Import scrap management: It is legal enough but still open, isn’t it?

Scrap at Cat Lai port (HCMC). Picture: Thu Hoa.

Legal basis is available...

In order to import scraps of legal waste, enterprises must meet all environmental and customs laws. It means that the customs office carries out customs procedures besides complying with the law on customs, for scraps on the basis of environmental policies and regulations, the Ministry of Natural Resources and Environment Presiding agencies such as the Law on Environmental Protection, Decree No. 38/2015 / ND-CP on waste and waste management, Decision No. 73 / QD-TTg of the Prime Minister providing for the list of discarded materials from foreign countries as raw materials for production; Circular No. 41/2015 / TT-BTNMT of the Ministry of Natural Resources and Environment on environmental protection in scrap import as raw materials for production, Circular 43/2010 / TT-BTNMT regulating national technical standards on environment schooling ...

In addition, the system of sanctioning documents on administrative violations in the field of customs and environmental protection has been regulated in Decree No. 45/2016 / ND-CP amending and supplementing Decree 127/2013. Decree No.155/2016/ ND-CP on sanctioning of administrative violations in the field of environmental protection and Decree No. 155/2016 / ND-CP on sanctioning of administrative violations in the field of environmental protection school.

Specifically, at present in order to import scrap, enterprises must carry out procedures to be eligible for environmental protection in scrap import and related papers. In particular, scraps are only allowed to be imported to organizations and individuals for use as raw materials for production, not to be imported for commercial purposes.

Circular No. 41/2015 / TT-BTNMT of the Ministry of Natural Resources and Environment stipulate that enterprises must compile dossiers of application for "certificates of eligibility for environmental protection in scrap importation as raw materials for production". Article 10 of Circular No. 41/2015 / TT-BTNMT stipulates that scrap importers must have the following papers: "Certificate of environmental protection qualification in import of scrap as raw materials for production" issued by the Ministry of Natural Resources and Environment or the Department of Natural Resources and Environment. (Scale of volume of imported scrap under the competence of the Ministry of Natural Resources and Environment shall be: Plastic waste or paper ≥ 200 tons / year, scrap iron, steel ≥ 5000 tons / year, copper, nickel, zinc ... ≥ 50 tons / year ... The Department of Natural Resources and Environment inspects and issues certificates to enterprises who directly import small volumes of scrap); Written Notice of Scrap Import - This document is for the purpose of granting the certificate of environmental protection qualification and management quantity to not exceed the amount allowed; Confirmation of collateral for import scrap; Written certification of conformity with environmental standards for waste lots. Circular 43/2010 / TT-BTNMT of the Ministry of Natural Resources and Environment stipulates the national technical standards on the environment for 3 types of scrap: iron scrap, steel import; Scrap plastic resin; scrap paper imports.

According to these legal documents, it is possible to confirm a number of legal documents which have been regulated for waste scraps. So why are so many infringement cases related to scrap importing, and thousands of containers still in stock at some Vietnamese ports?

Explaining this issue, it is possible to mention the impact of China's implementation of its policy prohibiting the import of 24 types of scrap. Starting January 1, 2018, the trend in our country of import activities and scrap trading increased sharply with complicated developments. At the same time, the situation occurred of fraudulent objects importing garbage to Vietnam and then refusing to receive goods, causing backlogs at Vietnamese seaports to profit from overseas objects; Many consignments of scraps do not meet the conditions of environmental protection in scrap import as raw materials for production, so businesses do not go to do customs procedures, or customs clearance is not processed by the customs office leading to the extent that there is a large amount of waste left in Vietnam’s seaports.

Enterprises can take advantage of the policy to conduct fraud, which shows that the law on scrap import is not very tight.

