Circular No. 04-TT/BVNLTS guiding the implementation of Decree No. 48/CP dated August 12, 1996 of the Government on administrative penalties for violations in the field of protecting aquatic resources.

CIRCULAR

||| Guidelines for implementing Decree No. 48/CP dated August 12, 1996 of the Government on administrative penalties for violations in the field of protecting aquatic resources.

||| On August 12, 1996, the Government issued Decree No. 48/CP on administrative penalties for violations in the field of protecting aquatic resources (hereinafter referred to as Decree No. 48/CP). Pursuant to Article 14 of Decree No. 48/CP, the Ministry of Fisheries provides guidance on the following points:

_________________________________

||| I. EXPLANATION AND GUIDANCE ON CERTAIN PROVISIONS OF DECREE NO. 48/CP

||| 1. Scope of application of Decree No. 48/CP.

||| This Decree stipulates acts of administrative violations in the field of protecting aquatic resources, forms and levels of fines, and authority to impose penalties.

||| Other issues such as principles of punishment, procedures for punishment, procedures for applying preventive measures and ensuring the implementation of punishment, handling violations against persons with authority to impose administrative penalties and persons subject to administrative penalties, handling complaints and denunciations, etc., have been fully regulated in the Administrative Penalties Law dated July 6, 1995 (hereinafter referred to as the Administrative Penalties Law).

||| Therefore, when imposing administrative penalties in the field of protecting aquatic resources, those with authority to impose penalties must firmly grasp and comply with the provisions of the Administrative Penalties Law and Decree No. 48/CP.

||| 2. Persons subject to punishment:

||| Persons specified in Clause 1, Article 5 of the Administrative Penalties Law who commit administrative violations as prescribed from Article 4 to Article 10 of Decree No. 48/CP shall be punished according to the provisions of Decree No. 48/CP. Thus, organizations and individuals from foreign countries permitted by competent authorities of Vietnam to operate within the territory, exclusive economic zone, and continental shelf of Vietnam, if they commit administrative violations in the field of protecting aquatic resources, shall be punished according to the provisions of Decree No. 48/CP.

||| Acts of illegally infringing upon the territory, exclusive economic zone, and continental shelf of Vietnam to exploit marine products or to achieve other purposes of foreign organizations and individuals do not fall within the scope of regulation of Decree No. 48/CP. During inspections and controls at sea, if such acts are discovered, inspectors for protecting aquatic resources have the responsibility to record them in a report, detain persons and means of transportation to transfer them to border guards for handling according to Vietnamese laws, and simultaneously have the responsibility to cooperate with border guard agencies in handling if such acts cause harm to aquatic resources.

||| 3. Acts of administrative violations in the field of protecting aquatic resources:

||| 3.1. Acts of administrative violations concerning the protection of living environments of aquatic species (Article 4 of Decree No. 48/CP):

||| - The living environment of aquatic species includes water areas, submerged reefs, coral reefs, submerged vegetation beds, mangrove forests, and shoals which are habitats, places of residence, and breeding grounds for aquatic species.

||| - Acts of damaging submerged reefs, coral reefs, submerged vegetation beds, constructing or dismantling floating or submerged structures without permission from competent authorities that harm the habitats, residences, and breeding grounds of aquatic species, regardless of the extent or volume, are subject to punishment under Clause 1, Article 4 of Decree No. 48/CP.

||| - Acts of damaging mangrove forests are subject to punishment according to the Decree on administrative penalties in the field of protecting forests. Inspectors for protecting aquatic resources, while performing their duties, if they discover acts of damaging mangrove forests that harm the living environment of aquatic species, have the responsibility to prevent, record in a report, and transfer to forestry inspection agencies for handling.

||| - Acts causing pollution in the water areas where aquatic species live are subject to punishment under Clause 2, Article 4 of Decree No. 48/CP. The level of fine is determined based on the area of polluted water (in hectares). Criteria for assessing the degree of water pollution are based on the permissible concentration limits of certain harmful substances dissolved in water that are detrimental to shrimp, fish, and aquatic organisms, as specified in Table 1 of Circular No. 04 TS/TT dated August 30, 1990 of the Ministry of Fisheries guiding the implementation of the Ordinance dated April 25, 1989 of the State Council and Decision No. 195/HĐBT dated June 2, 1990 of the Council of Ministers on the protection and development of aquatic resources (hereinafter referred to as Circular No. 04 TS/TT).

||| 3.2. Acts of administrative violations concerning the protection of aquatic species (Article 5 of Decree No. 48/CP).

||| - Acts of exploiting, transporting, consuming, processing aquatic species smaller than the allowable size are subject to punishment under Clause 1, Article 5 of Decree No. 48/CP. The minimum allowable size for exploitation of economically important aquatic species living in natural water areas is specified in Table 9 of Circular No. 04 TS/TT.

