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Circular No. 02/2011/TT-BCT dated January 28, 2011 of the Ministry of Industry and Trade guiding the Government's Decree No. 119/2007/ND-CP of July 18, 2007, on tobacco production and trade
28/04/2011
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THE MINISTRY OF INDUSTRY AND TRADE

 

Circular No. 02/2011/TT-BCT of January 28, 2011, guiding the Government's Decree No. 119/2007/ ND-CP of July 18, 2007, on tobacco production and trade

 

Pursuant to the Government's Decree No. 189/20O7/ND-CP of December 27, 2007, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

 

Pursuant to the Government's Resolution No. 59/NQ-CP of December 17, 2010, on the simplification of administrative procedures under the management of the Ministry of Industry and Trade;

 

Pursuant to the Government's Decree No. 119/2007/ND-CP of July 18, 2007, on tobacco production and trade;

 

The Minister of Industry and Trade guides the Government's Decree No. 119/2007/ND-CP of July 18, 2007,on tobacco production and trade as follows:

 

Chapter I

 

GENERAL PROVISIONS

 

Article 1. Scope of regulation

 

1. This Circular guides conditions for trading and processing of tobacco raw materials; conditions for manufacture of tobacco products; conditions for import of specialized tobacco machinery and equipment, tobacco raw materials and cigarette paper; management of investment in and use of specialized tobacco machinery and equipment, tobacco production capacity and tobacco product output; conditions for trading in tobacco products; competence, procedures and order of grant of tobacco product trading and processing eligibility certificates and tobacco product manufacture and trading licenses prescribed in the Government's Decree No. 119/2007/ND-CP of July 18, 2007, on tobacco production and trade. 2. This Circular does not apply to the import of tobacco products as well as the trade of tobacco products at duty free shops.

 

Article 2. Subjects of application

 

This Circular applies to domestic and foreign organizations and individuals engaged in the manufacture and trading of tobacco products and other activities related to the manufacture and trading of tobacco products in the Vietnamese territory.

 

 

 

 

Article 3. Interpretation of terms

 

In this Circular, the terms below are construed as follows: 1. "Tobacco product-supplying enterprises" are corporations and enterprises which manufacture tobacco products and enterprises which import tobacco products under Decree No. 119/2007/ND-CP. 2. "Copy" referred to in this Circular is made in any of the following forms:

 

a/ Certified copy (for cases of submitting dossiers by post or via the administrative paper-delivering channel);

 

b/ Copy enclosed with its original for comparison (for cases of directly submitting dossiers);

 

c/ Copy scanned from its original (in case of submitting electronic files as allowed by administrative procedures).

 

Chapter II

 

TRADING IN TOBACCO RAW MATERIALS

 

Article 4. Conditions for the grant of tobacco raw material trading eligibility certificates

 

1. Conditions on business entities

 

Being traders having a business registration certificate covering tobacco raw material trading.

 

2. Conditions on physical foundations, technical equipment and facilities and employees

 

a/ Having a raw material trading facility with a sorting and packaging section and raw material warehouse(s) suitable to their business scope, with a total area of at least 500 m2;

 

b/ Having separate warehouses for tobacco raw materials. These warehouses must be furnished with a ventilation system and equipment and facilities for the preservation of tobacco raw materials, including: thermometers and hygrometers for checking air temperature and relative humidity in the warehouses; devices for worm, termite and borer extermination; and sufficient racks and shelves for storing tobacco bales which are placed at least 20 cm above the floor and at least 50 cm from the walk or column;

 

c/ Having signed contracts with employees who have professional qualifications and experience in investment management, technical assistance or raw material purchase.

