PHỤ LỤC II Quyết định số 18/2019/QĐ-TTg: (Kèm theo Quyết định số 18/2019/QĐ-TTg ngày 19 tháng 04 năm 2019 của Thủ tướng Chính phủ)

DECISION

IMPORT OF USED MACHINERY, EQUIPMENT AND TECHNOLOGICAL LINES

Pursuant to the Law on government organization dated June 19, 2015;

Pursuant to the Law on foreign trade management dated June 12, 2017;

Pursuant to the Government’s Decree No. 69/2018/ND-CP dated May 15, 2018 elaborating some articles of the Law on foreign trade management;

At the request of the Minister of Science and Technology;

The Prime Minister promulgates a Decision on import of used machinery, equipment and technological lines.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Decision provides for criteria, documentation, procedures for import and inspection of used machinery, equipment and technological lines in HS Chapter 84 and Chapter 85 on the List of exports and imports of Vietnam meant to be imported and used for manufacture in Vietnam and that are not on the lists of goods banned from import compiled by the government, the Prime Minister, Ministries, and ministerial agencies in accordance with regulations laid down in the Government's Decree No. 69/2018/ND-CP dated May 15, 2018.

2. This Decision does not apply to import of used machinery, equipment and technological lines that are:

a) transited or transshipped;

b) under merchanting;

c) temporarily imported for re-export;

d) temporarily imported for re-export in other forms prescribed in Article 15 and temporarily exported for re-import as prescribed in Article 17 of the Government's Decree No. 69/2018/ND-CP dated May 15, 2018 (except for those temporarily imported to serve execution of processing contracts; those imported for manufacturing or execution of construction projects); 

dd) imported to execute maintenance/repair contracts with foreign parties;

e) traded among enterprises in an export-processing zone or free trade zone; liquidated assets sold by enterprises in an export-processing zone to other domestic enterprises;

g) transferred from foreign parties upon the expiration of processing contracts or lease-purchase agreements; repurposed for domestic sale upon the expiration of license for temporary import for execution of construction contracts or in the lease form for execution of processing contracts with foreign parties; transferred among enterprises executing processing contracts for foreign parties;

h) meant to serve research and development and cannot be domestically manufactured; meant to serve national defense and security objectives at the request of relevant Ministries;

i) machinery and equipment on the List of potentially unsafe goods (List of Group 2 goods) issued by relevant Ministries according to the Law on quality of products and goods;

k) machinery and equipment in specialized sectors provided for in legislative documents of ministries or ministerial agencies.

Article 2. Regulated entities

This Decision applies to:

1. Organizations and enterprises (hereinafter referred to as “enterprises”) that import used machinery, equipment and technological lines.

2. Inspection bodies that inspect used machinery, equipment and technological lines as prescribed in this Decision.

3. Regulatory authorities relevant to the import of used machinery, equipment and technological lines as prescribed in Article 1 of this Decision.

Article 3. Definitions

For the purpose of this Decision, these terms are construed as follows:

1. “machinery or equipment” means a complete structure comprised of parts, groups of parts, and components that are interconnected to operate to serve the intended purposes.

2. “technological line” means a system of machinery, equipment, tools and/or devices that are installed or interconnected on a fixed site according to a technological process or diagram to ensure synchronous operation serving manufacturing.

3. “used machinery, equipment and technological lines” are machinery, equipment and technological lines that have been assembled and put into operation after they are manufactured.

4. “age” means the period of time expressed as years from the year of manufacturing to the year of import of the used machinery or equipment. Year of import is the year in which the goods arrive at a Vietnam’s port.

Article 4. Rules for management of import of used machinery, equipment and technological lines

1. Import of used machinery, equipment and technological lines must comply with regulations of the Law on goods import.

2. It is prohibited to import any used machinery, equipment and technological lines that:

a) have been discarded as announced by exporting countries because of their obsolescence, low quality of causing environmental pollution; or

b) fail to satisfy safety, energy saving, and environmental protection requirements prescribed by applicable law.

3. Only the importation of used machinery, equipment and technological lines meant to directly serve the manufacturing of enterprises in Vietnam is licensed.