||| According to Circular No. 04 TS/TT, for fishing activities, it allows a proportion of aquatic species smaller than the minimum allowable size not exceeding 15% of the catch of a single net haul or total catch of a fishing trip. Exceeding this allowed proportion results in punishment for the fisher.

||| In cases where transporters, consumers, or processors of aquatic species smaller than the allowable size do not have confirmation that these are part of the allowed 15% proportion mentioned above or are from aquaculture facilities, they will be punished.

||| - Acts of exploiting, transporting, consuming, or processing aquatic species during prohibited periods are subject to punishment under Clause 2, Article 5 of Decree No. 48/CP. Prohibited periods for some aquatic species are specified in Table 8 of Circular No. 04 TS/TT.

||| - Acts of exploiting, transporting, consuming, or processing aquatic species listed in the prohibited exploitation list are subject to punishment under Clause 3, Article 5 of Decree No. 48/CP. The list of prohibited aquatic species is specified in Table 7 of Circular No. 04 TS/TT.

||| 3.3. Acts of administrative violations concerning the management of fishing activities (Article 6 of Decree No. 48/CP).

||| - Acts of fishing, including harvesting seeds or eggs of aquatic species without a fishing operation permit issued by a competent authority are subject to punishment under Point a, Clause 1, Article 6 of Decree No. 48/CP.

- The act of fishing for aquatic products, including the harvesting of broodstock or eggs of aquatic species without a fishing operation permit issued by the competent authority shall be subject to punishment in accordance with Point a, Clause 1, Article 6 of Decree 48/CP.

- The act of moving fishing forces without a permit shall be punished according to point b, Clause 1, Article 6 of Decree 48/CP. According to Decision No. 682 TS/QD dated September 11, 1993 of the Minister of Fisheries on the issuance of Regulations on Fishing and Management of Marine Resources in Key Fishing Grounds (hereinafter referred to as Decision No. 682 TS/QD), moving fishing forces to key fishing grounds must have a permit. That permit must bear the raised seal of the Fisheries Resource Protection Department at the upper left corner and be issued by the Director of the Fisheries Resource Protection Branch.

- Acts of placing traps, stakes, bottom nets for fishing, cages, rafts for aquaculture not in accordance with regulations shall be punished according to point a, Clause 2, Article 6 of Decree 48/CP. The positions of placing traps, stakes, bottom nets, cages, rafts are specified by the agency issuing fishing operation permits so as to ensure navigation channels, migration routes of aquatic species, and not affect other fishing operations.

- The power of light sources (electricity, generator) mentioned in point b, Clause 2, Article 5 of Decree 48/CP is defined in Decision No. 682 TS/QD for certain fishing methods that combine light. The power of light sources is the total power of all lamps (excluding spare lamps) used for fishing on a single fishing vessel (including lamps used on the main vessel and lamps placed on small boats, floating lights, bamboo rafts). If the power exceeds the prescribed limit by 20% or more, the user will be fined and the excess lamps will be confiscated.

- Fishing tools listed in the prohibited use list under Clause 3, Article 6 of Decree 48/CP include types of tools (except vessels) used in prohibited fishing activities such as: Fishing tools using explosives; Tools creating physical or chemical agents causing paralysis or death of large numbers of aquatic species such as electric shock devices (including power source, wiring, fishing nets), chemical spraying equipment; Nets with mesh sizes smaller than prescribed. The permissible mesh sizes for certain types of fishing are specified in Table 3 of Circular 04 TS/TT.

3.4. Administrative violations related to management of fishing vessels (Article 7 of Decree 48/CP).

- Organizations and individuals constructing new fishing vessels regardless of size, whether motorized or not; Major repairs or conversions of fishing vessels changing basic parameters and functions of the vessel must obtain permission from the competent authority. New construction of vessels with overall length of 15 meters or more or engines of 20 horsepower or more must have design documentation. Violations of these provisions shall be punished according to Clause 1 of Article 7 of Decree 48/CP.

- All vessels must be registered when put into use; Vessels with overall length of 15 meters or more or engines of 20 horsepower or more must undergo inspection; Operators of vessels with engines of 12 horsepower or more must hold a license; Crew members on fishing vessels must have identification papers and professional certificates. Violations of these provisions shall be punished according to Clauses 2 and 3 of Article 7 of Decree 48/CP.

- Regulations on construction, repair, registration, inspection, and operation of fishing vessels are stipulated in the following documents:

+ Decision No. 407 TS/QD dated December 7, 1991 of the Minister of Fisheries on the issuance of Regulations on Registration and Issuance of Various Permits Related to Fishing Activities.

+ Decision No. 211 TS/QD dated June 17, 1992 of the Minister of Fisheries on Technical Management and Safety Inspection of Fishing Vessels.

