Circular No. 38/2014/TT-BCT detailing certain provisions of Government Decree No. 83/2014/NĐ-CP dated September 3, 2014 on petroleum business

 

CIRCULAR

Article 24providing detailed regulations on certain provisions of Decree No. 83/2014/NĐ-CP

ON SEPTEMBER 3, 2014 OF THE GOVERNMENT ON PETROLEUM TRADING

_________________

 

Pursuant to Decree No. 95/2012/NĐ-CP dated November 12, 2012, of the Government, detailing the functions, tasks, powers, and organizational structure of the Ministry of Industry and Trade;

- Sending via fax or email to the address [email protected] (scanned copy)."

Pursuant to Decree No. 35/2006/ND-CP dated March 31, 2006 of the Government detailing the Law on Commerce regarding franchising activities;

The Minister of Industry and Trade issues this Circular to provide detailed regulations on certain provisions of Decree No. 83/2014/NĐ-CP dated September 3, 2014 of the Government on trading in petroleum products.

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

2. This Circular applies to Vietnamese traders engaged in petroleum trading in the Vietnamese market.

1. Principal agent: is the principal trader or distributor of petroleum or the general agent when transferring petroleum to the agent.

2. Agent: is the general agent or retail agent when receiving petroleum from the principal agent.

a) Is the principal trader selling petroleum to another principal trader or to a distributor;

b) Is the distributor selling petroleum to another distributor.

b) Is a petroleum product distributor purchasing petroleum products from principal traders or from other petroleum product distributors;

b) Is the distributor purchasing petroleum from principal traders or from other distributors.

5. Retail petroleum franchise grantor: is the principal trader or distributor granting commercial rights to the retail petroleum franchisee.

6. Retail petroleum franchisee: is the trader operating petroleum who receives commercial rights from the retail petroleum franchise grantor.

7. Retail petroleum franchise: refers to the act where the franchisor permits and requires the franchisee to conduct retail sales of petroleum products according to a system prescribed by the franchisor and associated with goods, brand names, trade names, advertising slogans, business logos, and advertisements of the franchisor. The term of the petroleum product retail franchise agreement must be consistent with the validity period of the Export and Import License of the trader engaged in export and import of petroleum products or the Certificate of Eligibility for Petroleum Product Distributor, but shall not be less than twelve (12) months.

Article 3. Agency Contract for Petroleum Products

1. The agency contract for petroleum products must be established in writing and include the following main contents:

a) Name, address, tax code of the agent and the principal; form of agency; quantity, quality, type of petroleum products, method of delivery and receipt, selling price, commission; other commitments as stipulated by law and this Circular;

b) Responsibilities of the parties regarding the quality of petroleum products; inspection and supervision systems for the quality of petroleum products and joint liability for the quantity and quality of petroleum products sold within the system of petroleum product agents of the main trader or distributor or general agent (when acting as the principal);

c) Specific provisions on the provision of invoices and certificates; payment of commissions; invoices and certificates for goods in transit for petroleum product agent transport vehicles as prescribed by the Ministry of Finance;

d) Selection of petroleum product agent transport vehicles, provisions on insurance for persons and vehicles, ensuring safety during transportation, responsibility for quantity and quality of petroleum products, risks, losses, procedures for delivery and receipt, freight charges, and other provisions agreed upon and committed to in the agency contract.

Article 4. Purchase and Sale Contract for Petroleum Products

The purchase and sale contract for petroleum products must be established in writing and include the following main contents:

1. Name, address, tax code of the seller and buyer; quantity, quality, type of petroleum products, method of delivery and receipt, purchase price, selling price; other commitments as prescribed by law and this Circular.

2. Responsibilities of the parties regarding the quality of petroleum products.

3. Specific provisions on the supply of invoices and certificates for petroleum product purchases and sales; invoices and certificates for goods in transit for petroleum product agent transport vehicles as prescribed by the Ministry of Finance.

