Thông tư 11/2010/TT-BCT

CIRCULAR

PROMULGATING THE REGULATION ON LIQUEFIED PETROLEUM GAS AGENTS

Pursuant to the Government's Decree No. 189/2007/ND-CP of December 27, 2007, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;
Pursuant to the June 14, 2005 Commercial Law;
Pursuant to the Government's Decree No.
107/2009/ND-CP of November 26, 2009, on trading of liquefied petroleum gas;
The Ministry of Industry and Trade provides for liquefied petroleum gas agents as follows:

Article 1. To promulgate together with this Circular the Regulation on liquefied petroleum gas agents.

Article 2. This Circular takes effect on May 10, 2010.

Article 3. Concerned units under the Ministry of Industry and Trade; provincial-level Industry and Trade Departments; concerned organizations and individuals and liquefied petroleum gas traders shall implement this Circular. Liquefied petroleum gas traders should promptly report any problems arising in the implementation process to the Ministry of Industry and Trade for consideration and additional guidance.

REGULATION

ON LIQUEFIED PETROLEUM GAS AGENTS
(Promulgated together with the Industry and Trade Ministry's Circular No. II/20I0/TT-BCT of March 29, 2010)

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Regulation provides for liquefied petroleum gas (LPG) agents in the Vietnamese market.

Article 2. Subjects of application

This Regulation applies to traders dealing in LPG in the Vietnamese market that satisfy all the conditions prescribed in the Government's Decree No. 107/2009/ND-CP of November 26, 2009. on LPG trading (below referred to as Decree No. 107/2009/ND-CP).

Article 3. Interpretation of terms

In this Regulation, the terms below are construed as follows:

1. LPG trading agency principal (below referred to as the principal) means an LPG wholesale trader that satisfies all the conditions prescribed in Decree No. 107/2009/ND-CP or a company, branch, factory, store or LPG-bottling station under a wholesale trader which is authorized by the wholesale trader, or a general agent that consigns LPG to agents.

2. LPG trading agent (below referred to as the agent) means an LPG trader satisfying all the conditions for acting as an agent or a general agent prescribed in Decree No. 107/2009/ND-CP that receives LPG from the principal for sale and enjoys agency remuneration.

3. LPG agency system consists of general agents, agents and trading establishments under LPG general agents and agents (below referred to as agents).

4. Commission agency means the form of agency whereby the agent sells LPG at a price set by the principal (below referred to as the consigned LPG sale price) for enjoying remuneration in the form of commission at a rate agreed upon by the two parties.

5. Factoring agency is a form of agency whereby the agent commits to sell a definite volume of LPG at a price set by the principal and enjoys the margin between the consigned LPG sale price and the LPG purchase price (below referred to as the agency prices).

Chapter II

LPG TRADING AGENCY

Article 4. Provisions on agency

1. A principal shall select and enter into agency contracts with up to 3 (three) LPG traders that fully satisfy the conditions for acting as general agents or agents.

2. An agent shall select and enter into agency contracts with up to 3 (three) LPG wholesale traders or general agents that fully satisfy the prescribed conditions.

3. Each bottled LPG store or automobile LPG-filling station under a general agent or agent may only sell bottled or bulk LPG to up to 3 (three) LPG wholesale traders and/or general agents (if LPG is consigned from general agents to agents) under agency contracts already signed with these LPG wholesale traders or general agents.

4. LPG wholesale traders and general agents, when trading in LPG (bulk or bottled LPG) in the Vietnamese market, apart from directly selling LPG to consumers (industrial production, handicraft or service households) at their own trading establishments, shall set up an agency system under this Regulation to sell LPG to consumers only in the form of agency. They shall jointly take responsibility for sale prices, quantity and quality of their LPG sold to consumers if they are partially at fault.

Article 5. Agency system

1. An agency system which consists of general agents, agents and trading establishments of general agents and agents constitutes part of the distribution system of the LPG wholesale trader or general agent.

2. An LPG wholesale trader shall organize an agency system in conformity with its business conditions and capacity in localities. In the first quarter every year. LPG wholesale traders shall register their agency systems with the Industry and Trade Departments of provinces and centrally run cities (where their agents operate), according to the forms provided in Appendices No. 1 and 2 to this Regulation (not printed herein) (including changes in agency systems) for inspecting and supervising business operations of their agency systems and trading establishments.

3. A general agent or agent shall set up its affiliated system under regulations and register this system with the LPG wholesale trader and provincial-level Industry and Trade Departments of localities (where affiliated trading establishments operate) when entering into agency contracts and during the process of acting as an agent for this trader (including changes in its affiliated system) and take responsibility for business operations of its affiliated trading establishments.

4. LPG wholesale traders shall directly organize agency systems or set up systems for LPG sale through general agents or agents in any of the following modes:

a/ They consign LPG to general agents for the latter to consign to their affiliated agents for direct sale to consumers.

b/ They supply LPG to agents for the latter to directly sell to consumers through their trading establishments.

c/ They supply LPG to general agents for the latter to directly sell to consumers through their trading establishments or to supply LPG to other agents outside the general agents' systems under agency contracts.

Article 6. Entry into LPG agency contracts

A trader that wishes to act as an LPG agent shall send a dossier to a principal for consideration and entry into an agency contract. A dossier comprises:

1. One copy of the business registration certificate certified by a competent authority, covering the registration for LPG trading;

2. A list of its LPG trading establishments which have been granted the LPG trading eligibility certificate under law.

Article 7. LPG agency contracts

1. An LPG agency contract shall be made in writing or in other forms of equivalent validity as prescribed by law. The two parties shall select and indicate in the contract the form of agency and regulations and commitments on agency commissions in conformity with the agency form.