 

3. Conditions on business processes suitable to tobacco raw material purchase and sale

 

a/ Places of tobacco raw material purchase must have signboards showing trade names of tobacco raw material traders;

 

b/ Standards for grading tobacco raw materials must be publicly posted up at places of tobacco raw material purchase according to current regulations, together with sample raw material tobacco leaves;

 

c/ Traders must have signed tobacco growth investment contracts with tobacco owners in conformity with their business scope 4. Conditions on environmental protection and fire and explosion prevention and fighting

 

Having sufficient equipment and facilities for fire prevention and fighting and assurance of safety and environmental sanitation in accordance with law.

 

Article 5. Competence to grant tobacco raw material trading eligibility certificates

 

Industry and Trade Departments of provinces and centrally run cities (below referred to as provincial-level Industry and Trade Departments) are competent to grant tobacco raw material trading eligibility certificates to enterprises based in their localities.

 

Article 6. Dossiers of application for tobacco raw material trading eligibility certificates

 

A dossier of application for a tobacco raw material trading eligibility certificate comprises:

 

1. An application for a tobacco raw material trading eligibility certificate (made according to the form provided in Appendix 2 to this Circulars - not printed herein).

 

2. A copy of the business registration certificate

 

3. A list of warehouses, workshops, offices and other auxiliary works; their plans and areas.

 

4. A list of equipment and facilities: the ventilation system; fire prevention and fighting equipment hygrometers and thermometers, devices for worm,

termite and   borer extermination and racks or shelves for storing tobacco bales.

 

5. A list of employees engaged in investment management, technical assistance and raw material purchase, copies of their labor contracts and certificates of training in tobacco growing techniques.

 

6. Copies of tobacco growth investment contracts, signed with tobacco growers.

 

Article 7. Order of grant of tobacco raw material trading eligibility certificates

 

1. Within 10 days after receiving a complete and valid dossier, the provincial-level Industry and Trade Department shall consider and grant a tobacco raw material trading eligibility certificate (made according to the form provided in Appendix 3 to this Circular - not printed herein). In case of refusal, it shall reply in writing, clearly stating the reason. 2. For incomplete or invalid dossiers, the provincial-level Industry and Trade Department shall, within 5 days after receiving these dossiers, request in writing their supplementation.

 

3. Issuance and preservation of tobacco raw material trading eligibility certificates.

 

A tobacco raw material trading eligibility certificate shall be issued in four copies: Two copies shall be kept at the provincial-level Industry and Trade Department, one sent to the Ministry of Industry and Trade and another sent to the applicant.

 

Chapter III

 

PROCESSING OF TOBACCO RAW MATERIALS

 

Article 8. Conditions for the grant of tobacco raw material processing eligibility certificates

 

1. Conditions on business entities

 

a/ Being an enterprise lawfully established and having a business registration certificate covering tobacco raw material processing; b/ Possessing a tobacco raw material trading eligibility certificate. 2. Conditions on material foundations, technical equipment and facilities and employees

 

a/ Having a raw material processing facility with sorting, processing and packaging sections and raw material warehouse(s) suitable to their business scope, with a total area of at least 5.000

 

b/ Having separate warehouses for unprocessed and processed tobacco raw materials which are suitable to their business scope. These warehouses must be furnished with ventilation systems, thermometers and hygrometers for checking air temperature and relative humidity in the warehouses; devices tot-worm, termite and borer extermination; sufficient racks or shelves for storing tobacco bales which are placed at least 20 cm above the floor and at least 50 cm from the wall or column;

 

c/ Having complete specialized machinery and equipment for stemming tobacco leaves or processing tobacco leaves into tobacco shreds or flakes and other substitutes for manufacturing tobacco products. Raw material processing chains must be specialized and ensure industrial sanitation, labor safety and environmental sanitation standards;

 

d/ Having equipment and facilities for measuring and checking the quality of raw materials before and after they are processed;

 

e/ All machinery and equipment must be of lawful origin; f/ Having signed contracts with employees who possess professional qualifications in mechanical engineering, technology or food chemistry. 3. Conditions on quality, hygiene and safety of tobacco products Having satisfied quality and hygiene requirements prescribed in Vietnam standards, in-house standards and current regulations on food quality, hygiene and safety.

