Decision 18/2019/QD-TTg the import of used machinery, equipment

DECISION

Prescribing the import of used machinery, equipment and technological lines^[1]

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the June 12, 2017 Law on Foreign Trade Management;

Pursuant to the Government’s Decree No. 69/2018/ND-CP of May 15, 2018, detailing a number of articles of the Law on Foreign Trade Management;

At the proposal of the Minister of Science and Technology;

The Prime Minister promulgates the Decision prescribing the import of used machinery, equipment and technological lines.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

1. This Decision prescribes the criteria, dossiers, order and procedures for import and assessment of used machinery, equipment and technological lines with HS codes belonging to Chapters 84 and 85 of Vietnam’s List of Imports and Exports which are imported for use in production activities in Vietnam but not on the lists of goods banned from import promulgated by the Government or Prime Minister or announced by ministries or ministerial-level agencies under the Government’s Decree No. 69/2018/ND-CP of May 15, 2018, detailing a number of articles of the Law on Foreign Trade Management.

2. This Decision does not apply to used machinery, equipment and technological lines falling into the following cases:

a/ Goods in transit or transshipped goods;

b/ Goods in border-gate transfer;

c/ Goods temporarily imported for re-export;

d/ Goods temporarily imported for re-export in other forms prescribed in Article 15 or temporarily exported for re-import prescribed in Article 17 of the Government’s Decree No. 69/2018/ND-CP of May 15, 2018, detailing a number of articles of the Law on Foreign Trade Management (except those temporarily imported for re-export serving the performance of processing contracts; and those imported for production and construction under investment projects);

dd/ Goods serving the performance of repair and warranty service contracts with foreign traders;

e/ Goods traded among enterprises in export processing zones or enterprises in non-tariff zones; and goods being liquidated assets sold by enterprises in export processing zones into the inland;

g/ Goods transferred from foreign partners upon the expiration of processing contracts or financial leasing contracts; goods of which the use purpose is changed into domestic consumption upon the expiration of the period of temporary import for construction of works or temporary import in the form or lease or borrowing for performance of processing contracts for foreign traders; or goods transferred among enterprises performing processing contracts for foreign traders;

h/ Goods serving scientific research and technological development which cannot be produced at home; goods serving performance of security and national defense tasks at the request of line ministries;

i/ Machinery and equipment on the lists of products and goods likely to become unsafe (lists of group-2 products and goods) promulgated by line ministries under the Law on Product and Goods Quality;

k/ Machinery and equipment in specialized fields which are regulated by legal documents issued by ministries or ministerial-level agencies.

Article 2.Subjects of application

This Decision applies to:

1. Organizations and enterprises (below collectively referred to as enterprises) importing used machinery, equipment and technological lines;

2. Assessment bodies conducting assessment of used machinery, equipment and technological lines under this Decision.

3. State management agencies related to the import of used machinery, equipment and technological lines prescribed in Article 1 of this Decision.

Article 3.Interpretation of terms

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

1. Machinery or equipment means a complete structure, comprising details, assemblies and parts which are linked with one another to operate and move according to the designed use purpose.

2. Technological line means a system of machinery, equipment, tools and means which are arranged, installed and linked uninterruptedly at a certain place according to a designed diagram and technological process, ensuring synchronous operation serving production.

3. Used machinery, equipment and technological lines means machinery, equipment and technological lines which have been assembled and put into operation after being released from factory.

4. Equipment age means the period of time (calculated in years) lasting from the year of manufacture to the year of import of used machinery, equipment or technological lines. The year of import is the year when goods arrive at a Vietnam’s border gate.

Article 4.Principles of management of the import of used machinery, equipment and technological lines

1. The import of used machinery, equipment and technological lines must comply with the law on goods import.

2. The import of used machinery, equipment and technological lines is not permitted in the following cases:

a/ Exporting countries have announced that machinery, equipment and technological lines are discarded for their obsoleteness, inferior quality or polluting elements;

b/ Machinery, equipment and technological lines fail to meet law-prescribed requirements on safety, energy efficiency and environmental protection.

3. It is only permitted to import used machinery, equipment and technological lines in direct service of production activities of enterprises in Vietnam.

