Is animal feed containing Formic Acid precursors "helpless" in management?

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Can Tho Customs officers inspect import and export goods. Photo: Ong Van Hien

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Recently, some businesses importing animal feed containing Formic Acid precursors have encountered many difficulties. The Customs department is also in a difficult situation when the policy is not clear.

The General Department of Customs said that many businesses import raw materials used in animal feed and aquatic feed containing Formic Acid in the List of IVB precursors issued with Decree 57/2022/ND-CP regulating List of narcotics and precursors. In Decree 57/2022/ND-CP, the agency assigned to manage it is the Ministry of Industry and Trade.

The Ministry of Finance has issued an official dispatch requesting the Ministry of Industry and Trade to comment on whether animal feed containing precursors is subject to a license to import precursors according to the provisions of the Law on Drug Prevention and Control.

Responding to this issue, the Ministry of Industry and Trade said that the regulations on dossiers, order and procedures for granting licenses to import precursor chemicals in Decree 113/2017/ND-CP are amended and supplemented in Clause 6, Article 1 Decree 82/2022/ND-CP that does not apply to animal feed (regardless of whether or not it contains precursors), therefore the Ministry of Industry and Trade does not have enough legal basis to carry out import licensing procedures for with animal feed containing precursors.

Regarding the subject of management of imported precursor chemicals, Point c, Clause 1, Article 12 of the Law on Drug Prevention and Control stipulates that legal activities related to drugs are activities permitted by competent state management agencies, in which the activities of "import, export, temporary import, re-export, re-import, transit of narcotics, precursors, narcotic drugs, psychotropic drugs, etc"; Article 17 of the Law on Drug Prevention and Control stipulates that the activities of "import, export, temporary export, re-import of narcotics and precursors" must be permitted by a competent authority. In addition, point a, clause 3 of Article 3 Decree No. 105/2021/ND-CP detailing and guiding the implementation of a number of Articles of the Law on Drug Prevention and Control stipulates: legal activities related to drugs as prescribed in Clause 1, Article 12 of the Law on Drug Prevention and Control must be strictly controlled according to each industry, field, and locality and must be controlled to the final product.

The General Department of Customs said that according to the above regulations, import activities of precursor chemicals must be controlled from raw materials to final products.

There needs to be a clear distinction soon

To solve problems, the General Department of Customs recently proposed to the Ministry of Public Security to remove current shortcomings.

Citing regulations on precursor management agencies under the Law on Drug Prevention and Control, the General Department of Customs said, based on Article 19 of Decree No. 105/2021/ND-CP detailing and guiding the implementation of the Law on Drug prevention and control stipulates: The Ministry of Public Security allows agencies and organizations to conduct the following activities: import and export of narcotics and precursors in the List of narcotics and precursors approved by the Government (except for narcotics and precursors that are medicinal ingredients that require special control permitted by the Ministry of Health and industrial precursors managed and permitted by the Ministry of Industry and Trade).

The Ministry of Industry and Trade allows agencies, organizations and individuals to conduct the following activities: import and export of precursors specified in the List of precursors prescribed by the Government (except for precursors regulated by the Ministry of Public Security and the Ministry of Health). The Ministry of Agriculture and Rural Development allows agencies and organizations to conduct the following activities: import and export of veterinary drugs containing narcotics and precursors; Importing narcotics and precursors used as raw materials for veterinary drug production are narcotics and precursors on the List of narcotics and precursors prescribed by the Government.

Thus, the Government has specified and detailed the fields that the four relevant Ministries (Ministry of Public Security, Ministry of Industry and Trade, Ministry of Agriculture and Rural Development, Ministry of Health) will license. Accordingly, the precursors issued by the Ministry of Agriculture and Rural Development and the Ministry of Health are clear. However, precursors managed by the Ministry of Industry and Trade will exclude precursors in general managed by the Ministry of Public Security, precursors managed by the Ministry of Public Security will exclude industrial precursors managed by the Ministry of Industry and Trade.

According to the above assignment, during the implementation process, the Customs agency encountered difficulties in determining which precursor mixture must be approved by the licensing agency when imported.

According to the List of narcotics and precursors specified in Decree No. 57/2022/ND-CP, in which "Formic acid" belongs to the List of precursors specified in List IV issued with this Decree.

The list of industrial precursors managed and permitted by the Ministry of Industry and Trade is specifically stipulated in Decree No. 113/2017/ND-CP detailing and guiding the implementation of a number of articles of the amended Law on Chemicals, supplemented in Decree No. 82/2022/ND-CP, in which "Formic Acid" belongs to Group 2 industrial precursor.

According to the provisions of Point b, Clause 1, Article 13 of Decree No. 113/2017/ND-CP amended and supplemented in Decree No. 82/2022/ND-CP, only "Mixtures containing industrial precursors of group 2 can content less than 5% by volume" will be exempted from granting export and import licenses. Thus, mixtures containing group 2 industrial precursors with a content of >=5% by weight are subject to licensing from the Ministry of Industry and Trade.

However, according to the provisions of Clause 11, Article 1 of Decree No. 113/2017/ND-CP amended and supplemented in Decree No. 82/2022/ND-CP, "animal feed" products are not subject to chemical substances regulated by this Decree. The Ministry of Industry and Trade also affirmed that the regulations on dossiers, order and procedures for issuing licenses to import precursor chemicals in Decree No. 113/2017/ND-CP do not apply to animal feed (regardless of whether it contains precursors or not).

The General Department of Customs said that according to the response of the Ministry of Industry and Trade (Department of Chemicals), it can be understood that mixtures and materials used in animal feed containing imported group 2 industrial precursors are not subject to " industrial precursors managed and permitted by the Ministry of Industry and Trade" stipulated in Point a, Clause 1, Article 19 of Decree No. 105/2021/ND-CP detailing and guiding the implementation of the Law on Drug Prevention and Control.

So, are animal feed products containing Formic Acid precursors subject to management according to the provisions of the Law on Drug Prevention and Control? Meanwhile, according to regulations, if animal feed containing Formic Acid precursors is subject to management under the Law on Drug Prevention and Control, it will be administered by one of three Ministries: Industry and Trade, Agriculture and Rural Development, and Public Security. In case of not being subject to the management of the Ministry of Agriculture and Rural Development (assigned to manage veterinary drugs and raw materials for veterinary drug production), and not subject to the management of the Ministry of Industry and Trade, which agency is managing and licensing the import of animal feed products containing Formic Acid precursors according to the Law on Drug Prevention and Control?

To overcome this inadequacy, the General Department of Customs recently requested the Ministry of Public Security - the focal point to help the Government implement state management of drug prevention and control - to answer questions about whether animal feed raw materials containing Formic Acid and mixtures containing precursors subject to precursor management according to the provisions of the Law on Drug Prevention and Control or not. If it is a subject of management, what conditions must be met when importing according to the provisions of the Law on Drug Prevention and Control?