CIRCULAR

GUIDING THE IMPLEMENTATION OF THE GOVERNMENT’S DECREE No. 24/2000/ND-CP OF JULY 31, 2000 DETAILING THE IMPLEMENTATION OF THE LAW ON FOREIGN INVESTMENT IN VIETNAM REGARDING IMPORT, EXPORT AND OTHER TRADING ACTIVITIES OF FOREIGN- INVESTED ENTERPRISES

Pursuant to the Government’s Decree No. 24/2000/ND-CP of July 31, 2000 detailing the implementation of the Law on Foreign Investment in Vietnam;
Pursuant to the Government Office’s Official Dispatch No. 5403/VPCP-QHQT of December 11, 2000 notifying the opinion of the Prime Minister on the issuance of a circular by the Ministry of Trade guiding Decree No. 24/2000/ND-CP of July 31, 2000;
After consulting with the concerned ministries and branches, the Ministry of Trade hereby guides import, export and other trading activities of foreign-invested enterprises as follows:

I. SUBJECTS AND SCOPE OF APPLICATION

1. Subjects of application

Joint venture enterprises, enterprises with 100% foreign-owned capital and business cooperation contract parties under the Law on Foreign Investment in Vietnam, hereinafter collectively referred to as foreign-invested enterprises.

2. Scope of application

Import, export and other trading activities of foreign-invested enterprises.

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II. EXPORT, IMPORT

1. Export

1.1. Foreign-invested enterprises may directly export, or entrust the export of, products produced by themselves under their investment licenses, and conduct entrusted export for other enterprises of goods of the same kinds they are permitted to produce under their investment licenses.

1.2. Foreign-invested enterprises may purchase goods items not produced by themselves for export processing or for export, except those on the list enclosed herewith. This list of goods may be adjusted according to the Government’s export and import management mechanism for each period.

1.3. Foreign-invested enterprises shall carry out export procedures at the customs offices and their export plans shall not be subject to approval by the Ministry of Trade or the bodies authorized by the Ministry of Trade.

- When exporting goods produced by themselves according to the provisions of their investment licenses or business licenses, foreign-invested enterprises shall have to produce only once (at the first time) copies of their investment licenses or business licenses to the customs offices for export procedure clearance.

- When exporting goods not produced by themselves, foreign-invested enterprises shall inscribe in customs declaration forms the words "goods purchased in Vietnam for export".

- When exporting goods on the list of exports subject to quotas or norms set under the Government’s export and import management mechanism, foreign-invested enterprises shall produce to the customs offices the quota allocation documents or export norms of the Ministry of Trade.

- When exporting goods on the list of goods subject to specialized management, foreign-invested enterprises must abide by the regulations of the specialized management ministries.

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2.1. Import for creation of fixed assets

2.1.1. Import of machinery, equipment, transport means and supplies to create fixed assets for formation of foreign-invested enterprises

Basing themselves on their investment licenses and economic and technical expositions, the enterprises shall work out plans on import of machinery, equipment, transport means and supplies and submit them to the Ministry of Trade or the bodies authorized by the Ministry of Trade for approval. Such a plan may be made for the whole period of the project’s capital construction or for separate years compatible with the construction and installation tempo. The import plans must conform to the economic and technical expositions in terms of the capital structure allocated for import, and the goods’ names, quantities, technical specifications as well as value.

Where an import plan fails to conform to the investment license and the economic and technical exposition, it must be approved by the investment- licensing body in the following cases:

- The import value of each item of machinery, equipment, transport means or supplies exceeds by more than 10% the value of such item, for those items with the investment capital allocated for import reaching USD 5,000,000.

- The import value of each item of machinery, equipment, transport means or supplies exceeds USD 500,000, for those items with the investment capital allocated for import exceeding USD 5,000,000.

- The capital structure allocated to each import item is not included in the economic and technical exposition.

- Machinery, equipment, transport means and supplies vary as compared to the economic and technical exposition, thus leading to changes in the production targets, technological process and/or production and business capacity.

2.1.2. Import of machinery, equipment, transport means and supplies for production expansion

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2.1.3. Import of machinery, equipment, transport means and supplies for technology replacement or renewal

Basing themselves on their production demands, the foreign-invested enterprises shall make plans on import of machinery, equipment, transport means and supplies for technology replacement or renewal and submit them to the Ministry of Trade or the bodies authorized by the Ministry of Trade for approval.