2. Principles of entry into agency contracts: An agency contract must be agreed upon by the two parties in a voluntary and equal manner so as to assure their mutual benefits; and the two parties must commit to bear material liability and abide by this Regulation and relevant laws.

3. An agency contract must contain the following details:

a/ Names, addresses and tax identification numbers of the agent and the principal;

b/ Quantity, category and quality of LPG;

c/ The form of agency;

d/ The consigned LPG sale price;

e/ Delivery of LPG; management and recycling of LPG bottles;

f/ Commissions and agency prices:

- The commission rate and the agency price must be clearly indicated in the agency contract.

- The commission rate and the margin between the consigned LPG sale price and the agency price must be reasonable, ensuring equality and non-discrimination so that agents will be able to cover expenses, earn reasonable and lawful profits and perform their obligations toward the state budget.

g/ The mothod and time limit for payment of commissions will be agreed upon and committed by involved parties in the agency contract; commission may be paid in lump-sum or installments as agreed upon by involved parties in the contract in accordance with the quantity of LPG the agent commits to sell.

h/ The term of agency;

i/ Commitments on:

- The use of mini LPG bottles (disposable);

- The elimination and recovery of LPG bottles not up to prescribed safety conditions at the agent's trading establishments.

- The assurance of safety in the process of LPG transportation;

- Other commitments as prescribed by law and this Regulation.

Article 8. LPG sale prices

1. An LPG wholesale trader may set LPG wholesale and retail prices to be applied within its LPG distribution system. These prices will be expressed in a decision or a notice sent to units within its LPG distribution system and provincial-level Industry and Trade Departments (in localities where its trading establishments operate) before these new prices are applied or upon sudden changes in prices.

2. LPG trading establishments under general agents and agents must sell LPG at the set prices, post up sale prices, sell LPG at posted prices and hang up signboards as prescribed by the LPG wholesale trader for which they act as agents.

3. Retail prices will be used as grounds for calculating agency prices and commissions for agents in the distribution system of the LPG wholesale trader.

Article 9. Responsibilities of the principal

1. To fulfill its commitments in the agency contract, ensure the lawfulness of the sources of LPG and supply sufficient LPG to its general agents and agents for continuous supply of LPG in the market.

2. To guide general agents and agents in its system in making signboards with uniform inscriptions; to supply relevant invoices and vouchers and pay commissions to agents as agreed and committed in the agency contract.

3. To inspect the observance of regulations on LPG trading and LPG agency by the agent's trading establishments; to jointly take responsibility for violations committed by the agent, if being partially at fault.

4. To receive back LPG bottles under its ownership and refund deposits for usable LPG bottles if customers no longer wish to use them.

5. To collaborate with central and local functional agencies in managing general agents and agents so as to assure the observance of law on LPG trading, ensure market stability, fight trade frauds and protect lawful interests of consumers and LPG agents.

Article 10. Responsibilities of the agent

1. To refrain from selling LPG at prices higher than the prices set by the principal; to abide by law on fire prevention and fighting, measurement, LPG quality, environment, management of LPG bottles and safety distance as prescribed by standards, technical regulations and relevant legal documents; to be subject to the inspection, supervision and guidance by the principal and competent functional agencies.

2. To show in signboards of its LPG trading establishments the heading "LPG trading agent" and its number of the business registration certificate and the name of the LPG wholesale trader for which it acts as an agent.

3. To refuse to receive bulk LPG and bottled LPG from the principal if having grounds to confirm that the principal fails to ensure the quality or volume of LPG and LPG bottles are not qualified for circulation in the market (with a written record clearly stating specific reasons and bearing signatures of representatives of the principal and the agent).

4. To fulfill commitments in the contract signed with the principal and take responsibility before law and the principal for the volume and quality of LPG it sells.

5. To update the principal with information on the LPG market and collaborate with the principal in supplying LPG to meet market demands at all times.

Chapter III

INSPECTION, AND HANDLING OF VIOLATIONS

Article 11. Responsibilities of provincial-level Industry and Trade Departments

1. To assume the prime responsibility for, and coordinate with local functional agencies in. inspecting and supervising the observance of the Government's Decree No. 107/2009/ND-CP and the Regulation on LPG trading by LPG trading establishments of LPG traders currently operating in their localities.

2. To promptly handle according to law violations committed by LPG trading establishments of principals and agents which operate in areas under their management so as to stabilize the LPG market and fight trade frauds.

Article 12. Violations of LPG agents

1. LPG traders that violate this Regulation and relevant laws shall, depending on the severity of their violations, be administratively handled or examined for penal liability according to law.

2. LPG trading establishments of the principal and the agent shall be handled if:

a/ They have no LPG trading eligibility certificate, or their LPG trading eligibility certificates have expired or are incompliant with regulations.

b/ They buy or sell LPG without agency contracts or in contravention of agency contracts or this Regulation.

c/ LPG wholesale traders and general agents (the principal) fail to set up agency systems according to regulations; fail to sufficiently supply LPG to their agents; or fail to ensure LPG circulation reserves prescribed in Article 52 of Decree No. 107/2009/ND-CP.

d/ Bottled LPG products sold at stores are unconformable with the agency contract signed with the LPG wholesale trader or general agent; or the volume of LPG contained in bottles is insufficient or not up to LPG quality already committed in the agency contract.

e/They fail to hang signboards at LPG selling places; fail to post up prices at LPG selling places; sell LPG at prices different from the posted up prices or post prices higher than the sale prices set by the principal.

f/They fail to comply with regulations on fire prevention and fight, environmental safety, measurement and safety; or fail to comply with regulations on management of LPG bottles and bottled LPG

g/ They counterfeit marks or labels of LPG bottles or commit other fraudulent acts to win customers.-