Chapter II

IMPORT CRITERIA FOR USED MACHINERY, EQUIPMENT AND TECHNOLOGICAL LINES

Article 5. Import criteria for used technological lines

A used technological line may be imported if it satisfies the following criteria:

1. It is manufactured in accordance with:

a) National Technical Regulations (QCVN) on safety, energy saving, and environmental protection;

b) In case of unavailability of National Technical Regulations (QCVN) for a technological line to be imported, it must be manufactured in conformity with technical indicators of Vietnam’s Standards (TCVN) or Standards of G7 countries or Korea with regard to safety, energy saving, and environmental protection.

2. Remaining capacity (which is the number of products that the technological line produce in a given time period) or performance must achieve at least 85% of its design capacity or performance.

3. The amount of raw materials or energy consumed by the technological line shall not exceed 15% of its design consumption level.

4. Technologies of the technological line to be imported must not be on the List of technologies prohibited or restricted from transferring promulgated under the Government’s Decree No. 76/2018/ND-CP dated May 15, 2018.

5. A technology comprised in the technological line to be imported is being applied by at least 03 manufacturers of member countries of Organization for Economic Cooperation and Development (OECD).

Article 6. Import criteria for used machinery and equipment

A piece of used machinery or equipment may be imported if it satisfies the following criteria:

1. Its age does not exceed 10 years. Ages of machinery and equipment in certain specific fields are provided for in the Appendix I enclosed herewith.

2. It is manufactured in accordance with:

a) National Technical Regulations (QCVN) on safety, energy saving, and environmental protection;

b) In case of unavailability of National Technical Regulations (QCVN) for the type of machinery or equipment to be imported, it must be manufactured in conformity with technical indicators of Vietnam’s Standards (TCVN) or Standards of G7 countries or Korea with regard to safety, energy saving, and environmental protection.

Chapter III

DOCUMENTATION AND PROCEDURES FOR IMPORTING USED MACHINERY, EQUIPMENT AND TECHNOLOGICAL LINES

Article 7. Documentation and procedures for importing used technological lines

1. Import documents:

Apart from the import documents prescribed by the Law on customs, the importer must submit additional documents, including:

a) The copy of the Certificate of enterprise registration bearing the importer’s seal. In case of entrusted import, the import entrustment agreement must be submitted;

b) The inspection certificate issued by a designated inspection body that meet the requirements laid down in Article 11 hereof. Contents of such inspection certificate must conform to Points a, b, c, d, dd Clause 1 Article 10 hereof.

2. Import procedures:

a) The importer shall submit a set of import documents and additional documents mentioned in Clause 1 of this Article to the customs authority where the customs declaration is registered;

b) The customs authority shall only initiate customs clearance procedures as regulated if import documents and additional documents prescribed in Clause 1 of this Article are sufficient and valid, and the inspection certificate shows that the used technological line satisfies requirements in Article 5 hereof.

Article 8. Documentation and procedures for importing used machinery and equipment

1. Import documents:

Apart from the import documents prescribed by the Law on customs, the importer must submit additional documents, including:

a) The copy of the Certificate of enterprise registration bearing the importer’s seal. In case of entrusted import, the import entrustment agreement must be submitted;

b) The original of manufacturer’s certification that the manufacturing year and manufacturing standards applied to the used machinery or equipment are conformable with Article 6 hereof if the machinery or equipment to be imported have been manufactured in any G7 countries or Korea. That certification must be consularly legalized and accompanied by its Vietnamese translation;

c) The inspection certificate issued by a designated inspection body that meet the requirements laid down in Article 11 hereof if the machinery or equipment to be imported has been manufactured in any G7 countries or Korea without the manufacturer's certification or the machinery or equipment to be imported has been manufactured in a country other than G7 countries and Korea. Contents of such inspection certificate must conform to Points a, b, c, d, e Clause 1 Article 10 hereof.