2.1.4. Import-requesting dossiers

- The foreign-invested enterprise’s written request for import (import for enterprise formation, import for production expansion, import for replacement, import for technology renewal);

- A list of goods to be imported (names, quantities, technical specifications, value);

- A list of machinery being currently in use, which need to be replaced, the time for which they have been used, the conditions of machinery and equipment (in case of import of machinery and equipment for replacement);

- A copy of the investment license or business license (in case of business cooperation contracts), the investment license adjusted for capital increase (in case of import of machinery and equipment for production expansion);

- The economic and technical exposition (or the economic and technical exposition for production expansion);

- The business cooperation contract (in case of business cooperation contracts).

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- Where the goods imported for capital construction with the investment capital already approved can neither be quantitatively determined nor specifically listed, the foreign-invested enterprises shall carry out import procedures with the customs offices for subsequent deductions into the approved value.

2.2. Import of goods for production and business

2.2.1. Basing themselves on the economic and technical expositions and the execution results of the previous year’s import plans, foreign-invested enterprises shall make plans on import of raw materials and auxiliary materials for production (for production projects) and on import of goods for service provision (for service provision projects) and submit them to the Ministry of Trade or the body authorized by the Ministry of Trade for approval. Such a plan shall include the list of raw materials imported for production of goods for export, the list of raw materials for production of goods for domestic consumption and the list of waste supplies (not constituting products) for production activities.

2.2.2. The import plans of foreign-invested enterprises exempt from import tax on raw materials for 5 years as prescribed in Clauses 5, 6, 7 and 8, Article 57 of Decree No. 24/2000/ND-CP of July 31, 2000, must include the following details:

- The address of the enterprise’s head office and production sites and the output of each production site;

- The export percentage prescribed in the investment license and the previous year’s actual export percentage (enclosed with the customs office’s certification of the previous year’s export value of products produced by the enterprise);

- The norm on the use of raw materials for production, types of imported raw materials according to the production process already registered in the economic and technical exposition or actually achieved in the previous year.

2.2.3. Foreign-invested enterprises shall carry out import procedures at the customs offices, without having to submit their import plans for approval in the following cases:

- Importing spare parts for their activities;

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3. Entrustment of import and conducting of entrusted import

3.1. Foreign-invested enterprises may entrust Vietnamese enterprises with suitable business functions to import goods in their approved import plans.

3.2. Foreign-invested enterprises shall not be allowed to conduct import entrusted by other enterprises in Vietnam.

4. Reports on the export and import execution

Quarterly, foreign-invested enterprises shall report to the bodies authorized by the Ministry of Trade on their export and import activities, including:

- The situation on the export of products produced and not produced by the enterprise;

- The situation on the import of machinery, equipment, transport means and supplies for capital construction; raw materials for production of goods for export or production of goods for domestic consumption.

- For enterprises with their investment licenses prescribing that 80% or more of their products are for export, which fail to achieve this export percentage, they shall have to report such to the investment-licensing bodies and the customs offices for retrospective payment of the import tax on the volumes of raw materials not used for production of exports according to the provisions of the Law on Export Tax and Import Tax.

- In special cases, foreign-invested enterprises shall report their export, import and other trading activities at the request of the Ministry of Trade.

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Foreign-invested enterprises must not conduct business by mode of temporary import for re-export and shall be only allowed to conduct temporary import for re-export or temporary export for re-import of goods in the following cases:

5.1. Temporary import for re-export of construction equipment for project execution

Basing themselves on the lists of construction machinery and equipment proposed by the contractors, foreign-invested enterprises shall make plans on temporary import for re-export of construction machinery and equipment and submit them to the Ministry of Trade or the bodies authorized by the Ministry of Trade for approval.

Foreign-invested enterprises shall have to re-export all temporarily-imported construction machinery, equipment, transport means and supplies after the foreign contractors have completed construction works in Vietnam under construction contracts signed with foreign-invested enterprises.

Foreign-invested enterprises must not lease, lend or sell temporarily imported construction equipment of contractors.

The purchase of construction equipment by contractors shall comply with the provisions at Point 5.1, Section V of this Circular.

