification of origin of goods shall conform to the provisions in the Government’s Decree No. 31/2018/ND-CP dated March 08, 2018 providing guidelines for the Law on Foreign Trade Management regarding rules of origin and relevant Circulars.

Chapter II

METHODS OF CERTIFICATION OF ORIGIN

Article 5. Originating goods

A good shall be treated as an originating good if it is either:

1. wholly produced or obtained in the territory of a Party.

2. produced exclusively from originating materials in the territory of a Party.

3. produced from non-originating materials, provided that these materials have undergone the production entirely in the territory of a Party and the good is not classified in the same heading as these materials.

4. meets the requirement of the regional value content (RVC) of no less than X% of the FOB value of the final good. This regulation shall apply where the good does not meet the provision in Clause 3 of this Article because its production does not undergo the required change in tariff heading in respect of non-originating materials.

5. produced from non-originating materials entirely in the territory of a Party, provided that the good satisfies the product specific rules set out in Annex I enclosed herewith. This regulation shall apply where the good does not meet the provisions in Clause 3 and Clause 4 of this Article.

Article 6. Wholly obtained or produced goods

Within the meaning of Clause 1 Article 5 of this Circular, the following goods shall be considered to be wholly obtained or produced entirely in the territory of one or more of the Parties if it is:

1. a mineral good extracted from there.

2. a plant good harvested, picked, or gathered there.

3. a live animal born and raised there.

4. a good obtained by hunting, trapping, harvesting, aquaculture, fishing or capturing there.

5. fish, shellfish, or other marine life taken from the sea outside the territories of the Parties by vessels that are owned or registered by companies duly established in a Party, provided that the vessel is registered or recorded with a Party and entitled to fly the flag of that Party.

6. a good produced from fish, shellfish or other marine life on board a factory ship that is owned or registered by a company duly established in a Party and entitled to fly the flag of that Party.

7. a good taken by a Party or a person of a Party from the seabed or subsoil outside the continental shelf of that Party, provided that Party or person has the right to exploit that seabed or subsoil.

8. waste and scrap derived from production there or collected there, provided that the waste and scrap are fit for the recovery of raw materials.

9. a good produced there, exclusively from goods referred to in Clause 1 through 8 of this Article, or from their derivatives, at any stage of production.

Article 7. Accumulation

1. Originating materials of a Party, used in the production of a good in the exporting Party, shall be considered to be originating in the latter Party.

2. When the Parties have established a trade agreement in force with a same non-party country, materials from that same non-party country shall be considered as originating goods under this Agreement.

3. For the application of Clause 2 of this Article, equivalent mechanism, procedures and provisions on materials used in accumulation of origin shall be in force between the Parties.

Article 8. De Minimis

A good shall be considered as an originating good if the CIF value of all non-originating materials used in its production that did not undergo the required change in tariff classification does not exceed 10% of the FOB value of the good.

Article 9. Intermediate materials

In determining whether a good is an originating good, in the case of Clause 4 Article 5 hereof, the producer may consider the total value of intermediate materials used in the production of the originating good, provided that these intermediate materials conform with relevant provisions herein.

Article 10. Minimal operations and processes

1. Operations or processes listed below are considered to be minimal and shall not taken into account in determining whether a good is an originating good:

a) ensuring preservation of goods in good condition for the purposes of transport or storage.

b) facilitating shipment or transportation.

c) packaging or presenting goods for sale.

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

Article 11. Accessories, spare parts and tools

1. Accessories, spare parts, or tools presented with the good shall be considered as part of the good when they are invoiced together with the good and are commercially customary for the good. Accessories, spare parts, or tools shall be disregarded when determining all non-originating materials used in the production of a good which has undergone a change in tariff classification.

2. Where a good is subject to a RVC criterion, the value of the accessories, spare parts or tools described in Clause 1 of this Article shall be taken into account as originating materials or non-originating materials, as the case may be, in calculating the RVC of the good.

Article 12. Sets of Goods

1. Sets, as defined in Rule 3 of the General Rules of the Harmonized System, and goods described as sets of goods in the Harmonized System shall be considered as originating when all component goods are originating.

2. When a set is composed of both originating and non-originating goods, the set as a whole shall be considered as originating if the CIF value of non-originating goods does not exceed 15% of the FOB value of the set.

