Thông tư 11/2016/TT-NHNN sửa đổi văn bản quy phạm pháp luật về ngoại tệ

THE STATE BANK OF VIETNAM

Circular No. 11/2016/TT-NHNN datedJune 29, 2016 of the State Bank of Vietnam on amendinga number of legislative documents onprovision offoreign currency paymentservices,and activities of foreign exchange agents and foreign exchange desks

Pursuant tothe Law No.46/2010/QH12 on the State bank of Vietnam dated June 16, 2010;

Pursuant to the Law No. 47/2010/QH12 on credit institutions dated June 16, 2010;

Pursuant to the Ordinance No.28/2005/PL-UBTVQH11 on foreign exchange dated December 13, 2005 and the Ordinance on amendments to a number of articles of the Ordinance No.06/2013/UBTVQH13 dated March 18, 2013;

Pursuant to the Government s Decree No. 156/2013/ND-CP dated November 11, 2013 defining the functions, tasks, entitlements and organizational structure of the State bank of Vietnam;

At request of the Director of the Department of Foreign Exchange Management;

The Governor of the State Bank of Vietnam (hereinafter referred to as “State bank”) hereby issues this Circular providing amendments to a number of legislative documents onprovision offoreign currency paymentservices,activities of foreign exchange agentagents andforeign exchange desks

Article 1. To amend a number of articles of the Circular No.34/2015/TT-NHNN on guidelines for the provision of foreign currency payment services dated December 31, 2015 by the Governor of the State bank of Vietnam (hereinafter referred to as “Circular No.34/2015/TT-NHNN)

1.To add the Item (vii) to point a, clause 4 of Article 7 as follows:

“(vii) Transfer money to foreign currency accounts of credit institutions licensed to act as agentsto make payment to beneficiaries in foreign currency (hereinafter referred to as “paying agent”)."

2.To amend Article 8 as follows:

“Article 8. Paying agent activities

1.Economic groupsandcredit institutions as paying agents of economic groups and credit institutions are entitled to receive foreign currency cash from permitted credit institution and authorizing economic groups.Credit institutions permitted to perform apying agents ofother economic groups and credit institutions are entitled to receive foreign currencyoncash or by transfer from permitted credit institutionsand authorizeingeconomic groups.

2.Paying agents shall make payment to beneficiaries oncashin foreign currencies or in Vietnam dong at the exchange rate published by the authorizing entity.

3.Advance for payment shall be made in accordance with the agency agreement signedbythe permitted credit institution, authorizing economic group and paying agent.”

3.To add Point d to clause 3 of Article 11 as follows:

“d) Besidesdocuments requestedfor the application mentionedin point a, b, c of this clause, those specified in points b, d and dd, clause 1 of this Articleshall be enclosed with.

4.To amend Clauses 2 and 3 of Article 12 as follows:

“2. In case of intheincomplete or invalid application, within 10 working daysfrom the date of receipt, the branch of the State bank of province shall send the applicant a written request for completion of their application.

Within 30 working days from the date of receipt of valid application, the Branch of the State Bank of the province may grant a written approval for direct payment (using the form 08 enclosed herewith) or a written approval forextension/adjustment/supplementtodirect payment(hereinafter refered to as “direct payment”)(using Appendix 12 enclosed herewith). In case of rejection, The Branch of the State Bank of the province shall send the applicant a written notice in which reason for rejection shall be specified.

3.Procedure for application for direct payment (or adjustments/supplements/extension)applicable toVietnam Post Corporation:

a) Vietnam Post Corporation shall submit an application to the State bank directly or by post;

b) In case of intheincomplete or invalid application, within 10 working daysfrom the date of receipt, the branch of the State bank of province shall send the Vietnam Post Corporation a written request for completion ofitsapplication.

Within 30 working days from the date of receipt of valid application, the Branch of the State Bank of the province may grant a written approvalfordirect payment (using the form 09 enclosed herewith) or a written approvalfor extension/adjustment/supplementtodirect payment (using Appendix 13 enclosed herewith). In case of rejection, The Branch of the State Bank of the province shall send the Vietnam Post Corporation a written notice in which reason for rejection shall be specified.”

5.To addPoint Article 13a to Article 13 as follows:

“Article 13a. Rules for operation of paying agents; and extension of operation durationofpaying agents

1.Every credit institution shallbe entitled toperform paying agent activities onlywhenits application for paying agent is approved in writing by the branch of the State bank of province where the credit institution is headquartered.

2.A credit institution may apply for extension when the remaining effective periodof thewritten approval for paying agent granted by the branch of State Bank within the province where the credit institution is headquartered is at least 30 days left by the date of application for extension and the credit institution does not commit any violation against reporting regime prescribed in Article 22 of this Circular for at least 04 quarters from the date of approval or latest extension.”

