Remove duplication of duties between Customs and Border Guards

Most recently, resolution 19-2017/NQ-CP of the Government also clearly pointed out to remove the regulation that the Border Guards inspecting and supervising of dossiers and import-export goods in Article 12 of Circular No. 09/2016/TT-BQP.

Some contents of Circular 09 are illegal

Problems in Circular 09/2016/TT-BQP of the Ministry of Defense detailing and guiding the implementation of a number of articles of Decree 112/2014/NĐ-CP of the Government regulating the management of The frontier border have been repeatedly claimed by Customs and business once the circular was promulgated in 2016. The Department of Legal Documents Inspection (Ministry of Justice) has also been involved to check the points of this circular.

In fact, when examining the implementation of Customs procedures at a number of border gates, the Customs authorities have recognized the overlapping of goods inspection between Border Guard and Customs forces. According to representatives of the Department of Customs Supervision and Management (General Department of Customs), the responsibility of State authorities at border gates in inspecting goods and means of transportation is quite overlapping between Customs and Border Guards. Through the inspection work at the local Customs border with Laos (such as Ha Tinh, Nghe An), the General Department of Customs found that the Border Guards intervened deeply in the management of import-export goods of the Customs authorities. Having the status of Customs dossiers which have been cleared by Customs offices for transport means and goods but when crossing border gates, enterprises shall continue carrying those Customs dossiers to Border Guards for inspection and confirmation. The reporter of Customs Newspaper has also noted the reality of this issue in Quang Tri. Due to the overlap in the responsibility of inspecting export and import goods, at some border gates, enterprises have been inspected twice, leading to delays in the clearance of export goods.

The Department of Legal Documents Inspection (the Ministry of Justice) has held meetings with relevant agencies and organizations, including the Ministry of Defense, the Ministry of Finance, the Ministry of Foreign Affairs and the Ministry of Justice to clarify the items, points that are not appropriate, and that need to be amended and supplemented in Circular 09/2016/TT-BQP. At the conclusion of the inspection in September 2016, the Department of Legal Documents Inspection has specified the illegal contents in this Circular.

Specifically, Point a and Point b, Clause 2, Article 12 of Circular No. 09/2016/TT-BQP stipulate: "The inspection and supervision of export and import goods of border-gate guards: a. For import and export goods inspection: In order to ensure goods have been completed the import and export procedures before transporting out of the border gate area, the Border Guards force re-inspects papers related to goods owners, businesses and the import-export goods in accordance with the law. b, Actually inspecting goods to ensure national security: Checking and comparing the compatibility between actual goods and goods dossiers; Focusing on detecting signs related to national security, social order and safety, smuggling and trade frauds, detecting violations of law in the export and import domains; Goods falling into the cases specified in Clause 1, Article 33 of the Customs Law shall be exempted from actual goods inspection (unless detecting signs of law violation) etc.".

According to the Department of Legal Documents Inspection, comparing the above mentioned provisions with the Customs Law (Article 12, Article 35), Decree 08/2015/NĐ-CP details the measures Implementing the Customs Law on Customs procedures, Customs inspection, supervision and control (Article 27, Article 29), Decree 112/2014/NĐ-CP of the Government on management of land border gates (Article 6, Article 22), the Customs office shall be in charge of the actual inspection of the goods (competent to determine the form and level of physical inspection of goods); The Border Guardsmen shall have to coordinate in inspecting and supervising the import and export goods and articles hrough border gates. Therefore, the provisions in Point a and Point b, Clause 2, Article 12 of Circular No. 09/2016/TT-BTC are inappropriate, causing difficulties for export and import activities of enterprises.

The Government requested revision

Most recently, in Resolution 19-2017/NQ-CP, the Government requested the Ministry of Defense to deregulate the Border Guard to inspect and supervise the dossiers and export goods in Article 12 of Circular No. 09/2016/TT-BQP, ensuring compliance with the Customs Law; at the same time, study and propose amendment of Article 9 of the Border Guard Ordinance.

According to reporters, the Ministry of Defense is currently drafting the Circular amending and supplementing some articles of Circular 09/2016/TT-BQP. Accordingly, the Ministry of Defense amended and supplemented regulations on "coordination" inspection and supervision of imports and exports of the Border Guards; the responsibility of the provincial Border Guards Command in proposing the determination of the area of auxiliary border-gates and border crossings; the order of making change of working time at auxiliary border gates and border crossings. Specifically, Points a and b, Paragraph 2 of Article 12 are amended and supplemented in the direction that the coordination work among the border guards and the border-gate specialized State management agencies to inspect and supervise import and export goods: A, Coordinate with the specialized State management agencies at border gates to check papers related to goods owners, enterprises, export and import goods in order to ensure the goods have completed import and export procedures before being transported out of the border gate area in accordance with the law. B, To coordinate with specialized management agencies at border gates in inspecting and supervising the actual compatibility between goods and goods dossiers etc.".

Commenting on the draft Circular amending and supplementing for Circular 09/2016/TT-BQP, the Ministry of Finance requested the Ministry of Defense to review the entire Circular 09/2016/TT-BQP to abolish the related regulations to the inspection and supervision of import and export goods of the Border Guards since they are not under the Border Guard's tasks. In order to ensure transparency and clarity of legal normative documents, avoiding overlap in the performance of tasks between Customs offices and border guards, clearly defining responsibilities of the in charge agencies and coordinated agencies in the inspection and supervision of import and export goods, the Ministry of Defense needs to specify the direction of "Border Guards coordinate the inspection and supervision of import and export goods at the request of Customs offices."

In addition, the Ministry of Finance said that a point in Circular 09/2016/TT-BQP also needs to be amended by the Ministry of Defense, that is the regulation to proceed for the entry and exit of vehicles. Article 9 of Circular No. 09/2016/NĐ-CP stipulates the responsibilities of the Border Guards to assume the prime responsibility, and coordinate to inspect, control and supervise at the border gates and land border crossings as prescribed in Clause 1, Article 6 and Clause 5, Article 13 of Decree No. 112/2014/NĐ-CP. According to the Ministry of Finance, pursuant to Article 12 and Article 16 of the Customs Law, Customs officers shall assume the prime responsibility for carrying out procedures for entry and exit means, as provided in Clause 3, Article 9 of Circular No. 09/2016/TT-BQP is not consistent with the provisions of the Customs Law. Therefore, in order to ensure transparency and clarity of legal normative documents, avoiding overlap in the performance of tasks between Customs and the Border Guard, the Ministry of Finance proposes to amend the regulations on the procedure for entry and exit of vehicles in accordance with the Customs Law.