... But there are crevices

The inadequacy of the policy is that the system of environmental legislation stipulates "Certificate of Eligibility for Environmental Protection in scrap Import as Raw Material for Production", issued for enterprises by The Ministry of Natural Resources and Environment or the Department of Natural Resources and Environment, but no regulations must be sent directly to the customs office. Therefore, enterprises can take advantage of counterfeiting, correction and erasure of contents for presentation to the Customs. The Ministry of Natural Resources and Environment has recently provided a list of 228 enterprises which have been granted the certificate of environmental protection qualification in the import of scrap materials for production from 2016 to April, 2018. However, the above list is certified by the Ministry of Natural Resources and Environment. Meanwhile, the customs office has no information from the management agency on environmental resources to compare and contrast.

The case of Duc Dat Import-Export Trading Service Co., Ltd., is an example. This company has forged all documents to prove that the company is eligible for scrap import and submit / present for customs clearance (Customs authorities have prosecuted for illegal shipment. cross-border goods of Duc Dat Import-Export Trading Service Co., Ltd., and transferred the dossier to the investigation agency).

In addition, the procedure for granting a "Certificate of Eligibility for Environmental Protection in Scrap Importation as Raw Material for Production", and “Written Notice of Scrap Waste Imported”, by the Ministry of Natural Resources and Environment / Department of Natural Resources and Environment, has not been implemented on the National Portal. This makes it difficult for the customs authorities to monitor, manage and supervise shipments of scrap materials.

In addition, as stipulated in Article 76 of the Law on Environmental Protection: "Scrap of imported materials from foreign countries into Vietnam must meet environmental technical standards and be on the list of discarded materials permitted to be imported by the Prime Minister”. However, at present, the Ministry of Natural Resources and Environment has recently promulgated national technical standards on environment for scraps of paper, plastics, iron and steel, issued together with Circular No. 43/2010 / TT-BTNMT dated 29/12/2010.

For other discarded materials in the Appendix, the list of scraps that are permitted to be imported from abroad as raw materials for production, issued together with the Prime Minister's Decision No. 73/2014 / QD-TTg dated 19/12/2014, there is no national technical regulation on environment.

At present, other commodities comply with Official Letter No. 2570 / BTNMT-TCMT dated June 25, 2015 of the Ministry of Natural Resources and Environment providing temporary guidance on description of waste in the list of imported products. As such, the inspection of other types of scrap does not have national technical regulations, so it is easy to dispute, petition, causing difficulties for customs.

How to deal with the situation of pollution?

While the policy is still fragmented, the handling of thousands of scrap shipments at Vietnamese ports also faces many difficulties. And what is the responsibility of the transport unit so that the situation of the scrap occurs?

Article 166 of The Maritime Law provides for the obligation to deliver the cargo as follows: When the ship arrives at the port of discharge, the carrier is obliged to return the cargo to the legal consignee if there is a bill of origin or other transport documents are valid for receiving goods as stipulated in Article 162 of this Code. After the goods have been paid, the remaining shipping documents are no longer valid for receiving the goods.

Article 167 provides for the handling of retained cargo as follows: "1. The consignee does not take delivery, refuse delivery or delay the receipt of cargo, the carrier shall have the right to dispose of the cargo and deposit it in a safe place and inform the shipper. All costs and losses incurred by the consignee shall be borne by the consignee.

4. Within 60 days from the date of arrival of the ship to the port of delivery of the cargo, if there is no consignee of the consignment or the consignee fails to pay all debts or fails to provide the necessary guarantee, the carrier shall have the right to auction the goods for debt cancellation; If the goods are perishable or the shipment is too costly compared to the actual value of the goods, the carrier shall be entitled to sell prior to the auction.”

If the goods are imported within 90 days from the date of arrival at the border but there are no recipients, the customs offices will handle them according to the measures prescribed in Clause 3, Article 58 of the Customs Law. The customs office will make public announcement on the mass media. Past 60 days from the date of notification, if goods owners fail to collect, they will be handled according to Clause 6, Article 58 of the Customs Law. "Notably, for non-polluting goods, it does not handle the same as for goods left in stock, which is the establishment of the State ownership and transfer, destruction and direct sale, the owner of the means of transport, the operator of the means of transport or the person authorized by the owner of the transport means are forced to re-export it from the Vietnamese territory in accordance with the provisions of Point b, Clause 6, Article 58 of the Customs Law.” Mr Nguyen Tuan, acting director of the Department of Customs Supervision and Management, General Department of Customs said. This content is clearly defined in Point c, Clause 2, Article 14 of Circular 203/2014 / TT-BTC guiding the handling of goods left in the areas of customs operation. Specifically: "Particularly for goods causing environmental pollution, goods owners, transport means owners, transport means operators or persons authorized by means owners shall have to transport such goods from the Vietnamese territory”.