6.To add Point d to clause 3 of Article 14 as follows:

“d) Besidesdocuments requested for the application for extensionmetioned inin point a, b, c of this clause,documentsspecified in point b, d, clause 1 of this Articleshall be enclosed with.”

7.To amend Clauses 2 and 3 of Article 15 as follows:

“2. In case of intheincomplete or invalid application, within 10 working daysfrom the adte of receipt, the branch of the State bank of province shall send the applicant a written request for completion of their application.

Within 30 working days from the date of receipt of valid application, the Branch of the State Bank of the province may grant a written approval for direct payment (using the form 10 enclosedwith this Circular) or a written approvalfor extension/adjustment/supplementtodirect payment (using Appendix 12 enclosedwith this Circular). In case of rejection, The Branch of the State Bank of the province shall send the applicant a written notice in which reason for rejection shall be specified.

3. Procedures for approval for paying agent registration (or adjustment/supplement/extension) applicable to Vietnam Post Corporation:

a) Vietnam Post Corporation shall submit an application for approval for paying agent registration (or adjustment/supplement/extension) to the State bank directly or by post;

b) In case oftheincomplete or invalid application, within 10 working daysfrom the date of receipt, the branch of the State bank of province shall send Vietnam Post Corporation a written request for completion of their application.

Within 30 working days from the date of receipt of valid application, the State Bank may grant a written approvalfordirect payment (using the form 11 enclosed withthis Circular) or a written approvalfor extension/adjustment/supplementtoin direct payment (using Appendix 13 enclosed withthis Circular). In case of rejection, The Branch of the State Bank of the province shall send Vietnam Post Corporation a written notice in which reason for rejection shall be specified.”

8.To amend Clause 1 of Article 23 as follows:

“1. Principlesof conversion:

a) Within 12 months from the effective date of this Circular, economic organizations or credit institutions granted the paying agent registration certificate or License to operate in foreign currency payment servicesmust apply for the written approval for paying agent registration or direct payment under provisions hereof. Afteraforesaid12 months, any economic organization or credit institution that fails to obtain the aforesaid approval or fails to meets requirements in points c and Article of this clause resulting in failure to acquire the approval must ended their operation as paying agent or in direct payment services.

b) During the conversion period, economic organizations and credit institutions are entitled to continue to operate as the paying agent or operate in direct payment services under the existing paying agent registration certificate or License to operate in direct payment services.

c) Economic organizations licensed to operate in foreign currency payment serviceswillbe granted the written approval for direct payment if they satisfy all requirements for operation in direct payment stipulated by the Government;

d) Economic organizations granted the paying agent registration certificatewillbe granted the written approval for direct payment if they satisfy all requirements for paying agents

dd) Credit institutions grated the paying agent registration certificate shall be eligible forbeing grantedthe written approval for paying agent registration.

9.To amend Point b, Clause 4 of Article 23 as follows:

“b) In case oftheincomplete or invalid application, within 10 working days from the date of receipt, the branch of the State bank of province shall send the applicant a written request for completion of their application.

Within 30 working days from the date of receipt of the valid application, the branch of the State Bank of the province may grant the written approval for direct payment or paying agent registration. In case of rejection, The Branch of the State Bank of the province shall send the applicant a written notice in which reason for rejection shall be specified.”

10.To amend Point a, Clause 5 of Article 23 as follows:

“a) Within 12 months from the effective date of this Circular, Vietnam Post Corporation must go through the formality for application for written approval for direct payment under Articles 11 and 12 hereof if it satisfiesallrequirements for operation in direct paymentimposed oneconomic organizations”.

11.To amend the titlesof chapters II and III as follows:

a) Chapter II: “PROCEDURES FOR APPROVAL FOR DIRECT PAYMENT; APPROVAL FOR ADJUSTMENT,SUPPLEMENT AND EXTENSION OF PERIOD OF OPERATION OF DIRECT PAYMENT";

b) Chapter III: “PROCEDURES FOR APPROVAL FOR PAYING AGENT REGISTRATION; APPROVAL FOR ADJUSTMENT, AUPPLEMENT AND EXTENSION OF PERIOD OF OPERATION AS PAYING AGENTS";

12.To annul Articles 10, 13 and clause 2 of Article 23; to adjust and point b, clause 1, Article 20 of the Circular No.34/2015/TT-NHNN to "the List of beneficiaries and their receivables by foreign currency".

Article 2. To amend a number of articles of regulations on operation of foreign exchange agents issued together with the Decision No.21/2008/QD-NHNN dated July 11, 2008 by the Governor of the State Bank (hereinafter referred to as “ Regulation”)

1.To amend Clause 1 of Article 1 as follows:

“1.This Regulation provides adjustments to the foreign exchange operation by economic organizations as foreign exchange agents (hereinafter referred to as “foreign exchange agent”) of permitted credit institutions within the territory of Vietnam.”