2. Import procedures:

a) The importer shall submit a set of import documents and additional documents mentioned in Clause 1 of this Article to the customs authority where the customs declaration is registered;

b) The customs authority shall only initiate customs clearance procedures as regulated if received import documents and additional documents prescribed in Clause 1 of this Article are sufficient and valid. If the inspection certificate is submitted according to Point c Clause 1 of this Article, it must include the conclusion that the used machinery or equipment satisfies requirements in Article 6 hereof.

3. Putting goods into storage:

a) At the time of submitting import documents as prescribed in Clause 1 of this Article, if an importer of the used machinery or equipment fails to provide the manufacturer’s certification as prescribed in Point b Clause 1 of this Article and the inspection certificate as prescribed in Point c Clause 1 of this Article, the importer may put goods into storage in accordance with the Law on customs after submitting the application for inspection bearing the certification by the inspection body as prescribed in this Decision to the customs authority;

b) Within 30 working days from the day on which machinery or equipment is put into storage, the importer must submit the inspection certificate to the customs authority. The customs authority shall only initiate customs clearance procedures as regulated if import documents and additional documents prescribed in Clause 1 of this Article are sufficient and valid, and the inspection certificate includes the conclusion that the used machinery or equipment satisfies requirements in Article 6 hereof.

If the inspection result shows that the machinery or equipment fails to meet requirements in Article 6 hereof, the importer shall incur penalties for administrative violations against the Law on customs.

Article 9. Other cases of importing used machinery and equipment

1. If an enterprise wishes to import used machinery or equipment whose age exceeds the age limit prescribed in Clause 1 Article 6 hereof but remaining capacity (which is the number of products that the machinery or equipment produces in a given time period) or performance achieves 85% or above of its design capacity or performance, and amount of raw materials or energy consumed by that machinery or equipment does not exceed 15% of its design consumption level to serve its manufacturing in Vietnam, it shall submit an application for import license, including all required documents, directly or by post or through the online public service portal to the Ministry of Science and Technology for consideration and processing.

2. The application includes:

a) The application form for approval for import of used machinery or equipment using the form provided in the Appendix II enclosed herewith, including explanations about the necessity of import of used machinery or equipment to maintain manufacturing and business operations, the plan for using machinery or equipment and the necessity of used machinery or equipment to be imported in the technological line;

b) The copy of the Certificate of enterprise registration bearing the enterprise’s seal;

c) The inspection certificate issued by a designated inspection body as regulated in Article 11 hereof. Contents of such inspection certificate must conform to Points a, b, c, d, g Clause 1 Article 10 hereof;

3. Application processing procedures:

a) In case the received application is insufficient or invalid:

- The received application is immediately returned to the enterprise if it is directly submitted at the single-window section of the Ministry of Science and Technology;

- If the application is submitted through the portal of the Ministry of Science and Technology, within 08 working hours from the receipt of the application, Ministry of Science and Technology is required to request the enterprise to complete its application;

- If the application is submitted by post, within 02 working days from the receipt of the application, the Ministry of Science and Technology shall request the enterprise in writing to complete its application.

b) Within 02 working days from the receipt of the sufficient and valid application, the Ministry of Science and Technology shall send written request, accompanied by photocopies of application documents, to relevant ministries and ministerial agencies for getting their opinions. The Ministry of Science and Technology may consult specialists about used machinery or equipment to be imported if it is deemed necessary;

c) Within 10 working days from the receipt of the written request from the Ministry of Science and Technology, the requested ministries, ministerial agencies and/or specialists must give their opinions about the import of machinery and equipment used in their managing fields, and about the enterprise's application for license to import used machinery or equipment;

d) Within 03 working days from the receipt of written opinions from relevant ministries, ministerial agencies and/or specialists, the Ministry of Science and Technology shall give written response to the enterprise. If the enterprise’s application is refused, such written response must indicate reasons for refusal.

4. Import documents and procedures:

a) Import documents:

Apart from the import documents prescribed by the Law on customs, the enterprise is required to submit the written approval for its import of used machinery or equipment given by the Ministry of Science and Technology as regulated in Clause 3 of this Article;

b) Import procedures:

The enterprise shall submit import documents and the document mentioned in Point a of this Clause to the customs authority where the customs declaration is registered for initiating customs clearance procedures as regulated.