Chapter II

CRITERIA FOR IMPORT OF USED MACHINERY, EQUIPMENT AND TECHNOLOGICAL LINES

Article 5.Criteria for import of used technological lines

A used technological line may be permitted for import only when meeting the following criteria:

1. The technological line is manufactured under standards which are:

a/ Conformable with Vietnam’s national technical regulations (QCVN) on safety, energy efficiency and environmental protection;

b/ Conformable with technical specifications of Vietnam’s national standards (TCVN) or a G7 country’s or the Republic of Korea’s national standards on safety, energy efficiency and environmental protection, in case there is no Vietnam’s national technical regulation relevant to the to-be-imported technological line.

2. The remaining capacity (calculated in the quantity of products turned out by the technological line per unit of time) or performance must be at least 85% of the designed capacity or performance.

3. The material and energy consumption rate must not exceed the designed rate by more than 15%.

4. The technological line’s technology is not included in the List of technologies banned from transfer or the List of technologies restricted from transfer prescribed in the Government’s Decree No. 76/2018/ND-CP of May 15, 2018, detailing and guiding a number of articles of the Law on Technology Transfer.

5. The technological line’s technology is being used in at least 3 production establishments in member countries of the Organization for Economic Cooperation and Development (OECD).

Article 6.Criteria for import of used machinery and equipment

Used machinery and equipment may be permitted for import only when meeting the following criteria:

1. The equipment age must not exceed 10 years. The age of machinery and equipment in specific fields is specified in Appendix I to this Decision.

2. The machinery or equipment is manufactured under standards which are:

a/ Conformable with Vietnam’s national technical regulations (QCVN) on safety, energy efficiency and environmental protection;

b/ Conformable with technical specifications of Vietnam’s national standards (TCVN) or a G7 country’s or the Republic of Korea’s national standards on safety, energy efficiency and environmental protection, in case there is no Vietnam’s national technical regulation relevant to the to-be-imported machinery or equipment.

Chapter III

DOSSIERS, ORDER AND PROCEDURES FOR IMPORT OF USED MACHINERY, EQUIPMENT AND TECHNOLOGICAL LINES

Article 7.Dossiers, order and procedures for import of used technological lines

1. Import dossier:

In addition to the import dossier prescribed in the Customs Law, an importing enterprise shall also submit the following documents:

a/ A copy of the enterprise registration certificate, affixed with the enterprise’s seal. In case of entrusted import, a document of import entrustment is required;

b/ A certificate of assessment issued by a designated assessment body meeting the conditions prescribed in Article 11 of this Decision. The contents of this certificate must comply with Points a, b, c, d and dd, Clause 1, Article 10 of this Decision.

2. Import order and procedures:

a/ The enterprise shall submit 1 set of the import dossier and the documents prescribed in Clause 1 of this Article to the customs office with which the customs declaration is registered;

b/ The customs office shall carry out customs clearance procedures according to regulations only when the import dossier and the documents prescribed in Clause 1 of this Article are complete and valid and the certificate of assessment states that the used technological line meets the requirements prescribed in Article 5 of this Decision.

Article 8.Dossiers, order and procedures for import of used machinery and equipment

1. Import dossier:

In addition to the import dossier prescribed in the Customs Law, an importing enterprise shall also submit the following documents:

a/ A copy of the enterprise registration certificate, affixed with the enterprise’s seal. In case of entrusted import, a document of import entrustment is required;

b/ The original of a written certification issued by the machinery or equipment manufacturer stating that the year of manufacture of, and standards applicable to, the machinery or equipment meet the criteria prescribed in Article 6 of this Decision, in case the machinery or equipment is manufactured in a G7 country or the Republic of Korea. The written certification must be consularly legalized and enclosed with its Vietnamese translation;

c/ A certificate of assessment issued by a designated assessment body meeting the requirements prescribed in Article 11 of this Decision, in case the machinery or equipment is manufactured in a G7 country or the Republic of Korea but the manufacturer’s written certification is unavailable or the machinery or equipment is manufactured in a country other than a G7 country or the Republic of Korea. The contents of the certificate of assessment must comply with Points a, b, c, d and e, Clause 1, Article 10 of this Decision.