+ Decision No. 413 QĐ/BVNL dated April 1, 1996 of the Minister of Fisheries on the issuance of Regulations on Registration of Fishing Vessels and Crew Members.

3.5. Administrative violations related to management of aquaculture (Article 8 of Decree 48/CP).

Administrative violations related to management of aquaculture shall be punished according to Article 8 of Decree 48/CP. New breeds must be recognized by the Ministry of Fisheries; Transferring new breeds between provinces, importing/exporting breeds, importing/exporting feed for aquaculture must be approved by the Ministry of Fisheries (Fisheries Resource Protection Department).

3.6. Administrative violations related to prevention and control of aquatic diseases (Article 9 of Decree 48/CP).

Dumping diseased aquatic species or their carcasses into water bodies or disposing of their carcasses in places where they can spread disease to new water areas; Using, giving, or selling diseased aquatic species to others for breeding or as fresh feed for aquatic species are acts of spreading disease and shall be punished according to point b, Clause 1, Article 9 of Decree 48/CP.

Diseased aquatic species that cannot be cured must be destroyed.

3.7. Administrative violations related to the use of various permits (Article 10 of Decree 48/CP).

- Types of permits used in fishing activities include:

+ Fishing operation permit (applicable to fishing, aquaculture, service support, trade, processing of aquatic products).

+ Permit for import/export of breeds, animals, and animal products, veterinary drugs, and feed for aquatic animals.

+ Permit for production and trade of veterinary drugs and feed for aquaculture.

+ Permit for moving fishing forces.

+ Fishing vessel registration certificate.

+ Certificates of technical safety (inspection).

+ Health certificates; Quality certificates for breeds; Production condition certificates for breeds, aquatic hygiene conditions.

+ Professional certificates (driver's licenses, crew member books...).

Those who violate the principles of using permits seriously shall be punished according to Article 10 of Decree 48/CP.

- Permits shall be revoked in the following cases:

+ Permits issued by agencies without proper authority.

+ Permits containing illegal content.

+ Permits altered or tampered with. + Fake permits and documents.

When revoking permits (suspending the right to use permits), the authority must follow the procedures stipulated in Article 50 of the Administrative Violation Handling Ordinance.

4. Procedures for administrative penalties (Article 12 of Decree 48/CP).

4.1. When imposing administrative penalties for violations in the field of aquatic resource protection, the competent authority must comply with the provisions from Article 45 to 55 of the Ordinance on Handling Administrative Violations (Clause 1, Article 12 of Decree 48/CP) and follow the procedures below:

- Upon discovering an administrative violation, immediately issue an order to stop the violation.

- Prepare an administrative violation record according to Article 47 of the Ordinance on Handling Administrative Violations, except in cases where simplified procedures are applied for warnings or fines up to 20,000 VND, in which case there is no need to prepare a record but instead issue an on-the-spot penalty decision.

The administrative violation record shall be prepared using Form 03 XP/BVNL. If there is temporary detention of evidence or means of violating administrative regulations, a list must be prepared using Form 06 XP/BVNL. The record shall be provided to the organization or individual who violated the regulations with one copy and transferred to the competent authority responsible for imposing penalties with another copy.

- Issue a penalty decision according to Article 48 of the Ordinance on Handling Administrative Violations.

- The administrative penalty decision shall be prepared using Form 01 XP/BVNL.

The administrative penalty decision shall be delivered to the organization or individual who violated the regulations and other persons responsible for enforcing or needing to know about it.

- Within five days from the date the organization or individual receives the administrative penalty decision, if they do not voluntarily comply, the person issuing the penalty decision shall enforce the administrative penalty decision according to Article 55 of the Ordinance on Handling Administrative Violations. The enforcement decision shall be prepared using Form 02 XP/BVNL.

The forms for records, decisions, and lists mentioned above are specified in the annex accompanying this Circular.

4.2. Applying fine levels and combining penalties.

The monetary fine range for each violation under Decree 48/CP is defined flexibly. For ordinary violations, the average fine level should be applied; for violations with mitigating circumstances, a lower fine level should be applied but not less than the minimum fine level; for violations with aggravating circumstances, a higher fine level should be applied but not exceeding the maximum fine level.

- A person committing multiple administrative violations shall be penalized for each violation separately. If the penalties are fines, they must be combined into a total fine.

- Multiple people jointly committing one administrative violation shall each be penalized. In cases where multiple people on the same fishing vessel commit one administrative violation, the captain shall be penalized.

4.3. Handling evidence and means of administrative violations.

Evidence and means of administrative violations that are confiscated must be handled according to Article 52 of the Ordinance on Handling Administrative Violations.

For evidence that are fishing tools prohibited from use, the handling agency must destroy them or take measures to prevent their reuse for fishing purposes.