 

4. Conditions on environmental protection and fire and explosion prevention and fighting

 

Having sufficient devices and equipment for fire prevention and fighting and assurance of safety and environmental sanitation in accordance with law.

 

5. Conditions on business processes suitable to business lines a/ Places of tobacco raw material purchase must have signboards showing trade names of enterprises trading in or processing tobacco raw materials; b/ Standards for grading tobacco raw materials must be publicly posted up at places of tobacco raw material purchase according to current regulations, together with sample raw material tobacco leaves;

 

c/ Tobacco raw material processing traders must sign tobacco growth investment contracts with tobacco growers and contracts on the purchase of tobacco raw materials from tobacco raw material traders in conformity with their business scope.

 

6. Conditions on locations of   processing facilities

 

Processing facilities must be located in line with the strategy and master plan of Ate tobacco industry and plans on development^' tobacco raw material zones approved by competent authorities.

 

Article 9. Competence to grant tobacco raw material processing eligibility certificates

 

The Ministry of Industry and Trade is competent to grant tobacco raw material processing eligibility certificates.

 

 

Article 10. Dossiers of application for tobacco raw material processing eligibility certificates

 

A dossier of application for a tobacco raw material processing eligibility certificate comprise

 

1. An application for a tobacco raw material processing eligibility certificate (made according the form provided in Appendix 4 to this Circular - not printed herein);

 

2. A copy of the business registration certificate

 

3. A list of workshops; sorting, processing and packing sections; warehouses, offices and other auxiliary works, and their areas and plans; 4. A list of complete specialized machinery and equipment for processing tobacco raw material devices for checking the quality of raw materials before and after they are processing, the ventilation system, fire prevention and fighting equipment, hygrometers and thermometers, devices for worm, termite and borer extermination and racks or shelves for storing tobacco bales;

 

5. Documents evidencing the lawful origin of machinery and equipment.

6. A list of employees;

 

7. Copies of labor contracts signed with employees engaged in investment management, technical assistance and raw material purchase, enclosed with their certificates of training in tobacco growing techniques; 8. Copies of labor contracts signed with employees engaged in tobacco raw material processing, enclosed with their certificates of training in mechanical engineering, technology or food chemistry; 9. Copies of tobacco growth investment contracts, signed with tobacco growers, and tobacco raw material sale and purchase contracts, signed with tobacco raw material traders;

 

10. Copies of certificates of standards applicable to products, issued by competent agencies, copies of announcements of standards applicable to their products, enclosed with in-house standards already announced under current regulations of the Ministry of Health.

 

Article 11. Order of grant of tobacco raw material processing eligibility certificates

 

1. Within 20 days after receiving a complete and valid dossier, the Ministry of Industry and Trade shall consider and grant a tobacco raw material processing eligibility certificate (made according to the form provided in Appendix 5 to this Circular - not printed herein). In case of refusal, it shall reply in writing, clearly stating the reason;

 

2. For incomplete or invalid dossiers, the Ministry of Industry and Trade shall, within 7 days after receiving these dossiers, request in writing their supplementation.

 

3. Issuance and preservation of tobacco raw material processing eligibility certificates

 

A tobacco raw material processing eligibility certificate shall be issued in four copies: Two copies shall be kept at the Ministry of Industry and Trade, one sent to the applying enterprise and another sent to the provincial-level Industry and Trade Department of the locality where the enterprise is based.

 

Chapter IV

 

MANUFACTURE OF TOBACCO PRODUCTS

 

Article 12. Conditions on the grant of tobacco product manufacturing licenses

 

1. Conditions on business entities

 

Being enterprises lawfully established and manufacturing tobacco products before the issuance of the Government's Resolution No. 12/2000/NQ-CP of August 14, 2000, on the national policy for prevention and combat of tobacco harms during 2000-2010.

