MINISTRY OF INDUSTRY AND TRADE | SOCIALIST REPUBLIC OF VIETNAM |
No.: 19/2019/TT-BCT | Hanoi, September 30, 2019 |
CIRCULAR
PRESCRIBING SPECIAL SAFEGUARD MEASURES FOR IMPLEMENTATION OF COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR TRANS-PACIFIC PARTNERSHIP (CPTPP)
Pursuant to the Law on foreign trade management dated June 12, 2017;
Pursuant to the Resolution No. 72/2018/QH14 dated November 12, 2018 of the National Assembly on ratification of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and relevant documents;
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. 10/2018/ND-CP dated January 15, 2018 on guidelines for the Law on foreign trade management regarding trade remedies;
At the request of the Director of the Trade Remedies Authority of Vietnam;
The Minister of Industry and Trade promulgates a Circular prescribing special safeguard measures for implementation of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Circular introduces regulations on the special safeguard measures for implementation of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), including:
1. Safeguard measures to be taken during the transition period.
2. Emergency actions against textile and apparel goods.
Article 2. Regulated entities
This Circular applies to:
1. Vietnamese regulatory authorities that have jurisdiction to inspect, apply and handle special safeguard measures for implementation of the CPTPP Agreement.
2. Vietnamese traders, traders of Parties of the CPTPP Agreement, other domestic and foreign agencies, organizations and individuals related to the investigation, application and handling of special safeguard measures for implementation of the CPTPP Agreement.
Article 3. Interpretation of terms
For the purpose of this Circular, the terms below are construed as follows:
1. “Agreement” means the Comprehensive and Progressive Agreement for Trans-Pacific Partnership .
2. “Party” means any State or territory implementing the Agreement.
3. “like good” means a good that is identical in all respects to the good subject to investigation. In the absence of such a good, the like good is another good that has characteristics closely resembling those of the good subject to investigation.
4. “directly competitive good” means a good that is accepted by buyers as a substitute for the good subject to the safeguard measures because of its price advantage and uses.
5. “transition period” means, in relation to a particular good, the 03-year period beginning on the date of entry into force of the Agreement. Where the tariff elimination for the good occurs over a longer period of time, the transition period shall be the period of the staged tariff elimination for that good.
6. “transitional safeguard measure” means a measure described in Article 99 of the Law on foreign trade management and Article 6.3 Chapter 6 of the Agreement.
7. “transition period for textile and apparel goods” means the period beginning on the date of entry into force of the Agreement until 05 years after the date on which Vietnam eliminates duties on textile and apparel goods for the exporting Party pursuant to the Agreement.
8. “emergency action against textile and apparel goods” means an action described in Article 99 of the Law on foreign trade management and Article 4.3 Chapter 4 of the Agreement.
9. “domestic industry” means the producers as a whole of the like or directly competitive good operating within the territory of Vietnam or those producers whose collective production of the like or directly competitive good constitutes a major proportion of the total domestic production of that good.
10. “date of entry into force of the Agreement” is January 14, 2019.
Article 4. Interested parties in investigation and application of transitional safeguard measures and emergency actions against textile and apparel goods
1. Interested parties in the case of investigation and application of transitional safeguard measures and emergency actions against textile and apparel goods include:
a) the producer or exporter of a Party whose goods are imported into the territory of Vietnam and subject to the investigation (;
b) the importer of goods subject to investigation;
c) the trade or business association a majority of the members of which are producers or exporters of goods subject to investigation;
d) the government and authorities of the exporting Party of goods subject to investigation;
dd) the applicant for imposition of transitional safeguard measures or emergency actions against textile and apparel goods;
e) the producer of the domestic like or directly competitive goods;
g) the trade or business association a majority of the members of which produce the domestic like or directly competitive goods;
h) such other person or organization that has legitimate rights and interests related to or useful for the investigation or representative consumer organizations.
2. Any organization or individual desiring to become an interested party in the investigation shall register with and must be approved by the investigating authority in accordance with regulations of the Law on foreign trade management regarding registration procedures.
3. An interested party in the investigation is entitled to access information and documents provided for the investigating authority by other interested parties in accordance with Clause 2 Article 75 of the Law on foreign trade management and Article 11 of the Government’s Decree No. 10/2018/ND-CP dated January 15, 2018.
Chapter II
TRANSITIONAL SAFEGUARD MEASURES
Article 5. Rules for imposition of a transitional safeguard measure
1. A transitional safeguard measure shall not be applied on the same good at the same time with one of the following measures:
a) a safeguard measure imposed on goods imported into Vietnam set out in the Law on foreign trade management;
b) an emergency action against textile and apparel goods prescribed herein.