For diseased aquatic products, when destroying them, measures must be taken to prevent the spread of pathogens to other water areas.

4.4. Payment of fines and collection of fines (Clause 2, Article 12 of Decree 48/CP).

The Director of the Fisheries Department, the Department of Agriculture and Rural Development has the responsibility to negotiate with the State Treasury of the province to establish points for paying fines or authorize the collection of fines according to Clause 2, Article 12 of Decree 48/CP to ensure convenience for the implementation of penalty decisions.

5. Procedures for applying preventive measures against administrative violations and ensuring the handling of administrative violations.

Article 38 of the Administrative Violation Handling Ordinance provides for measures to prevent administrative violations and ensure the handling of administrative violations, including:

a) Detaining persons;

b) Seizing objects and means involved in administrative violations;

c) Searching persons;

d) Searching transport vehicles and objects;

đ) Searching places where objects and means involved in administrative violations are hidden.

When applying these measures, those with authority must strictly comply with the provisions from Article 39 to Article 44 of the Administrative Violation Handling Ordinance.

Among the above measures, when performing their duties, Fishery Resource Protection Inspectors may only apply the measure of searching transport vehicles (including fishing boats) and objects. To ensure the enforcement of administrative violation penalty decisions, Fishery Resource Protection Inspectors may temporarily seize the documents specified in Section 3.7 of this Circular or personal identification documents of organizations or individuals who have violated the law until such organizations or individuals complete the execution of the penalty decision.

When temporarily seizing documents, it must be clearly recorded in the administrative violation report, and the seized documents must be returned to the parties concerned upon completion of the Administrative Violation Penalty Decision. In cases where there are no documents to be seized, Inspectors may require organizations or individuals who have violated the law to bring the means of transportation back to the wharf or office for resolution.

For acts of administrative violations that are subject to confiscation of objects and means involved in administrative violations according to the level of fines, Fishery Resource Protection Inspectors have the right to retain such objects and means involved in administrative violations for confiscation.

6. The provisions on administrative violation penalties in the field of fishery resource protection that contradict Decree 48/CP are hereby abolished (Article 13 of Decree 48/CP), including:

- The provisions on penalties for foreign nationals under Article 22 of Decree 437-HĐBT dated December 22, 1990 of the Council of Ministers regarding the regulations on the operation of fishing activities by foreigners and foreign vessels in Vietnam's territorial waters.

- The provisions on administrative violation penalties in aquatic animal veterinary work under Section V of Circular No. 02 TS/TT dated June 25, 1994 of the Ministry of Fisheries guiding the implementation of Decree No. 93/CP dated November 27, 1993 of the Government on veterinary work for animals and aquatic animal products.

II. IMPLEMENTATION

1. Organize propaganda and dissemination of the contents of Decree 48/CP.

Assign the Director of the Fishery Resource Protection Department to assist the Minister; the Directors of Provincial Fisheries Departments and Agriculture and Rural Development Departments to assist the Chairmen of People's Committees of provinces and centrally-administered cities to disseminate the contents of Decree 48/CP and the Administrative Violation Handling Ordinance to organizations and individuals engaged in fishing and seafood activities related to fishing.

The Fishery Resource Protection Department shall organize training for Fishery Resource Protection Inspectors on administrative violation penalty work, and train the Inspector team to thoroughly understand and correctly apply the Administrative Violation Handling Ordinance and Decree 48/CP when performing their duties.

2. Improve the organizational structure of Fishery Resource Protection Inspectors:

- The permit of the Fisheries Department, Agriculture and Rural Development Department (in areas without Fishery Resource Protection Inspector organizations) shall advise the provincial People's Committee to quickly establish a Fishery Resource Protection Inspector organization and appoint the Chief of the Provincial Fishery Resource Protection Inspectorate according to Decision 415/TTg dated August 10, 1994 of the Prime Minister to centralize inspection, supervision, and administrative violation penalties in the field of fishery resource protection under the Provincial Fishery Resource Protection Inspectorate.

3. Supplement and perfect the system of regulatory documents:

Assign the Fishery Resource Protection Department to take the lead in coordinating with research institutes and localities to advise the Ministry to supplement, amend, or issue new regulations on prohibited aquatic species, prohibited fishing periods, prohibited fishing areas, and minimum allowable sizes for fishing, etc.

For localities with special characteristics, especially inland provinces, the Fisheries Department and the Agriculture and Rural Development Department should propose regulations for the Ministry of Fisheries to issue or delegate the provincial People's Committee to issue and implement within the province.

4. During the implementation of Decree 48/CP, if there are any issues that are not appropriate, they should be promptly reported to the Ministry of Fisheries for consolidation and submission to the Government for amendment and supplementation.

The Fishery Resource Protection Department is responsible for assisting the Ministry in directing and inspecting the implementation of this Circular.