2.To amend Article 2 as follows:

“Article 2. Subject of application

1.Permitted credit institutions including banks, non-bank credit institutions and branches of foreign banks licensed to operate inor provideforeign exchange servicesunder regulations of laws.

2.Economic organizations performing as foreign exchange agents of permitted credit institutions.

3.Other organizationsand individuals participating in foreign exchange services.”

3.To amend Article 4 as follows:

“Article 4. Foreign exchange agent activities

1.Foreign exchange agents are only allowed to exchange Vietnam dong for individual’s foreign currency cash but are not allowed to exchange foreign currency cash for Vietnam dong or other foreign currencies, except for casesprescribedin clause 2 of this Article.

2.Foreign exchange agentslocatedat isolated areas of international checkpoints are allowed to exchange foreign currency cash for Vietnam dong with individuals having passports granted by competent authoritiesof their countriesunder Article 8 of this Regulation.”

4.To add Article 4a to Article 4 as follows:

“Article 4a. Rules for preparation and submission of application forapproval forforeign exchange agent registration or changes in foreign exchange agents

1.The application must be made in Vietnamese. In case the application is translated from a foreign language, the applicant shall submit notarized translations orthose of whichthe translator’s signature is authenticatedunder Vietnameseregulations of laws on notarizationor those certifiedtrueby legal representative of the applicant.

2.For documents requested to be submitted in copy, the applicant shall submit certified true copies or copies certified by the applicant. In case the applicant directly submits their application at the branch of the State Bank of province and documents in the application are not certified trued, original copies shall be presentedfor callation. Person(s)collating original and copies shall countersign such copies and be liable for the accuracy of the copies."

5.To add Point Article 6a to Article 6 as follows:

“Article 6a. Adjustments required to be registered or reported

1.The following adjustments shall be registered with the branch of the State bank of province where the certificate of foreign exchange agent registration is issued:

a) Name or address of the economic organization;

b)Address of foreign exchangeagent’s office;

c) Increase in the number of foreign exchange agents.

2.Any adjustment to name oftheauthorizing credit institution,ordecrease in the number of foreign exchange agents, theeconomic organization shall be reported to the branch of the State bank of province where the foreign exchange agent registration certificate isissuedwithin 30 working days from the date of adjustment.

3.Procedures and application for adjustments shall be conformable to Article 7 and 7a of this Regulation.”

6.To amend Article 7 as follows:

“Article 7. Application for approval for foreign exchange agent registration or changes in foreign exchange agents

1.The application for approval for foreign exchange agent registration includes:

a) An application form for foreign exchange agent registration (using the form in Appendix 1 enclosed with this Regulation);

b)Economic organization’swritten commitments to complywith the Government regulations on foreign exchange agent’s office location; and a commitment to perform as theforeign exchangeagent of only one permitted credit institution.

c) Copies of documents certifying the lawful establishment and operation such as enterprise registration certificatesor investment certificatesor equivalent documents under regulations of laws.

d) Reports on facilities and equipment for foreign exchange services;

dd) Certificates of completion of training courses indistinguishing betweentrue and counterfeit foreign currencies granted to staff directly workingatforeign exchange agent s offices by the authorizing credit institution.

e) Foreign exchange procedures including measures for ensuring security during the transaction; issue of invoices, record-keeping, accounting and reporting.

g) Copies oftheagency agreement signed with the authorizing credit institution including the following contents:

(i) Name, headquarter address and contact number of both parties;

(ii) Name and address of foreign exchange agents;

(iii)Terms prescribing that the foreign exchange agent is entitled to buy foreign currency cash only (except for those located iatisolated area of international checkpoints) and re-sell such foreign exchange cash (excluding foreign currency reserves) to the authorizing credit institution;

(iv) Rules for determination of buyrateand sell rate of foreign currency cash (for foreign exchange agents located in isolated areas of international checkpoints) and re-sell rateofsuch foreign currency as it is resold to the authorizing credit institution under regulations on foreign exchange control and commission fees (if any);

(v)Rightsand obligations of both parties to the agency agreement which specifies obligationsto strict compliance with foreign exchange procedures by the foreign exchange agent and the periodic inspection of foreign exchange agent operation to ensure the agreement performance;

(vi) Negotiable foreign exchange reserves and time limit for reselling purchased foreign currencyiesto the authorizing credit institution.

2.The application for changes in foreign exchange agent includes:

a) An application form for changes in foreign exchange agents(using the form in Appendix 5 enclosed with this Regulation);

b) Relevant documents specified in clause 1, Article 6a of this Regulation;

c)A reports on facilities and equipment for foreign exchange services and economic organization’s written commitments tocomplywith the Government’sregulations on foreign exchange agent’s office location (in case of increase in the number of foreign exchange agents).”