Article 5. Franchise Contract for Retailing Petroleum Products

1. The franchise contract for retailing petroleum products must be established in writing and include the following main contents:

a) Name, address, tax code of the franchisor and franchisee; content of the right to sell petroleum products at retail; quantity, quality, type of petroleum products, method of delivery and receipt; prices, periodic franchise fees, payment methods; other commitments as stipulated by law and this Circular;

b) Specific provisions on the supply of invoices and certificates for petroleum products when implementing franchising activities; invoices and certificates for goods in transit for petroleum product franchisee transport vehicles as prescribed by the Ministry of Finance;

2. The minimum term of the contract shall be twelve (12) months.

1. Within thirty (30) working days from the date of receiving complete and valid files, the Ministry of Industry and Trade shall be responsible for reviewing, assessing, inspecting actual capacity, and issuing Export and Import Licenses for petroleum products; Certificates of Eligibility for Petroleum Product Distributors; Certificates of Eligibility for General Agents of Petroleum Products (with a distribution system in two or more centrally governed cities or provinces) to traders.

Depending on specific cases, the Ministry of Industry and Trade may coordinate or delegate provincial industry and trade departments where the trader's headquarters is located, or provincial industry and trade departments where the trader has petroleum product business premises, to assess and inspect the actual capacity of the trader, prepare written reports to submit to the Ministry of Industry and Trade for review and issuance of Certificates of Eligibility for Petroleum Product Distributors, Certificates of Eligibility for General Agents of Petroleum Products.

Within thirty (30) working days from the date of receiving complete and valid files, provincial industry and trade departments shall be responsible for reviewing, assessing, inspecting actual capacity, and issuing Certificates of Eligibility for General Agents of Petroleum Products (with a distribution system in one centrally governed city or province); Certificates of Eligibility for Retail Petroleum Product Agents; Certificates of Eligibility for Retail Petroleum Product Stores.

3. In case the actual inspection results match the application files of the trader:

a) The Ministry of Industry and Trade shall issue licenses to the trader according to Model No. 2, Model No. 6, Model No. 8 attached to Decree No. 83/2014/NĐ-CP;

b) Provincial industry and trade departments shall issue licenses to the trader according to Model No. 4, Model No. 8, Model No. 10 attached to Decree No. 83/2014/NĐ-CP.

4. In case of issuing new licenses, the trader shall send one (01) set of files (copies) to the Ministry of Industry and Trade, provincial industry and trade departments via official correspondence.

5. In case of supplementing, amending, or reissuing Export and Import Licenses for petroleum products, the trader shall send one (01) set of files to the Ministry of Industry and Trade, provincial industry and trade departments via official correspondence or through electronic means as notified by the Ministry of Industry and Trade, provincial industry and trade departments on their websites.

6. The trader shall be responsible for paying fees and taxes as prescribed by law. The use of fees and taxes shall be regulated by the Ministry of Finance and the Ministry of Industry and Trade.

Chapter II
PETROLEUM PRODUCTS BUSINESS ACTIVITY

Article 7. Petroleum traders engaged in export and import of petroleum products.

Business entities engaged in exporting and importing petroleum products shall be responsible for:

1. Register the petroleum distribution system periodically with the Ministry of Industry and Trade before January 31 each year, according to Form No. 1 attached as an appendix to this Circular. When there is a change in the petroleum distribution system of the main trader, within thirty (30) working days from the date of such change, the main trader must submit an adjusted registration to the Ministry of Industry and Trade.

4. Signing agency contracts to deliver petroleum products to the receiving agent, which is the general agent or the agent implementing petroleum product distribution.

5. Signing purchase and sale contracts for petroleum products with other main business entities; selling petroleum products to distribution business entities.

6. Signing franchise contracts to sell petroleum products at retail with business entities accepting the right to sell petroleum products at retail.

Subsidiaries of petroleum traders engaged in export and import of petroleum products, as provided for in the Enterprise Law, shall carry out tasks within the scope of authorization granted by the petroleum traders, including:

a) Selling petroleum products wholesale to production units and direct consumers;

b) Signing contracts for selling petroleum products to petroleum product distributors;

c) Signing franchise contracts for retailing petroleum products with retailers;

d) Signing agency delivery contracts.