5.2. Foreign-invested enterprises shall carry out procedures at the customs offices in the following cases:

- Temporarily exporting for re-importing machinery and equipment for repair;

- Temporarily exporting for re-importing goods imported at variance with import contracts;

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- The temporary export for re-import or temporary import for re-export of packings or materials not constituting products and of a nature of multiple goods rotation (such as yarn spikes, cable core, racks…) shall be prescribed in export or import contracts.

III. HIRE-PURCHASE AND RENTING OF MACHINERY AND EQUIPMENT

1. Financial hire-purchase of machinery and equipment for creation of fixed assets

1.1. Foreign-invested enterprises may financially hire-purchase machinery and equipment for investment under hire purchase contracts. The list, quantity and technical specifications of hire-purchased machinery and equipment and relevant terms set forth in the contracts must conform to the economic and technical expositions.

- The financial hire-purchase of machinery and equipment for creation of fixed assets of enterprises must be permitted by the investment-licensing bodies.

1.2. Foreign-invested enterprises may directly import machinery and equipment hire-purchased from abroad, or domestic financial leasing companies may import machinery and equipment for hire-purchase by foreign-invested enterprises as investment capital contribution.

1.3. The dossiers submitted for approval of machinery and equipment to be imported by mode of financial hire-purchase shall comprise:

- The enterprise’s written request, enclosed with the list, quantity, technical specifications and value of the machinery and equipment to be hire-purchased;

- The economic and technical exposition;

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- The contract for hire-purchase of machinery and equipment with the foreign or domestic financial leasing company.

2. Renting of foreign machinery and equipment in service of the enterprises’ activities

2.1. Foreign-invested enterprises shall be allowed to rent only machinery, equipment, molds and accompanying spare parts not yet included in the technological chain already registered in the economic and technical expositions for use in a given period for product finishing.

If rented machinery and equipment are used ones, they must not be on the list of goods banned from import according to the Government’s export and import management mechanism for each period and the regulations of the Ministry of Science, Technology and Environment.

2.2. Foreign-invested enterprises shall not be allowed to sell rented machinery and equipment and must re-export them when the renting period expires.

2.3. Foreign-invested enterprises must pay import tax on rented machinery and equipment; and perform, on behalf of the renter, the financial obligations as prescribed by law.

2.4. The dossiers for temporary import for export of rented equipment

- The enterprise’s written request clearly stating the use purpose of rented machinery and equipment; the duration for use of machinery and equipment in Vietnam; the list of rented machinery and equipment (names, quantity, technical specifications, value);

- The contract for renting of machinery and equipment signed with the foreign party.

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Enterprise shall conduct product-processing and re-processing activities for the purposes prescribed in their investment licenses.

1. Processing for foreign parties

- The processing activities shall comply with the regulations of the Ministry of Trade in Circular No. 18/1998/TT-BTM of August 28, 1998.

- If a processing contract includes the renting of machinery and equipment for performance of the processing contract, the enterprise must observe the provisions at Point 2, Section III above.

- Foreign-invested enterprises may order from abroad the processing phases that cannot be conducted in the country.

2. Domestic processing

- Foreign-invested enterprises may accept domestic processing orders.

- Foreign-invested enterprises may order the domestic processing of part of products or several processing phases that can not be ensured by their machinery and equipment capacity or technological chains.

V. SALE AND PURCHASE, PROCESSING BETWEEN EXPORT PROCESSING ENTERPRISES AND DOMESTIC ENTERPRISES

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1.1. Export processing enterprises must not sell imported goods on the Vietnamese market.

1.2. Export processing enterprises shall be entitled to sell on the domestic market products produced by themselves under the provisions of their investment licenses, including:

1.2.1. Raw materials and/or semi-finished products to other enterprises directly producing export goods.

1.2.2. Domestic goods with import demands, which are not on the list of goods banned from import and the list of imports requiring the Trade Ministry’s permits;

1.2.3. Discarded materials and defective products of commercial value.

1.3. The sale and purchase between export processing enterprises and the domestic market shall comply with the Trade Ministry’s Circular No. 23/1999/TT-BTM (particularly, Point a, Clause 1, Section III of Circular No. 23/1999/TT-BTM on home-made goods purchased from export processing enterprises shall be superseded by Point 1.2.2, Clause 1, Section IV of this Circular).