Talking to the reporter of the Customs Newspaper on this issue, Mr. Trinh The Cuong, Head of Marine Transport Service (Vietnam Maritime Bureau), said that, “For the handling of the container remains and the identified scrap are goods causing environmental pollution, in the Circular 203/2014 / TT-BTC guiding the handling of goods left in the customs area and Clause 6, Article 58 of the Customs Law also clearly states: For goods causing environmental pollution, the owners of means of transport, the operators of transport means or the persons authorized by the transport means will have to transport such goods out of the Vietnamese territory. If the owner of the means of transport, the operator of the means of transport or the person authorized by the owner of the means of transport cannot be identified, the customs office will assume the prime responsibility and coordinate with the enterprise dealing in port, local authorities and relevant agencies to destroy."

Circular 203/2014 / TT-BTC will be applied to handle goods in general in the area of customs operation, because the goods are not qualified in the process of transportation of goods. The carrier does not know where to move to, causing backlog at the port. In the case of discarded scrap materials, Circular 203/2014 / TT-BTC are appropriate.

In the absence of a separate guiding document for waste materials, the regulators still have to apply the procedures in accordance with Circular 203/2014 / TT- BTC. At the same time, in order not to become a landfill for the world without the cost of destruction, the relevant authorities should urgently develop management solutions to ensure the management and supervision of imported scraps.

For customs agencies, in order to actively prevent possible environmental risks, the General Department of Customs issued Official Letter 4202 / TCHQ-PC dated 17/7/2018 directing the local customs office measures to tighten import scraps, including remedial measures when goods are still on board, unloaded goods to ports for waste and scrap not meeting the conditions and standards of the environment into the territory are to carried out on the basis of review and analysis of goods information declared on the manifest before arrival.

Specifically, to inform shipping lines, port companies of not allowing discharge to ports for goods with information on the manifest that are waste, at the same time, to request the shipping company to transport the goods out of the Vietnamese territory and handle them according to regulations.

For goods which are scrap and the consignee stated on the manifests is not on the list of enterprises which have been granted the certificate by the Ministry of Natural Resources and Environment / Department of Natural Resources and Environment. On the protection of the environment in the import of scrap materials as raw materials for production, the shipping companies shall not be permitted to dispose of their shipments to port; at the same time, request the shipping company to transport this cargo out of the Vietnamese territory.

In cases where cargoes on the ship have information declared on the manifests as used goods, and they are not declared as waste but are considered as characteristics of waste, and the importers are not included in the list of enterprises who have been granted certificates of eligibility for environmental protection in the import of discarded materials as raw materials for production, the cargoes will be included in the control and control of the key.

For cases in which import scraps have registered their customs declaration forms, the customs offices shall take 100% of the import goods samples and inspect them in order to assess the observance of the customs legislation and environmental protection law. For discarded materials on the list of discarded materials that are permitted to import from foreign countries as raw materials for production, issued together with the Prime Minister's Decision No. 73/2014 / QD-TTg of December 19, 2014, if there is a national technical regulation on the environment, the customs office will determine that there are insufficient grounds for considering the customs clearance.

For goods which are stagnant in ports, the customs offices will review, classify and handle them according to the provisions of law. In cases where the goods are imported within 90 days from the date of arrival at the border gates but nobody arrives, they will be handled according to the provisions of Clauses 3 and 6, Article 58 of the Customs Law, specifically for goods polluting the environment, the owner of the means of transport, the transport operator or the person authorized by the owner of the means of transport must transport that cargo out of the Vietnamese territory.