2. Import order and procedures:

a/ The enterprise shall submit 1 set of the import dossier and the documents prescribed in Clause 1 of this Article to the customs office with which the customs declaration is registered;

b/ The customs office shall carry out customs clearance procedures according to regulations only when the import dossier and the documents prescribed in Clause 1 of this Article are complete and valid. For cases requiring a certificate of assessment under Point c, Clause 1 of this Article, the certificate of assessment must state a conclusion that the used machinery or equipment meets the requirements prescribed in Article 6 of this Decision.

3. Bringing out goods for preservation:

a/ In case of importing used machinery or equipment but at the time of submitting the import dossier prescribed in Clause 1 of this Article, the importing enterprise still fails to produce the manufacturer’s written certification prescribed at Point b, Clause 1 of this Article and fails to provide the certificate of assessment prescribed at Point c, Clause 1 of this Article, the enterprise may bring the goods out for preservation in accordance with the customs law after submitting to the custom office a written registration for assessment of machinery or equipment, certified by a designated assessment body under this Decision;

b/ The enterprise shall submit the certificate of assessment to the customs office within 30 days after bringing out the machinery or equipment for preservation. The customs office shall carry out customs clearance procedures according to regulations only when the import dossier and the documents prescribed in Clause 1 of this Article are complete and valid and the certificate of assessment states a conclusion that the used machinery or equipment meets the requirements prescribed in Article 6 of this Decision.

In case the assessment result states that the machinery or equipment does not meet the requirements prescribed in Article 6 of this Decision, the enterprise shall be handled according to regulations on sanctioning of customs-related administrative violations.

Article 9.Import of used machinery and equipment in other cases

1. In case an enterprise which is conducting production activities in Vietnam and, in order to maintain its production activities, wishes to import used machinery or equipment which has the age exceeding that prescribed in Clause 1, Article 6 of this Decision but the remaining capacity (calculated in the quantity of products turned out by the machinery or equipment per unit of time) or performance reaches 85% or higher of the designed capacity or performance and the material and energy consumption rate does not exceed the designed rate by more than 15%, the enterprise shall submit directly or send by post or via the online public service portal to the Ministry of Science and Technology 1 set of dossier of request for permission for import for consideration and settlement.

2. A dossier of request for permission for import must comprise:

a/ A written request for permission for import of used machinery or equipment, made according to the form provided in Appendix II to this Decision, clearly explaining the necessity to import the machinery or equipment in order to maintain production and business activities, plan on use of the machinery or equipment, and the necessity of the to-be-imported machinery or equipment in the enterprise’s technological line;

b/ A copy of the enterprise registration certificate, affixed with the enterprise’s seal;

c/ A certificate of assessment issued by a designated assessment body under Article 11 of this Decision. The contents of this certificate must comply with Points a, b, c, d and g, Clause 1, Article 10 of this Decision;

3. Order and procedures for consideration of the dossier:

a/ In case the dossier is incomplete or invalid, the Ministry of Science and Technology shall:

- Immediately return the dossier to the enterprise for amendment or supplementation, in case the dossier is submitted at the single-window dossier receipt division of the Ministry of Science and Technology;

- Request the enterprise to amend or supplement the dossier within 8 working hours after receiving it, in case the dossier is submitted via the Ministry of Science and Technology’s portal;

- Issue a reply requesting the enterprise to amend or supplement the dossier within 2 working days after receiving it, in case the dossier is sent by post to the Ministry of Science and Technology.

b/ Within 2 working days after receiving a complete and valid dossier, the Ministry of Science and Technology shall send a written request, enclosed with a copy of the dossier, to each of related ministries and ministerial-level agencies for opinion. When necessary, the Ministry of Science and Technology may consult experts on the used machinery or equipment requested for import;

c/ Within 10 working days after receiving the Ministry of Science and Technology’s request, the consulted ministries, ministerial-level agencies and experts shall give their opinions on the enterprise’s request for permission for import of the machinery or equipment;

d/ Within 3 working days after receiving opinions of the consulted ministries, ministerial-level agencies and experts, the Ministry of Science and Technology shall issue a written reply to the enterprise; if rejecting the request for permission for import of the machinery or equipment, it shall clearly state the reason.