 

2. Conditions on investment in and use of home-grown tobacco raw materials

 

a/ Enterprises shall invest in tobacco growing in the form of direct investment or investment through joint venture with tobacco raw material traders that make direct investment in tobacco growing in conformity with their production and business scope and the approved plan on development of tobacco material zones;

 

b/ Enterprises shall use home-grown tobacco raw materials for manufacturing tobacco products under the Ministry of Industry and Trade's annual plans, except for manufacturing tobacco products with foreign brands or for export. These plans shall be made in line with the strategy and master plan of Vietnam's tobacco industry and approved plans on development of tobacco raw material zones.

 

3. Conditions on machinery and equipment

 

a/ Enterprises manufacturing tobacco products must have specialized machinery and equipment for the principal stages of cigarette rolling and packaging;

 

b/ At the stages of rolling and packaging cigarettes in packs or cartons, enterprises shall use automatic rolling and packaging machines, except for tobacco products produced by traditional manual methods; c/ Enterprises must have devices for measuring and checking quality criteria such as cigarette weight, circumference and decompression. Enterprises may themselves check or hire qualified service providers to check other physical and chemical norms and tobacco hygiene standards. Checking results must be systematically preserved for long-term monitoring;

 

d/ All machinery and equipment used for manufacturing tobacco products must be of lawful origin.

 

4. Condition on quality, hygiene and safety of tobacco products Enterprises must satisfy quality and4rygiene requirements as specified by Vietnam standards, in-house standards and the Ministry of Health’s regulations on hygiene and safety of tobacco products. 5. Condition on ownership of trademarks

 

Enterprises must have the right to own or lawfully use trademarks registered and protected in Vietnam.

 

6. Condition on environment and fire and explosion prevention and fighting

 

Enterprises must have sufficient devices and equipment for fire prevention and fighting and assurance of safety and environment sanitation in accordance with law.

 

Article 13. Competence to grant tobacco product manufacturing licenses The Ministry of Industry and Trade is competent to grant tobacco product manufacturing licenses.

 

Article 14. Dossiers of application for tobacco product manufacturing licenses

 

A dossier of application for a tobacco product manufacturing license comprises:

 

1. An application for a tobacco product manufacturing license (made according to the form provided in Appendix 6 to this Circular -not printed herein).

 

2. A copy of the business registration certificate

 

3. A report on the enterprise's business performance over the last 3 years, clearly stating the production output target (converted output) for each

group of tobacco products.

 

4. A list of machinery and equipment, stating the cigarette production capacity and each stage's Rapacity calculated in packs of 20 cigarettes and

 

 

 

 

3 shifts per day over the last 3 years. Documents evidencing the lawful origin of machinery and equipment.

 

5. Tobacco shred processing contracts and quality inspection service contracts (if any).

 

6. A list of warehouses, workshops, offices and other auxiliary works and their areas and plans,

 

7. Copies of certificates of standards applicable to products, issued by competent agencies, copies of announcements of standards applicable products, enclosed with in-house standards already announced under current regulation of the Ministry of Health.

 

8. Copies of papers certifying the lawful ownership or use right to trademarks of tobacco products.

 

9. Copies of documents evidencing investments in the development of tobacco raw material zones.

 

Article 15. Procedures for the grant of tobacco product manufacturing licenses

 

1. Within 20 days after receiving a complete and valid dossier, the Ministry of Industry and Trade shall consider and grant a tobacco product manufacturing license (made according to the form provided in Appendix 7 to this Circular -not printed herein). In case of refusal, it shall reply in writing, clearly stating the reason.

 

2. For incomplete or invalid dossiers, the Ministry of Industry and Trade shall, within 7 days after receiving these dossiers, request in writing their supplementation.