7.To addArticle 7a to Article 7 as follows:

“Article 7a. Procedures for approval for foreign exchange agent registration and changes in foreign exchange agents

1.Every economic organization wishing to operate in foreign exchange services or change their foreign exchange agent shall submit an application to the branch of the State Bank of the province where the foreign exchange agent is located directly or by post.

2.In case of intheincomplete or invalid application, within 10 working days from the date of receipt, the branch of the State bank of the province shall send the applicant a written request for completion of their application.

Within 30 working days from the date of receipt of valid application, the Branch of the State Bank of the province may grant a Foreign exchange Agent Registration Certificate (using the form 2 enclosed with this Regulation) or a Certificate of Changes in Foreign exchange Agents(using Appendix 6 enclosed with this Regulation). In case of rejection, The Branch of the State Bank of the province shall send the applicant a written notice in which reason for rejection shall be specified.

3.In case the foreign exchange agent ‘s location is different from the place where the economic organization is headquartered, the branch of the State Bankof theprovincewhere the foreign exchange agent is situtatedshall submit a copy of the certificate to the branch of the State Bank of the province where the economic organization is headquartered.

4.Validity period of the foreign exchange agent registration certificate are as follows:

a) The validity period isupto the duration of the agency agreement signed between the economic organization and authorizing credit institution;

b) In case the agency agreement expires or is early terminated, the economic organization shall cease its operation in foreign exchange services and submit the original Foreign exchange Agent Registration Certificate to the branch of the State Bank of the province where the Certificate is issued within 30 working days from the expiry date or termination date.

c) Any economic organization wishing to continue to operating as a foreign exchange agent shall meet the Government s requirements for operation in foreign exchange services imposed on economic organizations, submit the applicationand go through proceduresstipulated in Article 7, and clauses 1 and 2 of Article 7a of this Regulation.”

8.The phrase “delegated credit organization” is now changed into “authorized credit organization”.

9.To replace and supplement appendices as follows:

a) The Appendix 1 – application form for foreign exchange agents issued together with this Regulation is replaced with Appendix 1- application form for approval for foreign exchange agent registration enclosed herewith;

b) The Appendix 2 – Certificate of changes in foreign exchange agent registration issued together with this Regulation is replaced with Appendix 2- Certificate of changes in foreign exchange agent registration enclosed herewith;

c) Appendix 5- application form for changes in foreign exchange agent and Appendix- application form for certificate of registration of changes in foreign exchange agents enclosed herewith.

10.To annul Article 3, clause 3 of Article 4, Articles 5, 6 and 13 of this Regulation.

Article 3. Transition provisions applicable to foreign exchange agents granted Foreign Exchange Registration Certificatesby the effective date of this Circular

Foreign exchange agents granted the Foreign exchangeAgentRegistration Certificate by the effective date of this Circular are entitled to continue torunforeign exchange services on the behalf of the authorizingcredit institutionunder the existing Foreign exchangeAgentRegistration Certificate, unless the agency agreement signed between the economic group and credit institution expiresoris earlyterminated by the effective date of this Circular.

Article 4. Transition provisions applicable to individuals licensed to set up foreign exchange desks by the effective date of this Circular

Individuals licensed to set up foreign exchange desks by the State bank under the Circular No.07/2001/TT-NHNN dated August 31, 2001 by the Governor of the State Bank providing guidance on management of currencies of bordering countries at checkpoints and checkpoint economic zones of Vietnam issued together with the Decision No.140/2000/QD-TTg dated December 08, 2000 by the Prime Minister by the effective date of this Circular are entitled to continue to operate in foreign exchange services.

Article 5. Implementation provisions

1.This Circular takes effect on August 13, 2016.

2.To expire the provisions after the effective date of this Circular:

a) Section 6 of the Circular No.07/2001/TT-NHNN dated August 21, 2001 by the Governor of the State Bank providing guidance on management of currencies of bordering countries at checkpoints and checkpoint economic zones of Vietnam issued together with the Decision No.140/2000/QD-TTg dated December 08, 2000 by the Prime Minister.

b) Clause 2 of Article 1 and Article 6 of the Circular No.29/2015/TT-NHNN dated December 22, 2015 providing amendments to a number of the State Bank’s legislative documents on certified true copies required.

3.Chiefs of Offices, Directors of Department of Foreign Exchange Management, heads of Affiliates of the State Bank, Directors of Branches of State Bank in provinces, President of the Board of Directors, President of Board of Members, Directors General (Directors) of credit institutions and branches of foreign banks shall be responsible for the implementation of this Circular.

For the Governor

The Deputy Governor

Nguyen Thi Hong