2. Processing between export-processing enterprises and domestic enterprises

2.1. Foreign-invested export processing enterprises may order from domestic enterprises the processing of part of their products or several processing phases that can not be ensured by their machinery and equipment capacity or technological chains.

2.2. Foreign-invested enterprises may order from export processing enterprises the processing of part of products or several processing phases that can not be ensured by their machinery and equipment capacity or technological chains.

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VI. ON-THE-SPOT EXPORT

1. Exporting products to foreign traders but delivering the products in Vietnam under the designation of foreign traders

1.2. If foreign-invested enterprises need to export goods produced by themselves under their investment licenses and domestic enterprises have demands to import such goods in Vietnam, the foreign-invested enterprises shall have to sign export contracts and the domestic enterprises shall have to sign import contracts with foreign traders; the payment shall be made via banks and in a freely convertible foreign currency.

1.3. Domestic enterprises that import on the spot products of foreign-invested enterprises must meet the following conditions:

- Where they are foreign-invested enterprises, these products must be used as raw materials by the enterprises for further production and included in the approved annual import plans.

- Where they are Vietnamese enterprises, these products must be used as raw materials or semi-finished products by the enterprises for further production and the tax thereon must be paid as prescribed for imported goods.

- If domestic enterprises receive products for the performance of processing contracts with foreign traders, the processing shall comply with the Government’s Decree No. 57/1998/ND-CP of July 30, 1998 and the Trade Ministry’s Circular No. 18/1998/TT-BTM of August 28, 1998.

2. Foreign-invested enterprises are sub-contractors of foreign contractors that perform construction and installation work in Vietnam

The on-the-spot export of products by foreign-invested enterprises to foreign contractors must be conducted under sale and purchase contracts or sub-contracting contracts for supply of products and installation of part of the work for principal contractors; the payment shall be made via banks in a foreign currency.

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1. According to the provisions of their investment licenses, foreign-invested enterprises may directly or through agents sell products on the Vietnamese market without any restrictions on the sale places and without having to submit their product sale plans for approval.

2. Where the investment license sets forth a certain percentage of products for export, within the first three months of the year, foreign-invested enterprises shall have to report to the investment-licensing bodies, the customs offices, the bodies authorized by the Ministry of Trade and the Ministry of Trade on the previous year’s export percentage and product sale for monitoring their observance of the provisions of the investment licenses as well as their performance of tax and other financial obligations.

3. Agents for sale of home-made goods

Foreign-invested enterprises may act as agents to sell products of the same kinds produced by other enterprises in Vietnam. The goods sale and purchase agency shall comply with the Government’s Decree No. 25/CP of April 25, 1996 and the Trade Ministry’s Circular No. 10/TT-BTM of June 13, 1996 on home-made goods sale and purchase agency.

4. Foreign-invested enterprises must not act as sale agents for foreign countries or agents to sell imported goods on the Vietnamese market.

VIII. LIQUIDATION OF MACHINERY, EQUIPMENT, TRANSPORT MEANS, SUPPLIES AND RAW MATERIALS

1. Liquidation of redundant machinery, equipment and supplies after the capital construction for enterprise formation is completed

1.1. Foreign-invested enterprises may liquidate redundant machinery, equipment and supplies after completing the capital construction for enterprise formation

1.2. Liquidation dossier to be submitted to the Ministry of Trade for approval shall comprise:

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- The enterprise’s written request enclosed with the list of redundant machinery, equipment and supplies and their value (clearly stating the serial number of the official dispatch permitting the import thereof and the serial number of the customs declaration forms upon the import).

2. Liquidation of assets upon termination of the project’s operation

2.1. In case of liquidation of machinery, equipment, transport means and supplies in Vietnam

The liquidation dossier to be submitted to the Ministry of Trade for approval shall comprise:

- The Liquidation Board’s written proposal enclosed with the list of machinery, equipment, transport means and supplies to be liquidated in Vietnam (clearly stating the serial numbers of the import permit and the customs declaration form, the original import value and the residual value);

- The investment-licensing body’s decision on dissolution of the foreign-invested enterprise;

- The Managing Board’s or the investment-licensing body’s decision on establishment of the Liquidation Board;

- The liquidation plan approved by the Managing Board or by the foreign investor (for enterprises with 100% foreign-owned capital).