2. A transitional safeguard measure shall not be maintained beyond the expiration of the transition period.
3. A transitional safeguard measure shall not be applied more than once on the same good.
4. A transitional safeguard measure shall not be imposed on any goods imported under a tariff quota established under the Agreement.
5. Neither tariff rate quotas nor import quotas shall be a permissible form of transactional safeguard measure.
6. The investigation and imposition of a transitional safeguard measure must comply with regulations of the Law on foreign trade management, Decree No. 10/2018/ND-CP and provisions in Article 6, Article 7 and Article 8 hereof.
Article 6. Application for imposition of a transitional safeguard measure
1. An application for imposition of the transitional safeguard measure includes the application form for imposition of the transitional safeguard measure and relevant documents specified in Article 47 of Decree No. 10/2018/ND-CP.
2. The application form for imposition of the transitional safeguard measure specified in Clause 2 Article 47 of Decree No. 10/2018/ND-CP must also include the following information:
a) Description of the imported good as prescribed in Point d Clause 2 Article 47 of Decree No. 10/2018/ND-CP that is the information relating to the good imported from one or more of the Parties and subject to the investigation upon the request for imposition of transitional safeguard measure. Information relating to the HS code and import duty must be provided according to the special preferential import/export tariff schedules for implementation of the Agreement.
b) Information relating to quantities and values of the imported good subject to investigation as prescribed in Point e Clause 2 Article 47 of Decree No. 10/2018/ND-CP within the 03-year period before submitting the application, including at least 06 months after the Agreement comes into force;
c) Information relating to quantities and values of the like or directly competitive good produced by the domestic industry as prescribed in Point g Clause 2 Article 47 of Decree No. 10/2018/ND-CP within the 03-year period before submitting the application, including at least 06 months after the Agreement comes into force. If the operating duration of the domestic industry is less than 03 years, the submitted data shall include the entire operating duration of the domestic industry by the time of submission of the application;
d) Information relating to the transition period for the imported good subject to the investigation upon the request for imposition of transitional safeguard measure.
Article 7. Imposition of transitional safeguard measure in case no application is submitted
1. In case no application is submitted but there are clear signs that an originating good of one or more Parties is being imported into Vietnam in increased quantities during the transition period as a result of the reduction or elimination of a customs duty under the Agreement as to cause or threaten to cause serious injury to the domestic industry, the investigating authority may prepare and submit an application to the Minister of Industry and Trade for making investigation decision.
2. An application submitted by the investigating authority must comply with regulations of Article 6 hereof, except Point a, Point b and Point c Clause 2 Article 47 of Decree No. 10/2018/ND-CP.
3. Relevant organizations and individuals shall cooperate and provide necessary information at the request of the Ministry of Industry and Trade.
Article 8. Imposition of a transitional safeguard measure
1. The Minister of Industry and Trade shall decide the imposition of a transitional safeguard measure when the report given by the investigating authority contains the following findings:
a) There is an increase in the quantities of the subject good which is imported from one or more Parties in increased quantities, in absolute terms or relative to domestic production, as a result of the reduction or elimination of a customs duty pursuant to the Agreement.
If there is an increase in the quantities of the subject good imported from two or more Parties in increased quantities, the imports from such each Party into which the investigation is made have increased, in absolute terms or relative to domestic production, since the date of entry into force of the Agreement for those Parties;
b) The domestic industry suffers serious injury or threat of serious injury;
c) The serious injury or threat of serious injury incurred by the domestic industry is caused by the increased imports as set out in Point a of this Clause.
2. The transitional safeguard measures to be imposed include:
a) Suspension of the further reduction of any rate of customs duty provided for under the Agreement on the good subject to investigation;
b) Increase in the rate of customs duty on the good to a level not to exceed the lesser of the most-favoured-nation applied rate of customs duty in effect at the time the measure is applied and the most-favoured-nation applied rate of customs duty in effect on the day immediately preceding the date of entry into force of the Agreement.
3. A transitional safeguard measure shall be maintained for a period not exceeding 02 years. This period may be extended by up to 01 year if the investigating authority determines that the transitional safeguard measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment for the domestic industry.
4. Where the expected duration of a transitional safeguard measure is over 01 year, it must be progressively liberalized at regular intervals during the period of application.
5. On the termination of a transitional safeguard measure, the rate of customs duty shall be imposed on the relevant good according to the special preferential import tariffs for implementation of the Agreement in effect at the time of termination of such transitional safeguard measure.