4. Import dossier, order and procedures:

a/ Import dossier

In addition to the import dossier prescribed by the Customs Law, the enterprise shall also submit the Ministry of Science and Technology’s written approval for the import of used machinery or equipment as prescribed in Clause 3 of this Article;

b/ Import order and procedures

The enterprise shall submit the import dossier and the document prescribed at Point a of this Clause to the customs office with which the customs declaration is registered for the latter to perform customs clearance procedures according to regulations.

Chapter IV

ASSESSMENT OF USED MACHINERY, EQUIPMENT AND TECHNOLOGICAL LINES

Article 10.Certificates of assessment of used machinery, equipment and technological lines

1. A certificate of assessment of used machinery, equipment or technological line prescribed in this Decision must state the following contents:

a/ Name, year of manufacture, brand, number sign, model, country of manufacture and name of manufacturer of the used machinery, equipment or technological line;

b/ Time and place of assessment;

c/ State of the machinery, equipment and technological line upon assessment (in operation or not in operation);

d/ Method of assessment, process of assessment; code(s) and title(s) of Vietnam’s national technical regulation(s) (QCVN), Vietnam’s national standard(s) (TCVN) or national standard(s) of a G7 country or the Republic of Korea on safety, energy efficiency and environmental protection (if any) used to assess the conformity of the technology line according to Clause 1, Article 5, or of the machinery or equipment according to Clause 2, Article 6, of this Decision;

In case there is no Vietnam’s national technical regulation (QCVN), Vietnam’s national standard (TCVN) or national standard of a G7 country or the Republic of Korea on safety, energy efficiency and environmental protection relevant to the used machinery, equipment or technological line, such must be clearly stated in the certificate of assessment.

dd/ For used technological lines: Comments on and evaluations of the assessment result against each of the criteria prescribed in Clauses 1, 2, 3, 4 and 5, Article 5 of this Decision and a conclusion on whether the used technological line meets the requirements prescribed in Article 5 of this Decision. For the criterion prescribed in Clause 5, Article 5, it is required to list the name of the country, name of production establishment using the technology and their addresses and websites (if any), and capacity;

e/ For used machinery and equipment: Comments on and evaluations of the assessment result against each of the criteria prescribed in Clauses 1 and 2, Article 6 of this Decision and a conclusion on whether the used machinery or equipment meets the requirements prescribed in Article 6 of this Decision;

g/ For machinery or equipment falling into the case prescribed in Article 9 of this Decision, comments on and evaluations of:

- Technical properties of the machinery or equipment;

- Operating state of the machinery or equipment;

- Maintenance and warranty status of the machinery or equipment;

- Satisfaction of the criteria prescribed in Clause 2, Article 6 of this Decision;

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

- Capacity (calculated in the quantity of products turned out by the machinery or equipment per unit of time) or remaining performance of the machinery or equipment compared to the designed performance;

- Material and energy consumption rate of the machinery or equipment compared to the designed rate;

- Remaining use period of the machinery or equipment;

- Color pictures of the machinery or equipment showing its exterior image, images of its major assemblies, and information and labels attached to the machinery or equipment showing its technical properties.

2. A certificate of assessment shall be accepted as valid for carrying out the procedures under this Decision within:

a/ Eighteen months, counted from the time the certificate is issued to the time the technological line arrives at a border gate of Vietnam, in case of assessment of used technological lines;

b/ Six months, counted from the time the certificate is issued to the time the machinery or equipment arrives at a border gate of Vietnam, in case of assessment of used machinery or equipment.

3. The assessment of used technology lines based on the criteria prescribed in Article 5 of this Decision must be conducted at exporting countries when the technological lines are in operation.

Article 11.Dossier, order and procedures for designation of assessment bodies conducting assessment of used machinery, equipment and technological lines

1. The Ministry of Science and Technology shall coordinate with ministries and ministerial-level agencies in designating and recognizing under bilateral or multilateral recognition agreements assessment bodies conducting assessment of used machinery, equipment and technological lines and publicize the list of designated and recognized assessment bodies on its portal for enterprises to know and select.