Article 13. Packaging materials and containers for retail sale

1. Where the good is subject to a RVC criterion, the value of the packaging materials and containers for retail sale shall be taken into account in origin determination because they are considered as components incorporated into the good.

2. Where the good is subject to a change in tariff classification criterion, the packaging materials and containers for retail sale are not required to meet the change in tariff classification criterion, provided that they are classified with the good.

Article 14. Packing materials and containers for transportation

Packing materials and containers for transportation of a good shall not be taken into account in determining the origin of the good.

Article 15. Neutral elements and indirect materials

In determining the origin of a good, the elements and materials used in the production of a good and listed below shall be disregarded:

1. Fuel and energy.

2. Tools, dies and moulds. Spare parts and materials used in the maintenance of equipment and buildings.

3. Lubricants, greases, compounding materials and other materials used in production or used to operate equipment and buildings.

4. Gloves, glasses, footwear, clothing, safety equipment and supplies.

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

6. Catalysts and solvents.

7. Any other materials that are not incorporated into the good but whose use 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 origin of identical and interchangeable materials shall be determined by physically separating the materials, or adopting recognized or generally accepted inventory accounting principles or an inventory management method of the exporting Party.

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

Article 17. Direct consignment

1. Originating goods shall be considered as consigned directly from the exporting Party to the importing Party in one of the following cases:

a) Goods are transported without passing through the territory of any non-Party.

b) Goods are transported for the purpose of transit through a non-Party with or without transshipment or temporary storage in that non-Party, provided that:

- a) The transit is justified for geographical reasons or transport requirements.

- The goods have not entered into trade or consumption in the territory of the non-Party.

- The goods have not undergone any further operation in the territory of the non-Party other than unloading, reloading and splitting-up/bulk breaking or any operation required to keep the goods in good condition.

2. In the case where an originating good of the exporting Party is imported through one or more non-Parties or after an exhibition in a non-Party, the customs authority of the importing Party may require importers to submit supporting documentation such as transport, customs documents or other documents.

Article 18. Goods in bonded warehouses

1. The initial origin of goods supported by a C/O shall be kept unchanged when the goods have been kept in a bonded warehouse of a third Party during transport, provided that the goods have not undergone any operation other than temporary storage, preservation of goods or splitting-up of the consignment for being transported to the Party, and the goods have been placed under the control of the customs authority.

2. Documents proving that the goods have not undergone any change must be provided if required by the customs authority of the importing Party.

Article 19. Exhibition goods

Originating goods, sent from a Party for exhibition or display in a non-Party and sold during or after the exhibition for importation to another Party, shall be eligible for preferential tariff treatment on the condition that the goods meet the requirements herein and are supported by customs documents relating to that exhibition or display.

Chapter III

OPERATIONAL PROCEDURES FOR CERTIFICATION AND VERIFICATION OF ORIGIN OF GOODS

Article 20. Certificate of Origin

1. The Certificate of Origin is the unique document that certifies that goods fulfill the origin requirements set out in this Circular and shall be used for claiming preferential tariff treatment under the Agreement.

2. The Certificate of Origin mentioned in Clause 1 of this Article shall be issued according to the specimen shown in Annex II enclosed herewith. A Certificate of Origin shall cover the goods under one consignment.

Article 21. Validity of Certificate of Origin

1. The Certificate of Origin shall be issued within three days after the time of exportation according to the provisions in Article 20 hereof and valid for one year from the date of issuance. The Certificate of Origin shall be invalid if the declared information is not sufficient or valid.

2. The Certificate of Origin must bear the name, signature and seal of the competent authority.

3. The Certificate of Origin shall not be issued prior to but in the same date or after the date of issue of the commercial invoice.

Article 22. Record keeping requirement 

Issuing authorities of C/O – Form VN-CU and traders must keep all documents proving the origin of goods and Certificates of Origin for a period of at least 5 years from the date of issuance of the written or electronic document in accordance with the law of Vietnam.

Article 23. Third Party Invoicing

In the case where the commercial invoice in respect of the originating good is issued by a registered exporter in a third Party, “Non-party invoicing” must be indicated in the Certificate of Origin.

Article 24. Issuance of Certificate of Origin

Upon request of the competent authority, the exporter that applies for a Certificate of Origin must provide supporting documents proving the originating status of the good and compliance with requirements herein.