Chapter III
EMERGENCY ACTIONS AGAINST TEXTILE AND APPAREL GOODS
Article 9. Rules for taking emergency actions against textile and apparel goods
1. No emergency action shall be taken against a textile or apparel good that is, at the same time, subject to one of the following measures:
a) a safeguard measure imposed on goods imported into Vietnam set out in the Law on foreign trade management;
b) a transitional safeguard measure provided for under this Circular.
2. No emergency action shall be taken against a textile or apparel good beyond the expiration of the transition period for such textile or apparel good.
3. No emergency action shall be taken against any particular textile or apparel good more than once.
4. The investigation and imposition of an emergency action against textile and apparel goods must comply with regulations of the Law on foreign trade management, Decree No. 10/2018/ND-CP and provisions in Article 10, Article 11 and Article 12 hereof.
Article 10. Application for taking of emergency actions against textile and apparel goods
1. An application for taking of an emergency action against a textile or apparel good includes the application form and relevant documents specified in Article 47 of Decree No. 10/2018/ND-CP.
2. The application form for taking of an emergency action against a textile or apparel good prepared according to Clause 2 Article 47 of Decree No. 10/2018/ND-CP must also include the following information:
a) Description of the imported goods as specified in Point d Clause 2 Article 47 of the Decree No. 10/2018/ND-CP, including information relating to the textile or apparel good subject to the investigation such as its scientific name, commercial name, common name, composition, physical and chemical properties, main uses, production process, applicable international and Vietnamese standards and/or regulations, HS code and the import duty rate in effect as specified in the preferential import/export tariff schedules for implementation of the Agreement;
b) Information relating to quantities and values of the imported textile or apparel good as prescribed in Point a of this Clause within the 03-year period before submitting the application, including at least 03 months after the Agreement comes into force;
c) Information relating to quantities and values of the like or directly competitive good produced by the domestic industry as prescribed in Point g Clause 2 Article 47 of Decree No. 10/2018/ND-CP within the 03-year period before submitting the application, including at least 03 months after the Agreement comes into force.
d) Information relating to the transition period for the imported textile or apparel good subject to the investigation.
Article 11. Taking an emergency action against textile and apparel goods in case no application is submitted
1. In case no application is submitted but there are clear signs that a textile or apparel good is being imported into Vietnam in increased quantities during the transition period as a result of the reduction or elimination of a customs duty under the Agreement as to cause or threaten to cause serious injury to the domestic industry, the investigating authority may prepare and submit an application to the Minister of Industry and Trade for making investigation decision.
2. An application for taking emergency action submitted by the investigating authority must comply with regulations of Article 10 hereof, except Point a and Point b Clause 2 Article 47 of Decree No. 10/2018/ND-CP.
3. Relevant organizations and individuals shall cooperate and provide necessary information at the request of the Ministry of Industry and Trade.
Article 12. Taking an emergency action against textile and apparel goods
1. The Minister of Industry and Trade shall decide to take an emergency action against a textile or apparel good when the report given by the investigating authority contains the following findings:
a) There is an increase in the quantities of the subject textile or apparel good which is imported from one or more Parties in increased quantities, in absolute terms or relative to domestic production, as a result of the reduction or elimination of a customs duty under the Agreement.
b) The domestic industry suffers serious injury or threat of serious injury;
c) The serious injury or threat of serious injury incurred by the domestic industry is caused by the increased imports as set out in Point a of this Clause.
2. After consideration of relevant variables as output, productivity, utilization of capacity, inventories, market share, exports, employment, wages, domestic prices, profits and investment, the investigating authority shall determine the serious injury or threat of serious injury incurred by the domestic industry as prescribed in Point b Clause 1 of this Article. Changes in technology or consumer preference shall not be considered.
3. An emergency action may be taken against a textile or apparel good in the form of increasing the rate of customs duty on the good to a level not to exceed the lesser of the most-favoured-nation applied rate of customs duty in effect at the time the measure is applied and the most-favoured-nation applied rate of customs duty in effect on the day immediately preceding the date of entry into force of the Agreement.
4. An emergency action shall be maintained for a period not exceeding 02 years and may be extended for an additional period of up to 02 years.
5. On termination of the emergency action, the rate of customs duty shall be imposed on the relevant textile or apparel good according to the special preferential import tariffs for implementation of the Agreement in effect at the time of termination of such emergency action.
Chapter IV
IMPLEMENTATION
Article 13. Effect
1. This Circular comes into force after 45 days from the day on which it is signed.
2. Investigating authorities shall consider receiving applications for imposition of transitional safeguard measures or emergency actions against textile and apparel goods according to the effect of the Agreement.
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