Chapter IV

INSPECTION OF USED MACHINERY, EQUIPMENT AND TECHNOLOGICAL LINES

Article 10. Certificate of inspection of used machinery, equipment and technological lines

1. A certificate of inspection of used machinery, equipment or technological line as regulated in this Decision must, inter alia, include:

a) Name, manufacturing year, brand, number, model, name of country of manufacturing, and name of manufacturer of the used machinery or equipment;

b) Time and location of inspection;

c) Status of the inspected machinery, equipment or technological line (operating or out of order);

d) Inspection method or process; number and name of National Technical Regulation (QCVN), National Standard (TCVN) or national standard of one of G7 countries or Korea with regard to safety, energy saving, and environmental protection (if any) employed to evaluate the conformity of technological line as regulated in Clause 1 Article 5 or evaluate the conformity of machinery or equipment as regulated in Clause 2 Article 6 hereof;

In case National Technical Regulation (QCVN), National Standard (TCVN) or national standard of one of G7 countries or Korea with regard to safety, energy saving, and environmental protection is not available when inspecting used machinery, equipment or technological line, this content must be specified in the inspection certificate.

dd) With regard to inspection of used technological lines: Evaluate and assess inspection results according to each criterion specified in Clauses 1-5 Article 5 hereof, and reach the conclusion whether the used technological line satisfies requirements in Article 5 hereof or not. Regarding the criterion specified in Clause 5 Article 5, name of country, and name of manufacturer applying technologies, contact address, website (if any), and capacity must be specified;

e) With regard to inspection of used machinery and equipment: Evaluate and assess inspection results according to each criterion specified in Clause 1 and Clause 2 Article 6 hereof, and reach the conclusion whether the used machinery or equipment satisfies requirements in Article 6 hereof or not;

g) With regard to inspection of machinery and equipment in cases provided for in Article 9 hereof, make evaluation and assessment of:

- Technical specifications of machinery/ equipment;

- Status of machinery/ equipment;

- Maintenance of machinery/ equipment;

- Its satisfaction of criterion in Clause 2 Article 6 hereof;

- Level of satisfaction of safety, energy saving and environmental protection standards;

- Remaining capacity (which is the number of products that the machinery/equipment produces in a given time period) or performance compared to its design capacity;

- Amount of raw materials/ energy consumed by the machinery or equipment compared to its design consumption level;

- Remaining useful life of piece of machinery/ equipment;

- Color photos of machinery/equipment, including: photos showing overall appearance, photos of main structures of machinery/ equipment, photos of information and/or label affixed on machinery/equipment showing its technical specifications.

2. Validity of an inspection certificate:

a) With regard to a used technological line, the inspection certificate is valid if it has been granted within 18 months before the technological line arrives at a Vietnam’s port;

b) With regard to a piece of used machinery/equipment, the inspection certificate is valid if it has been granted within 06 months before the machinery/equipment arrives at a Vietnam’s port.

3. The inspection of a used technological line according to criteria in Article 5 hereof must be conducted in the exporting country while the technological line is operating.

Article 11. Application and procedures for designation as inspection body for used machinery, equipment and technological lines

1. The Ministry of Science and Technology shall cooperate with relevant ministries and ministerial agencies in designating and accrediting, under bilateral or multilateral agreements, inspection bodies for used machinery, equipment and technological lines, and publishing the list of designated/accredited inspection bodies on the portal of Ministry of Science and Technology for serving enterprises’ selection of inspection services.

2. Requirements to be satisfied by an inspection body:

a) Regarding a domestic inspection body:

It has the Certificate of registration of inspection services granted according to the Government’s Decree No. 107/2016/ND-CP dated July 01, 2016, in which inspection of machinery, equipment and technological lines must be specified.

b) Regarding a foreign inspection body:

It must comply with the law of the host country on inspection services and has been accredited by an accreditation body that is a signatory of conformity assessment mutual recognition agreements of regional or international accreditation organizations with regard to inspection of machinery, equipment and technological lines.