Article 25. Application for Certificate of Origin

An application for a Certificate of Origin shall include the exporter’s written application for the Certificate of Origin and supporting documents proving that the good to be exported complies with origin requirements set out in this Circular and relevant laws.

Article 26. Denial of preferential treatment

The importing Party may deny preferential treatment where a good does not meet the requirements and prescribed time limits in this Circular.

Article 27. Modification of C/O

Neither erasures nor superimpositions shall be allowed on a C/O. Any alteration shall be made by:

1. Striking out the erroneous details and making any addition required. Such alteration shall be approved by an official authorized to sign the C/O and certified by the C/O issuing authority. Unused spaces shall be crossed out to prevent any subsequent addition.

2. Issuing a new C/O to replace the erroneous one. The new C/O shall indicate the reference number and the date of issuance of the original C/O. The new C/O must indicate the word “replaces C/O No... date of issue...”. The new C/O shall be valid from the date of issuance of the original C/O.

Article 28. Certified copy of C/O

In the event of theft, loss or destruction of a C/O, the exporter may apply to the C/O issuing authority for a certified true copy of the original. The issued copy shall bear the endorsement of the words “CERTIFIED TRUE COPY”. This copy shall bear the date of issuance of the original C/O and be valid no longer than one year from the date of issuance of the original C/O.

Article 29. Verification of origin and grant of preferential tariff treatment

1. In addition to the presentation of a valid Certificate of Origin as prescribed herein, the customs authority of the importing Party may request the competent authority of the exporting Party to provide additional information for verifying the origin of the good. The importing Party may refuse to grant preferential tariff treatment if the customs authority of the exporting Party does not give any notification of the retroactive check within 90 days after the receipt of the request. The exporting Party shall notify the results of the retroactive check within 180 days after the receipt of the request.

2. The request for retroactive check made by the customs authority of the importing Party must indicate:

a) Name of the requesting authority.

b) The reference number and date of issuance of C/O or the number of C/O issued to the exporter within a specific period.

c) Description of the request for retroactive check.

d) Reasons for the retroactive check.

3. If the origin of the good cannot still determined based on the outcome of the retroactive check prescribed in Clause 1 and Clause 2 of this Article, the customs authority of the importing Party may verify the origin of the good through the competent authority of the exporting Party by means of:

a) written requests for information sending directly to the exporter or producer;

b) written questionnaires sending to the importer, exporter or producer;

c) verification visits at the premises of the exporter or producer in the territory of the other Party to review records and documents additionally provided or to inspect facilities used in the production of the good in question in the case where the information received as the results of the actions in Point a and Point b Clause 3 of this Article is insufficient.

d) other procedures as the Parties may agree to.

4. The customs authority of the importing Party shall notify the request for origin verification to the importer, exporter or producer and the competent authority of the exporting Party according to Clause 3 of this Article. Such notification may be sent by means of certified mails or other ways; receipts of acknowledgement shall be provided upon receipt of the notification.

5. The written request for information or the written questionnaire in Point a and Point b Clause 3 of this Article shall indicate:

a) Name of the requesting authority.

b) Name of the importer, exporter and producer to be verified.

c) Information and documents requested.

d) Reasons of the request or questionnaire.

6. The importer, exporter or producer who receives a questionnaire or request for information according to Point a and Point b Clause 3 of this Article shall duly complete and return the questionnaire or respond to the request for information within 45 days from the date of receipt.

7. The request for verification visit referred to in Point c Clause 3 of this Article shall include:

a) the name of the customs authority requesting the verification visit.

b) the name of the exporter or producer to be visited;

c) the date and place of the proposed verification visit as prescribed in Clause 8 of this Article.

d) the objective and scope of the verification visit, including the specific reference to the goods subject to verification.

dd) the names and positions of the officers conducting the verification visit.

e) the legal basis for carrying out the verification visit.

8. The competent authority of the exporting Party shall give its written consent to the proposed verification visit to the customs authority of the importing Party within 30 days from the receipt of request. The verification visit shall be conducted after 60 days from the date the request was accepted.

9. The exporter or producer may notify in writing the competent authorities of the exporting Party and the importing Party to postpone the proposed verification visit with convincing reasons. The proposed verification visit shall be postponed for a period of no longer than 30 days from the date of notification or for a longer period as the customs authorities of the exporting Party and the importing Party may agree to. The customs authority of the importing Party shall notify the new date of the proposed verification visit at the premises of the exporter or producer.