 

3. Issuance and preservation of tobacco product manufacturing licenses A tobacco product manufacturing license shall be issued in 4 copies: 2 copies shall he kept at the Ministry of Industry and Trade, one sent to the applying enterprise, and another sent to the provincial-level Industry and Trade Department of the locality where the enterprise is based.

 

Chapter V

 

INVESTMENT IN THE MANUFACTURE OF TOBACCO PRODUCTS

 

 

Article 16. Capacity of tobacco product manufacture

 

1. Total production capacity means the production capacity of a complete chain for tobacco product manufacture (with principal machinery and equipment for cigarette rolling and packaging) calculated for 3 shifts per day by the time of issuance of the Government's Resolution No. 12/2000/NQ-CP of August 14, 2000, on the national policy on prevention and combat of tobacco harms during 2000-2010.

 

 

 

 

2. The Ministry of Industry and Trade shall announce the total production capacity of each enterprise, which shall serve as a basis for investment in the manufacture of tobacco products and import of specialized tobacco

machinery and equipment.

 

3. Enterprises may make investment to increase their production capacity only if they produce cigarettes for export and shall produce cigarettes for domestic consumption within their determined and announced total production capacity. Annually, enterprises shall send reports on investment in their cigarette production capacity to the Ministry of Industry and Trade. Article 17. Investment in the manufacture of tobacco products for export, export processing, and intensive investment, renewal of equipment and technologies, and relocation of places of manufacture as planned 1. Investors shall send their investment reports and written requests to the Ministry of Industry and Trade for investment approval Within 15 days after receiving enterprises' written requests, the Ministry of Industry and Trade shall reply in writing. In case of refusal, it shall clearly state the reason.

 

2. A written request must state the name and location of the project, relevant principal technical parameters, production scale and output and plan on disposal of to-be-replaced machinery and equipment (in case of replacement investment).

 

3. After obtaining the written approval of the Ministry of Industry and Trade, enterprises shall make investment according to the order and

procedures for investment and capital construction specified by law. 4. Enterprises shall report to the Ministry of Industry and Trade on the disposal of specialized tobacco machinery and equipment which are replaced in the course of investment.

 

Article 18. Foreign investment in the manufacture of tobacco products 1. Foreign enterprises are only permitted to invest in the manufacture of tobacco products through joint venture or cooperation with domestic enterprises which possess tobacco product manufacturing licenses and within their licensed production capacity and with the State holding a dominant share in the enterprises’ charter capital.

 

2. Foreign investment in the form of joint venture to manufacture tobacco products

 

a/ Joint-venture parties shall send a dossier of the project on the establishment of the joint venture and the joint-venture contract, enclosed with a written request to the Ministry of Industry and Trade. Within 30 days after receiving a complete dossier and the written request of the enterprises, the Ministry of Industry and Trade shall submit them to the Prime Minister for consideration and decision. In case of refusal, it shall reply in writing, clearly stating the reason;

 

b/ A written request must state the name and location of the project, relevant principal technical parameters, operation scope and objectives, production scale and output of each kind of tobacco products, plan on investment in machinery and equipment and disposal of to-be replaced machinery and equipment;

 

c/ Only after obtaining the written approval of the Prime Minister, can joint-venture parties make registration for joint venture establishment according to current investment regulations.

 

3. Foreign investment in the form of industrial property licensing contracts a/ Involved parties shall send the whole dossier of the industrial property licensing contract enclosed with a written request to the Ministry of Industry and Trade. Within 30 days after receiving a complete dossier and the written request of the enterprise, the Ministry of Industry and Trade shall submit them to the Prime, Minister for consideration and decision. In case of refusal, it shall reply the enterprises in writing, clearly stating the reason;

 

b/ A written request must state principal contents of the industrial property licensing contract; production scale and output of each kind of tobacco products, and plan on investment in machinery and equipment and disposal of to-be replaced machinery and equipment (if any);

 

c/ Only after obtaining the written approval of the Prime Minister, can the involved parties perform   the industrial property licensing contract; d/Enterprises currently manufacturing tobacco products under industrial property licensing contracts with foreign parties shall send alt-dossiers and written requests as specified at Points a and b of this Clause to the Ministry of Industry and Trade for consideration and determination of the production scale and output of each kind of tobacco products. 4. When making intensive investment, enterprises shall report to the Ministry of Industry and Trade on the disposal of specialized tobacco machinery and equipment which are no longer used or are liquidated, and take full responsibility for the disposal.