2.2. In case of re-export of machinery, equipment and supplies belonging to the foreign parties’s assets or of the foreign investors (for enterprises with 100% foreign-owned capital)

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- The Liquidation Board’s written proposal enclosed with the list of machinery, equipment, and supplies to be re-exported (clearly stating the serial number of the import permit, the original import value and the residual value) compatible with the foreign party’s divided capital proportion in the liquidation plan;

- The investment-licensing body’s decision on dissolution of the foreign-invested enterprise;

- The Managing Board’s or the investment-licensing body’s decision on establishment of the Liquidation Board;

- The liquidation plan approved by the Managing Board or by the foreign investor (for enterprises with 100% foreign-owned capital).

- The tax office’s and the customs office’s written certifications that the enterprise has fulfilled its financial obligations.

3. Liquidation of machinery, equipment and transport means when enterprises are still operating

3.1. Liquidation of machinery, equipment and transport means for technology replacement and renewal

Foreign-invested enterprises shall only be allowed to liquidate when machinery, equipment and transport means have passed their depreciation duration or have been out of order, or liquidate them for replacement with new machinery, equipment and transport means of more advanced technology.

The liquidation dossier shall comprise:

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- Explanations on the reasons for liquidation, clearly stating the time of using the to be-liquidated of machinery, equipment and transport means.

3.2. The liquidation of machinery, equipment and transport means for production downscaling or change of operation purposes

The plans on liquidation of machinery, equipment and transport means for change of operation purposes or production downscaling must be approved by the enterprises’ Managing Boards or the foreign investors (for enterprises with 100% foreign-owned capital). The enterprises must obtain decisions issued by the investment-licensing bodies permitting the production downscaling or the change of operation purposes.

The liquidation dossier shall comprise:

- The enterprise’s written request enclosed with the list of machinery, equipment and transport means to be liquidated and their quantities (clearly stating the serial number of the customs declaration form, a copy of the customs declaration form and a copy of the document permitting the import);

- The investment-licensing body’s decision permitting the enterprise to downscale its production or change its operation purposes;

- The enterprise’s Managing Board’s minutes of the approval of the enterprise’s plan on the production downscaling or change of operation purposes, including the list of machinery, equipment and transport means to be liquidated.

4. Liquidation of imported raw materials and supplies which are in stock or of inferior quality

Foreign-invested enterprises must not trade in raw materials and supplies already imported into Vietnam in service of production and may sell in Vietnam only raw materials and supplies which are redundant, in stock or qualitatively inferior or when changing to produce other products.

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- The enterprise’ written request enclosed with the list of raw materials and supplies which are redundant or in stock, their quantities, value, the serial numbers of customs declaration forms and the time of their import;

- The goods quality control organization’s quality control record, for raw materials and supplies which are of inferior quality or fail to meet the technical criteria for production.

5. Liquidation of machinery, equipment and transport means temporarily imported for construction by contractors in Vietnam

5.1. Foreign construction contractors shall be only allowed to sell construction equipment on the Vietnamese market under the following conditions:

- Before selling temporarily imported machinery, equipment and transport means on the Vietnamese market, foreign-invested enterprises must complete the procedures for their re-export to the contractors and abide by the regulations of the Ministry of Science, Technology and Environment.

- Vietnamese traders must sign contracts for import of the above-said machinery, equipment and transport means with the foreign contractors according to the Government’s export and import management regulations.

If the importer is a foreign-invested enterprise, apart from the above-said import provisions which must be observed, the imported machinery, equipment and transport means must be compatible with the economic and technical exposition in terms of their quantity, specifications, quality and included in the already approved import plan for creation of fixed assets.

- The import of used machinery and equipment from the foreign construction contractors must comply with the Government’s export and import management regulations.

6. Destruction of unusably damaged machinery, equipment, transport means, supplies and raw materials

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IX. RESPONSIBILITIES OF THE MINISTRY OF TRADE AND THE BODIES AUTHORIZED BY THE MINISTRY OF TRADE

1. The management responsibility of the Ministry of Trade

1.1. The Ministry of Trade shall have to guide and supervise the bodies authorized by itself to exercise the management of export, import and other trading activities of foreign-invested enterprises.