8. Manage the petroleum distribution system, traders within the petroleum distribution system of the main trader, ensuring compliance with legal regulations for petroleum business operations, market stability, and prices.

a) For warehouses and transportation means: submitting to the Ministry of Industry and Trade within fifteen (15) working days from the completion of the schedule;

b) For retail gasoline stations: submitting to the Ministry of Industry and Trade within fifteen (15) working days at the beginning of the following year's reporting period.

Petroleum Product Distributors shall be responsible for:

1. Register the petroleum distribution system periodically with the Ministry of Industry and Trade before January 31 each year, according to Form No. 1 attached as an appendix to this Circular. When there is a change in the petroleum distribution system, within ten (10) working days from the date of such change, the trader must submit an adjusted registration to the Ministry of Industry and Trade.

2. Report petroleum import-export-inventory data and petroleum inventory in three Regions according to Form No. 2 attached as an appendix to this Circular, sent to the Ministry of Industry and Trade on a monthly, quarterly, and annual basis, and provide a quick report when requested by the Ministry of Industry and Trade. Petroleum distributors send periodic reports to the Ministry of Industry and Trade before the twentieth (20) day of the first month of the next period.

3. Sign contracts to purchase petroleum from the main trader or other petroleum distributors in accordance with the provisions of Article 15 of Decree No. 83/2014/NĐ-CP.

4. Signing agency contracts to deliver petroleum products to the receiving agent implementing petroleum product distribution.

5. Signing franchise contracts to sell petroleum products at retail with business entities accepting the right to sell petroleum products at retail.

6. Manage the petroleum distribution system, traders within the petroleum distribution system of the petroleum distributor, ensuring compliance with legal regulations for petroleum business operations, market stability, and prices.

Article 9. General Agent for Gasoline and Oil Trading

The business entity acting as a general agent for gasoline and oil trading shall be responsible for:

1. Register the total agency's petroleum distribution system periodically with the agency granting the agency, the Department of Industry and Trade where the trader has a distribution system, and the Ministry of Industry and Trade before January 10 each year, according to Form No. 1 attached as an appendix to this Circular. When there is a change in the total agency's petroleum distribution system, within ten (10) working days from the date of such change, the trader acting as the total agency must submit an adjusted registration to the agency granting the agency, the Department of Industry and Trade where the trader has a distribution system, and the Ministry of Industry and Trade.

2. Sign a contract to act as a total agency for petroleum trading in accordance with the provisions of Article 18 of Decree No. 83/2014/NĐ-CP. The total agency must terminate the existing agency contract with the agency granting the agency before signing a total agency contract with another agency granting the agency.

3. Signing an agency contract to supply gasoline and oil to the recipient agency for distribution.

4. Based on the signed contract with the principal, organizing continuous and stable supply of gasoline and oil to the entire distribution system of the general agency, fully and promptly meeting market demand.

5. Not selling at a price higher than the retail price set by the key trader.

6. Refusing to accept gasoline and oil from the principal if there is evidence that the quality of the gasoline and oil is not guaranteed.

Article 10. Retail Agency for Gasoline and Oil

The business entity acting as a retail agency for gasoline and oil shall be responsible for:

3. Ensuring continuous supply of gasoline and oil to the market and not selling at a price higher than the retail price set by the key trader or the distributor of gasoline and oil.

4. Refusing to accept gasoline and oil from the principal if there is evidence that the quality of the gasoline and oil is not guaranteed.

The business entity receiving rights to sell gasoline and oil at retail shall be responsible for:

2. Sign a contract to accept the right to sell retail petroleum in accordance with the provisions of Article 23 of Decree No. 83/2014/NĐ-CP and in compliance with the law on franchising. The trader accepting the right to sell retail petroleum must terminate the existing franchise contract with the current franchisor before signing a contract to accept the right to sell retail petroleum with another franchisor.

Chapter III
EXPORT, IMPORT, TEMPORARY IMPORT FOR RE-EXPORT, AND TRANSFER OF GASOLINE AND OIL AND RAW MATERIALS

1. Petroleum traders engaged in export and import of petroleum products submit one (01) set of registration files for the minimum import quota of petroleum products for the next year in accordance with Article 34 of Decree No. 83/2014/NĐ-CP to the Ministry of Industry and Trade before November 15 of the current year.