 

Article 19. Tobacco product output

 

1. Enterprises may not manufacture tobacco products in excess of the capacity stated in their tobacco product manufacturing licenses.

 

2. Enterprises manufacturing tobacco products bearing foreign brands may not manufacture them in excess of the permitted output.

 

3. Annually, enterprises shall send statistical reports on the output of each kind of tobacco products to the Ministry of Industry and Trade.

Chapter VI

 

IMPORT OF SPECIALIZED TOBACCO MACHINERY AND EQUIPMENT. TOBACCO RAW MATERIALS AND CIGARETTE PAPER

 

Article 20. Management of the import of specialized tobacco machinery and equipment and spare parts, tobacco raw materials and cigarette paper 1. Imported specialized tobacco machinery and equipment and spare parts, tobacco raw materials and cigarette paper are subject to the line management of the Ministry of Industry and Trade.

 

2. Licensed tobacco groups and corporations which are parent companies shall receive and distribute tobacco raw materials and cigarette paper to their member units which possess tobacco product manufacturing licenses based on their import quotas.

 

Article 21. Import of specialized tobacco machinery and equipment and their spare parts

 

1. Enterprises which possess tobacco product manufacturing licenses and tobacco raw material processing eligibility certificates may import specialized tobacco machinery and equipment suitable to their production capacity.

 

2. Dossiers of and procedures for the import of specialized tobacco machinery and equipment

 

a/ The investor shall send a project dossier, comprising a copy of the investment project already approved by a competent authority, a copy of the Ministry of Industry and Trade's written approval of the investment, if any, and a written request for import of machinery and equipment, to the Ministry of Industry and Trade;

 

b/ Within 7 days after receiving the enterprise's complete dossier, the Ministry of Industry and Trade shall approve or disapprove in writing the enterprise's import of machinery and equipment.

 

Article 22. Import of tobacco raw materials and cigarette paper for the manufacture of tobacco products for domestic consumption 1. Enterprises possessing tobacco product-manufacturing licenses may import tobacco raw materials and cigarette paper for manufacturing

tobacco products.

 

 

 

 

2. Enterprises possessing tobacco raw material processing eligibility certificates may import tobacco raw materials for processing tobacco shreds for plants which have tobacco product-manufacturing licenses under contracts or written agreements.

 

3. By November 10 at the latest every year, tobacco product-manufacturing enterprises and tobacco shred-processing enterprises shall send to the Ministry of Industry and Trade reports on their needs for import of tobacco raw materials and cigarette paper for the manufacture of tobacco products for domestic consumption and the processing of tobacco shreds in the following year.

 

Reports must clearly state their production and business situation, production output and the import of tobacco raw materials and cigarette paper in the reporting year and the estimated production output and needs for tobacco raw materials and cigarette paper in the following year. 4. For tobacco raw materials imported within import quotas, enterprises shall send applications for registration for quota-based import to the Ministry of Industry and Trade.

 

5. By December 15 at the latest every year, based on the production output and reports of tobacco product-manufacturing enterprises and tobacco raw material-processing enterprises, the domestic supply of raw materials and the total import quotas for tobacco raw materials, the Ministry of Industry

and Trade shall issue written notices of import quotas unconcerned enterprises and agencies.

 

6. The total import quotas for tobacco raw materials and import quotas allocated to each enterprise shall be posted on the Ministry of Industry and Trade's website.

 

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