2. Requirements on assessment bodies

a/ For domestic assessment bodies:

Having been granted a certificate of registration for assessment service provision under the Government’s Decree No. 107/2016/ND-CP of July 1, 2016, prescribing conditions for provision of conformity assessment services, which covers the field of assessment of machinery, equipment and technological lines.

b/ For foreign assessment bodies:

Complying the host countries’ law on assessment services and having been accredited by accreditation bodies being signatories to agreements on mutual recognition of conformity assessment results of regional or international accreditation bodies with regard to the field of assessment of machinery, equipment and technological lines.

3. Registration dossiers and order and procedures for designation

a/ The registration dossier and order and procedures for designation of a domestic assessment body must comply with Articles 18b and 18d of the Government’s Decree No. 132/2008/ND-CP of December 31, 2008, detailing a number of articles of the Law on Product and Goods Quality (below referred to as Decree No. 132/2008/ND-CP), which was amended and supplemented under Clause 8, Article 1 of the Government’s Decree No. 74/2018/ND-CP of May 15, 2018, amending and supplementing a number of articles of Decree No. 132/2008/ND-CP.

b/ A dossier of registration for designation of a foreign assessment body must comprise the documents prescribed at Points a, c, d and e, Clause 1, Article 18b of Decree No. 132/2008/ND-CP,  for cases of first-time designation; or the documents prescribed at Points a, c, d and e, Clause 2, Article 18b of Decree No. 132/2008/ND-CP and a copy, enclosed with its consularly legalized Vietnamese translation, of the license for provision of assessment services issued by a competent authority of the country where the assessment body registers its operation, for cases of changing or adding the scope or fields of designation. Documents included in the dossier must be translated into Vietnamese.

The order and procedures for designation of foreign assessment bodies must comply with Article 18d of Decree No. 132/2008/ND-CP of December 31, 2008.

Chapter V

ORGANIZATION OF IMPLEMENTATION

Article 12.Responsibilities of the Ministry of Science and Technology

1. To assume the prime responsibility for, and coordinate with other ministries, ministerial-level agencies and provincial-level People’s Committees in, managing the import of used machinery, equipment and technological lines as specified in this Decision and relevant documents.

2. To publish on its portal a list of used machinery, equipment and technological lines announced by foreign countries to be discarded for their obsoleteness, inferior quality and polluting elements.

3. To coordinate with other ministries, ministerial-level agencies and provincial-level People’s Committees in inspecting the observance of the law on safety, energy efficiency and environmental protection for used machinery, equipment and technological lines imported and put into operation, and handling violations in accordance with law.

4. To coordinate with the Ministry of Finance in making annual statistics on the import of used machinery, equipment and technological lines (names of importing enterprises, addresses, fields where machinery, equipment and technological lines are used, countries of manufacture and import value), and cases of violation subject to forced re-export and sanctioning for reporting to the Prime Minister.

5. To designate and recognize assessment bodies conducting assessment used machinery, equipment and technological lines, and publish on its portal a list of designated and recognized assessment bodies.

6. To assume the prime responsibility for, and coordinate with other ministries and ministerial-level agencies in, inspecting and examining the assessment of used machinery, equipment and technological lines by designated and recognized assessment bodies in accordance with law.

Article 13.Responsibilities of ministries and ministerial-level agencies

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

2. Based on socio-economic development situation as well as state management requirements in their specialized fields, to propose criteria on age of other used machinery and equipment under their management to the Ministry of Science and Technology for summarizing and submitting them to the Prime Minister for consideration and approval.

Article 14.Responsibilities of enterprises importingused machinery, equipment and technological lines

1. To import used machinery, equipment and technological lines in accordance with this Decision and relevant legal documents.

2. To be subject to inspection by competent state management agencies; to take responsibility before law for their violations of this Decision and relevant legal documents.

Article 15.Responsibility of designated and recognized assessment bodies

1. To assess used machinery, equipment and technological lines in accordance with this Decision and relevant legal documents.

2. To adhere to the principles of independence, objectivity and scientificity in assessment activities; to comply with the law on assessment and take responsibility before law for the accuracy of assessment results; and to be subject to inspection and examination by state management agencies in charge of assessment.