2. Within thirty (30) working days from the date of receipt of the registration files of petroleum traders engaged in export and import of petroleum products, the Ministry of Industry and Trade will allocate the minimum import quota of petroleum products to each enterprise based on the total domestic demand for petroleum consumption in the domestic market, the total domestic production and blending of petroleum products, and by type of petroleum product.

3. In cases where the minimum annual import quota for gasoline and oil is not allocated to a business, the Ministry of Industry and Trade shall respond in writing and specify the reasons.

4. If there is a need to adjust the minimum annual import quota for gasoline and oil, the business shall send a written request for adjustment to the Ministry of Industry and Trade before September 30 of each year.

5. Enterprises engaged in exporting and importing gasoline and diesel must ensure the import progress quarterly or according to the guidance document of the Ministry of Industry and Trade in cases where the Ministry of Industry and Trade issues specific guidance documents on the import progress of gasoline and diesel to ensure supply sources.

Article 13. Export of Gasoline and Oil and Raw Materials

1. Businesses engaged in exporting and importing gasoline and oil may only export gasoline and oil after obtaining approval from the Ministry of Industry and Trade.

2. The Ministry of Industry and Trade will consider enterprises' export proposals based on balancing supply sources, domestic consumption needs, to ensure that exports do not affect the supply and demand of gasoline and diesel in the domestic market.

3. The export of raw materials (excluding gasoline and oil) does not require a permit.

5. Enterprises submit the Export Registration Form for gasoline and diesel to the Ministry of Industry and Trade via postal service, according to Model No. 4 attached to this Circular. Within seven (07) working days from the date of receipt of the enterprise's registration form, the Ministry of Industry and Trade shall issue a document approving the export or a document notifying the reasons for disagreement.

Article 14. Temporary Import for Re-export, Transshipment of Gasoline and Oil and Raw Materials

1. Only businesses holding a Business License for exporting and importing gasoline and oil may engage in temporary import for re-export, transshipment of gasoline and oil and raw materials.

2. Enterprises selling gasoline and diesel to entities specified in Point a Clause 5 Article 35 Decree No. 83/2014/ND-CP must have registered business activities in supplying aviation fuel. Enterprises selling gasoline and diesel to entities specified in Point b Clause 5 Article 35 Decree No. 83/2014/ND-CP must have registered business activities in providing marine vessel services or through a marine vessel supply company acting as an agent to sell gasoline and diesel.

5. Enterprises engaged in temporary import for re-export, transshipment of gasoline and diesel and raw materials may convert the quantity of temporarily imported gasoline and diesel that has not been re-exported or not fully re-exported after fulfilling all tax and financial obligations, including late payment penalties (if applicable), in accordance with regulations and must comply with current regulations on quality standards for imported gasoline and diesel circulating in the domestic market.

Chapter IV
PRODUCTION AND PROCESSING FOR EXPORT OF GASOLINE AND OIL

Article 15. Production of gasoline and diesel fuel, importation of raw materials for production of gasoline and diesel fuel

1. Business operators producing gasoline and diesel fuel must register their plans for production of gasoline and diesel fuel, importation of raw materials for production of gasoline and diesel fuel, and consumption of gasoline and diesel fuel products with the Ministry of Industry and Trade.

2. The importation of raw materials for production of gasoline and diesel fuel and the exportation of gasoline and diesel fuel produced shall be carried out according to the registered plan and confirmed by the Ministry of Industry and Trade.

3. Enterprises are only allowed to register imports of types of raw materials specified in Clause 6 Article 3 Decree No. 83/2014/ND-CP, in line with production capacity.

4. Imported raw materials can only be used for the production of gasoline and diesel fuel at the business operator's facility. Any change in the purpose of using raw materials must be agreed upon in writing by the Ministry of Industry and Trade.