1.2. To approve plans on import and temporary import for re-export and certify tax exemption for machinery, equipment, transport means and supplies for oil and gas activities of investment projects on direct exploration and exploitation of oil and gas, projects executed under a single investment license by various independent cost-accounting establishments in different provinces according to the Government’s regulations in Official Dispatch No. 123/CP-QHQT of February 6, 1999.

1.3. To certify import tax exemption for raw materials in service of production under the projects exempt from import tax on raw materials for the first 5 years as prescribed in Clauses 5, 6, 7 and 8, Article 57 of the Government’s Decree No. 24/2000/ND-CP of July 31, 2000.

1.4. To permit the liquidation of machinery, equipment, transport means, supplies and raw materials as prescribed in Clause 9, Article 57 of the Government’s Decree No. 24/2000/ND-CP of July 31, 2000.

1.5. To approve the plans on import of goods on the list of imports that require the Trade Ministry’s permits.

The timelimit for approval of the import plans, certification of tax exemption for raw materials and permission of liquidation mentioned above shall not exceed 10 days after the receipt of complete and valid dossiers.

2. Responsibilities of the bodies authorized by the Ministry of Trade

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2.2. To approve plans on temporary import of machinery, equipment, transport means rented from abroad for activities.

2.3. To approve plans on import of supplies and raw materials for production and business activities of enterprises according to their investment licenses.

The timelimit for approval of the above-said import plans shall not exceed 15 days after the receipt of complete and valid dossiers.

2.4. Quarterly, the provincial/municipal Trade Services and the Industrial Parks Management Boards shall report to the Ministry of Trade on the implementation of export, import and other trading activities of foreign-invested enterprises in localities under their respective management.

X. IMPLEMENTATION PROVISIONS

1. This Circular takes effect 15 days after its signing.

2. The following documents are now annulled:

- The Trade Minister’s Decision No. 0321/1998/QD-BTM of March 14, 1998 detailing the implementation of the Government’s Decree No. 12/CP of February 18, 1997 and Decree No. 10/1998/ND-CP of January 23, 1998 regarding the import, export and sale of products in Vietnam and the processing by foreign-invested enterprises and business cooperation parties to business cooperation contracts.

- Joint Circular No. 23/1998/TTLT-BTM-TCHQ of December 31, 1998 of the Ministry of Trade and the General Department of Customs on resolving a number of import procedures for foreign-invested enterprises.

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- The Trade Minister’s Decision No. 1022/1999/QD-BTM issuing the list of goods not to be purchased by foreign-invested enterprises in Vietnam for export.

FOR THE MINISTER OF TRADE
VICE MINISTER




Mai Van Dau

LIST

OF GOODS NOT TO BE PURCHASED BY FOREIGN-INVESTED ENTERPRISES FOR EXPORT

(Issued together with Circular No. 22/2000/QD-BTM of December 15, 2000)

I. EXPORTS

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2. Antiques.

3. Narcotics.

4. Noxious chemicals.

5. Log, sawn and peeled timber from domestic natural forests; firewood, charcoal from timber or firewood; products and semi-finished products from wood from domestic natural forests, banned from export under the Prime Minister’s Decision No. 65/1998/QD-TTg of March 24, 1998 and the Government’s documents governing this Decision (Decision No. 136/1998/QD-TTg of July 31, 1999; Directive No. 19/1999/CT-TTg of July 16, 1999, Document No. 743/CP-NN of July 19, 1999 and Document No. 340/CP-NN of April 7, 1999).

6. Wild animals and rare and special natural animals and plants under the guidance of the Ministry of Agriculture and Rural Development.

II. QUOTA-REGULATED EXPORTS

1. Rice.

2. Textiles and garments to be exported into the EU countries, Norway, Canada and Turkey.

III. LIST OF GOODS NOT TO BE PURCHASED BY FOREIGN-INVESTED ENTERPRISES FOR EXPORT

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2. Forest animals for export.

3. Forest plants used as strains.

4. Gems, precious metals, natural pearls.

5. Wood products (except handicraft and fine art articles, goods made of planted forest timber, goods made of imported timber, goods made from artificial plywood according to the Prime Minister’s Decision No. 136/1998/QD-TTg of July 31, 1998).

6. Minerals.

Note: Where foreign-invested enterprises are granted investment licenses or business licenses to produce the above-said goods items, the export thereof shall comply with such investment licenses and relevant legal documents.