3. To send 1 copy of the certificate of assessment to the Ministry of Science and Technology within 15 days after signing such certificate in the following cases:

a/ Assessing used technological lines;

b/ Assessing used machinery or equipment of which the certificate of assessment states that there is no Vietnam’s national technical regulation (QCVN), Vietnam’s national standard (TCVN) or a G7 country’s or the Republic of Korea’s national standard on safety, energy efficiency and environmental protection relevant to the used machinery, equipment or technological line prescribed at Point d, Clause 1, Article 10 of this Decision.

4. To make and send reports on assessment of used machinery, equipment and technological lines to the Ministry of Science and Technology before December 15 every year or upon request.

Article 16.Transitional provisions

1. In case their dossiers of request for import of used machinery and equipment have been approved by the Ministry of Science and Technology under Article 13 of the Ministry of Science and Technology’s Circular No. 23/2015/TT-BKHCN of November 13, 2015, providing the import of used machinery, equipment and technological lines (below referred to as Circular No. 23/2015/TT-BKHCN) before the effective date of this Decision, enterprises may continue conducting the import under Circular No. 23/2015/TT-BKHCN.

2. In case their dossiers of request for import of used machinery and equipment have been received by the Ministry of Science and Technology under Article 13 of Circular No. 23/2015/TT-BKHCN before the effective date of this Decision but the dossier processing result remains unavailable at the time this Decision takes effect, enterprises may choose to conduct the import under either Circular No. 23/2015/TT-BKHCN or this Decision.

3. In case their investment projects have imported used machinery and equipment under Clause 2, Article 6 of Circular No. 23/2015/TT-BKHCN and have been granted investment registration certificates or investment policy decisions before the effective date of this Decision, enterprises may continue conducting the import under Circular No. 23/2015/TT-BKHCN.

4. Together with the promulgation of this Decision, assessment bodies are encouraged to prepare dossiers, build capacity and register for designation under this Decision.

Assessment bodies on the list published on the portal of the Ministry of Science and Technology under Circular No. 23/2015/TT-BKHCN may continue conducting assessment of used machinery, equipment and technological lines under this Decision within 60 days from the effective date of this Decision.

Article 17.Implementation provisions

1. This Decision takes effect on June 15, 2019.

2. In case the legal documents referred to in this Decision are amended, supplemented or replaced, the amending, supplementing or replacing documents shall prevail.

3. Any problems arising in the course of implementation of this Decision should be reported to the Ministry of Science and Technology for summarization and reporting to the Prime Minister for consideration and decision.

4. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, and related organizations and individuals shall implement this Decision.-

For the Prime Minister
Deputy Prime Minister
TRINH DINH DUNG

APPENDIX I

PROVISIONS ON EQUIPMENT AGE APPLICABLE TO MACHINERY AND EQUIPMENT IN SPECIFIC FIELDS

(To the Prime Minister’s Decision No. 18/2019/QD-TTg of April 19, 2019)

* Calculation of equipment age (X): X = Year of import - Year of manufacture

Equipment age is calculated in years, not in months.

E.g., equipment A is manufactured in January 2008, and imported into Vietnam in December 2018.

X = 2018 - 2008 = 10 (years)

APPENDIX II

(To the Prime Minister’s Decision No. 18/2019/QD-TTg of April 19, 2019)

To: Ministry of Science and Technology

1. Name of the enterprise:

2. Tax identification number: .................................................................

3. Address:

4. Telephone number/fax number:

5. At-law representative: ......................................................................

6. Enterprise registration certificate No.: ……. Date of grant: ................

Certificate-granting agency: ..................................................................

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

8. Estimated date of import: ………………………………………..

9. Explanations about the necessity of import of used machinery and/or equipment to maintain production and business, the plan for use, and the necessity of the to-be-imported machinery and/or equipment in the technological line:...................................................................................................

Enclosed documents:

a/ A copy of the enterprise registration certificate affixed with the enterprise’s seal;

b/ A certificate of assessment issued by an assessment body;

………………………………..(name of enterprise) undertakes to import the used machinery and/or equipment mentioned above in direct service of production activities in Vietnam; the machinery and/or equipment meet(s) safety, energy efficiency and environmental protection requirements. We will take responsibility before law for our undertaking as well as the accuracy of above information.-

Note:Enterprises should consider concluding purchase and sale contracts after registering import dossiers and obtaining a written approval for import from the Ministry of Science and Technology.