3. Application for registration and procedures for designation as an inspection body:

a) Application for registration and procedures for designation as a domestic inspection body shall conform to Article 18b, Article 18d of the Government’s Decree No. 132/2008/ND-CP dated December 31, 2008, as amended in Clause 8 Article 1 of the Government’s Decree No. 74/2018/ND-CP dated May 15, 2018;

b) An application for registration of designation as a foreign inspection body includes the documents prescribed in Points a, c, d, e Clause 1 Article 18d (for initial registration) or Points a, c, d, e Clause 2 Article 18d (for change or addition of designated inspection fields/scope) of the Government’s Decree No. 132/2008/ND-CP dated December 31, 2008, as amended in Clause 8 Article 1 of the Government’s Decree No. 74/2018/ND-CP dated May 15, 2018, and the copy of the license to provide inspection services issued by a competent authority of the country in which the inspection body registered, enclosed with the consularly legalized Vietnamese translation. Foreign language documents included in the application must be translated into Vietnamese.

Procedures for designation as a foreign inspection body shall conform to Article 18d of the Government’s Decree No. 132/2008/ND-CP dated December 31, 2008, as amended in Clause 8 Article 1 of the Government’s Decree No. 74/2018/ND-CP dated May 15, 2018.

Chapter V

IMPLEMENTATION

Article 12. Responsibility of Ministry of Science and Technology

1. Take charge and cooperate with other Ministries, ministerial agencies and Provincial People’s Committees in managing the import of used machinery, equipment and technological lines set out in this Decision and relevant documents.

2. Publish the list of used machinery, equipment and technological lines discarded by countries because of their obsolescence, low quality, or causing environmental pollution on its portal.

3. Cooperate with other Ministries, ministerial agencies and Provincial People’s Committees in inspecting the observance of regulations of law on safety, economical and effective use of energy, environmental protection with regard to used machinery, equipment and technological lines imported by enterprises when they are put into operation, and imposing penalties for violations in accordance with applicable regulations of law.

4. Cooperate with the Ministry of Finance in periodically producing statistics about import of used machinery, equipment and technological lines (importers’ names, addresses, fields, countries of origins, import value), and cases of violations in which goods must be re-exported and penalties are imposed, and reporting to the Prime Minister.

5. Designate and accredit inspection bodies for used machinery, equipment and technological lines, and publish the list of designated or accredited inspection bodies on its portal.

6. Take charge and cooperate with other Ministries and ministerial agencies in inspecting the inspection of used machinery, equipment and technological lines by designated or accredited inspection bodies in accordance with applicable regulations of law.

Article 13. Responsibility of ministries and ministerial agencies

1. Cooperate with the Ministry of Science and Technology in organizing the implementation of this Decision.

2. Based on social – economic development as well as state management requirements in specialized fields, suggest criteria on age of used machinery and equipment in their managing fields to the Ministry of Science and Technology for consolidating and reporting to the Prime Minister.

Article 14. Responsibility of importers

1. Import used machinery, equipment and technological lines in accordance with this Decision and relevant legislative documents.

2. Bear the inspection conducted by competent authorities; assume legal liability if violating this Decision v.

Article 15. Responsibility of designated/accredited inspection bodies

1. Carry out inspection of used machinery, equipment and technological lines in accordance with this Decision and relevant legislative documents.

2. Ensure independent, objective and scientific inspection; comply with applicable regulations of the law on inspection and assume legal responsibility for accuracy of inspection results; bear inspection and supervision by competent authorities regarding inspection services.

3. Send a copy of the inspection certificate within 15 working days from the signing date of the inspection certificate to the Ministry of Science and Technology in the following circumstances:

a) Inspection of a used technological line;

b) Inspection of used machinery/ equipment in case the issued inspection certificate specifies the unavailability of National Technical Regulation (QCVN), National Standard (TCVN) or national standard of one of G7 countries or Korea with regard to safety, energy saving, and environmental protection with respect to used machinery, equipment and technological lines according to Point d Clause 1 Article 10 hereof.