Article 16. Documents and procedures for registering plans for production of gasoline and diesel fuel, importation of raw materials for production of gasoline and diesel fuel, and consumption of gasoline and diesel fuel products

1. The documents for registering plans for production of gasoline and diesel fuel, importation of raw materials for production of gasoline and diesel fuel, and consumption of gasoline and diesel fuel products include:

a) Application form for registration of plans for production of gasoline and diesel fuel, importation of raw materials for production of gasoline and diesel fuel, and consumption of gasoline and diesel fuel products according to Model No. 6 attached hereto: four (04) original copies.

b) Investment certificate or Enterprise Registration Certificate: one (01) certified true copy of the business operator.

c) Documents proving that the enterprise has a gasoline and diesel production facility in accordance with approved planning and has been issued an Investment Certificate by the competent authority: a certified true copy stamped by the enterprise.

d) Documents proving that the enterprise has a laboratory under its ownership, capable of testing and inspecting gasoline and diesel quality indicators in accordance with national technical standards: a certified true copy stamped by the enterprise.

2. Business operators with stable production facilities need not submit the documents stipulated in points b, c, and d of Clause 1 of this Article from the second registration onwards.

a) Before October 30 each year, enterprises producing gasoline and diesel submit registration files for the next year's production plan, importation of raw materials for production, and consumption of gasoline and diesel products as stipulated in Clause 1 of this provision.

b) Within ten (10) working days from the date of receiving the enterprise's registration file, the Ministry of Industry and Trade confirms the registration of the production plan, importation of raw materials for production, and consumption of gasoline and diesel products for the enterprise to implement. The confirmation document is sent to the General Department of Customs - Ministry of Finance for import procedures and control, and to the General Department of Standard Measurement Quality - Ministry of Science and Technology for monitoring compliance with conditions and provisions set out in Articles 10 and 11 of Decree No. 83/2014/ND-CP.

In case of refusal to confirm, the Ministry of Industry and Trade will issue a notification to inform the business operator of the reasons.

5. In cases where enterprises fail to implement the confirmed production and blending plans accurately, they must submit a report detailing the reasons and requesting the Ministry of Industry and Trade to confirm adjustments to the production, blending, importation of raw materials, and consumption of gasoline and diesel product plans.

Article 17. Processing for Export of Petroleum Products

1. Only traders producing petroleum products shall be allowed to accept processing for export of petroleum products.

2. In cases where the commissioning party designates the sale of commissioned products to Vietnamese enterprises for domestic consumption, the commissioned products can only be sold to principal enterprises and must comply with current regulations on quality standards for imported gasoline and diesel circulating in the domestic market.

3. In cases where traders engaged in exporting and importing petroleum products purchase processed petroleum products, such purchases shall be deducted from their minimum import quota for petroleum products.

Chapter V
IMPLEMENTATION

Article 18. Effective Date

This Circular shall take effect from November 1, 2014.

Article 19. Responsibility for Implementation

1. Domestic Market Department

a) To lead and coordinate with relevant units to guide localities and enterprises in implementing tasks stipulated in Article 6 of Chapter I and Chapter II of this Circular;

b) To lead and coordinate with relevant units to inspect conditions, issue, and revoke licenses and certificates issued according to the provisions of Article 6 of this Circular.

a) Take the lead in coordinating with relevant units to review, amend, supplement, and perfect national technical standards regarding the design requirements for land-based and water-based gasoline stations, to be uniformly implemented nationwide;

b) To lead and coordinate with relevant units to establish the loss rate for petroleum products for state management purposes;

3. The E-commerce and Information Technology Department takes the lead in coordinating with the Domestic Market Department, the Financial Department, and the Ministry's Office to publicly disclose information on gasoline and diesel trading and corporate financial information on the Ministry's electronic information website.

4. Units under the Ministry of Industry and Trade, within their functions, duties, and authorities, shall lead and coordinate with the Domestic Market Department to monitor, supervise, inspect, and audit the implementation of this Circular.

6. During the implementation process, if there are difficulties or obstacles, agencies and units are requested to report to the Ministry of Industry and Trade for research, amendment, and supplementation to ensure appropriateness./.