10. Once the verification visit has been concluded, the customs authority of the importing Party shall make a draft report of the verification visit, which shall include the facts and results of the verification visit. The report shall be signed by the competent authority of the importing Party, exporter and producer.

11. The verification process shall be finished when the customs authority of the importing Party issues a written determination of origin after carrying out the verification of origin as prescribed in this Article within 30 days from receipt of information or conclusion of the verification visit.

12. The written determination of origin shall include the facts, results and the legal basis for the verification visit, and be sent to the importer, exporter or producer to determine whether or not the good qualified as originating.

13. The good subject to verification shall be eligible for preferential tariff treatment where:

a) no determination of origin was issued by the customs authority of the importing Party within the time limit prescribed in Clause 11 of this Article; or

b) where the importing Party has not met the time limit prescribed in this Article.

14. In the case where the customs authority of the importing Party has reasonable doubt as to the origin of a consignment, it may suspend the preferential tariff treatment to that consignment. The goods can be released in accordance with the law of the importing Party. The Party that has made a finding shall notify and engage in consultations with the other Party with a view to achieving a mutually acceptable solution.

Article 30. Responsibility of exporters

1. When the exporter has reasons to believe that the C/O contains incorrect information, the exporter shall notify promptly in writing of any change that may affect the accuracy or validity of that C/O.

2. The exporter may not be penalized for having provided an incorrect information if such incorrect information has been automatically notified to the competent authorities before the customs authority of the importing Party grants preferential tariff treatment or conducts a verification visit.

Article 31. Responsibility of importers

The customs authority of each Party shall require that the importer who claims preferential tariff treatment for an imported good should:

1. declare in writing in the importation document required by its legislation, based on a valid Certificate of Origin, that a good qualifies as an originating good;

2. provide the Certificate of Origin in his possession at the time the declaration is made as prescribed in Clause 1 of this Article if required by the law of the importing Party.

3. promptly make a corrected declaration and pay any duties owing where the importer has reasons to believe that the Certificate of Origin on which a customs declaration was based contains incorrect information.

Article 32. Refund of tariff duties

Where a good was originating but not granted preferential tariff treatment at the time of importation, the importer may, pursuant to applicable laws of Vietnam, request a refund of tariff duties paid to the customs authority of the importing Party, provided that the request is accompanied by:

1. a written declaration, indicating that the good qualifies as originating at the time of importation;

2. the Certificate of Origin; and

3. any other documentation related to the importation of the good, as the importing Party may require.

Article 33. Minor discrepancies in C/O

1. The customs authority of the importing Party shall disregard minor errors, such as slight discrepancies or omissions, typing errors or overrunning the margin of the designated field, provided that these minor errors may not affect the authenticity of the C/O or the accuracy of the information included in the C/O or may not affect the origin of the goods covered by the C/O.

2. For multiple items declared under the same C/O, a problem with one of the items listed shall not affect or delay the granting of preferential tariff treatment of the remaining items listed in the C/O.

Article 34. Confidentiality

The competent authorities of Vietnam shall maintain, in accordance with the domestic law, the confidentiality of information provided pursuant to this Circular. The information shall not be disclosed without the consent of the person or competent authority providing the information.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 35. Issuance of C/O to goods exported before effective date of this Circular

C/O issuing authorities shall consider issuing C/O - Form VN-CU covering goods exported from Vietnam before the date of entry into force of this Circular for claiming preferential tariff treatment in accordance with provisions of the Agreement and internal laws and regulations of importing Party.

Article 36. Implementation organization and effect

1. Guidelines and interpretations relating to the implementation of the Rules of Origin, which have been agreed by the Parties alternately or by means of reports of meetings of the Sub-Committee on Rules of Origin and the Joint Committee under the framework of Vietnam – Cuba Trade Agreement shall be considered as the basis for implementation by C/O issuing authorities and customs authorities.

2. The contents in Clause 1 of this Article shall be notified to C/O issuing authorities and customs authorities through the contact points of the Sub-Committee on Rules of Origin and the Joint Committee for implementation of the Vietnam – Cuba Trade Agreement.

3. This Circular comes into force from May 25, 2020./.