4. Prepare and submit annual report by December 15 of the same year and ad hoc reports on inspection of used machinery, equipment and technological lines to the Ministry of Science and Technology.

Article 16. Transitional clauses

1. With regard to applications for import of used machinery and equipment approved by Ministry of Science and Technology as regulated in Article 13 of the Circular No. 23/2015/TT-BKHCN before the effective date of this Decision, enterprises may continue their import of used machinery and equipment in accordance with the Circular No. 23/2015/TT-BKHCN dated November 13, 2015 by the Minister of Science and Technology.

2. With regard to applications for import of used machinery and equipment which have been received by Ministry of Science and Technology as regulated in Article 13 of the Circular No. 23/2015/TT-BKHCN before the effective date of this Decision but are still not yet processed on the effective date of this Decision, importers may suggest application of either the Circular No. 23/2015/TT-BKHCN or this Decision.

3. With regard to investment projects requiring import of used machinery/equipment, having carried out procedures according to Clause 2 Article 6 of the Circular No. 23/2015/TT-BKHCN and been granted the Investment Certificate/ Decision on investment proposal before the effective date of this Decision, enterprises may continue importing used machinery/equipment according to the Circular No. 23/2015/TT-BKHCN.

4. As from the date of promulgation of this Decision, inspection bodies are recommended to prepare documents, meet capacity requirements, and apply for registration as inspection bodies according to this Decision.

Inspection bodies whose names published on the portal of the Ministry of Science and Technology according to the Circular No. 23/2015/TT-BKHCN are allowed to provide inspection of used machinery, equipment and technological lines according to this Decision within 60 days from the date of entry into force of this Decision.

Article 17. Implementation

1. This Decision comes into force from June 15, 2019.

2. Where the legislative documents referred to in this Decision are amended or replaced, the new ones shall apply.

3. Difficulties that arise during the implementation of this Decision should be reported to the Ministry of Science and Technology for consolidation and reporting to the Prime Minister.

4. Ministers, heads of ministerial agencies, heads of Governmental agencies, Chairpersons of Provincial People’s Committees, relevant organizations and individuals shall be responsible for implementing this Decision./.

APPENDIX I

AGE OF MACHINERY AND EQUIPMENT IN SPECIFIC FIELDS
(Enclosed with the Prime Minister’s Decision No. 18/2019/QD-TTg dated April 19, 2019)

* Calculation of age (X): X = Year of import – Year of manufacturing

Age is expressed in years only.

E.g.: Equipment A is produced in January, 2008 and imported to Vietnam in December, 2018.

X = 2018 - 2008 = 10 (years)

APPENDIX II

(Enclosed with the Prime Minister’s Decision No. 18/2019/QD-TTg dated April 19, 2019)

To: Ministry of Science and Technology

1. Applicant:

2. Tax code: ...........................................................................................

3. Address:…………………………………………………………………………..……………

4. Telephone/ fax:…………………………………………………………………….

5. Legal representative: ............................................................................................

6. Number of Certificate of enterprise registration: ……Date of issue: ............................

Issuing authority: ......................................................................................................

7. We need to import the following used machinery/equipment:

8. Planned date of import: ………………………………………..

9. Explanations about the necessity of import of used machinery/equipment to maintain manufacturing and business operations, the plan for using imported machinery/equipment, and the necessity of used machinery/equipment to be imported in the technological line:

.............................................................................................................................................

.............................................................................................................................................

.............................................................................................................................................

.............................................................................................................................................

Enclosed documents:

a) The copy of the Certificate of enterprise registration bearing the enterprise’s seal;

b) The inspection certificate issued by an inspection body;

………………………………..(name of enterprise) hereby declares that the used machinery/equipment to be imported as described above shall be used to directly serve our manufacturing in Vietnam, and the machinery/equipment to be imported satisfies safety, energy saving and environmental protection requirements, and shall take legal responsibility for our declaration as well as the accuracy of statements herein./.

Note: Enterprises should consider concluding sales contracts after submitting import documents and obtaining written approval for import from the Ministry of Science and Technology.

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