CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 132/2015/NĐ-CPdated December 25, 2015, of the Government on Administrative Sanctions for Violations in the Field of Inland Waterway Transportadministrative violations in the inland waterway transport sector

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Pursuant to the Law on Handling Administrative Offenses dated June 20, 2012;

Pursuant to the Law on Inland Waterway Transport dated June 15, 2004, and the Law Amending and Supplementing Certain Provisions of the Law on Inland Waterway Transport dated June 17, 2014;

Pursuant to Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing certain provisions and measures to implement the Law on Handling Administrative Violations;

Pursuant to Decree No. 132/2015/NĐ-CP dated December 25, 2015, of the Government on Administrative Sanctions for Violations in the Field of Inland Waterway Transport;

Pursuant to Decree No. 107/2012/NĐ-CP dated December 20, 2012 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Transport;

At the proposal of the Director of the Legal Department and the Director of the Vietnam Inland Waterway Administration,

The Minister of Transport issues this Circular guiding the implementation of certain provisions of Decree No. 132/2015/NĐ-CP dated December 25, 2015, of the Government on Administrative Sanctions for Violations in the Field of Inland Waterway Transport.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

1. This Circular guides the implementation of certain provisions of Decree No. 132/2015/NĐ-CP dated December 25, 2015, of the Government on Administrative Sanctions for Violations in the Field of Inland Waterway Transport (hereinafter referred to as Decree No. 132/2015/NĐ-CP) regarding the determination of administrative violations; procedures and forms of sanctions; and the determination of sanctioning authority.

2. Administrative violations in the field of inland waterway transport include acts violating the provisions set out in Chapter II of Decree No. 132/2015/NĐ-CP.

Article 2. Applicability

1. The authority with the power to impose sanctions and issue administrative violation records as stipulated in Decree No. 132/2015/NĐ-CP.

2. Organizations and individuals committing administrative violations in the field of inland waterway transport; organizations and individuals related to administrative sanctioning activities in the field of inland waterway transport.

Article 3. Principles of Imposition of Sanctions

1. The principle of imposing administrative sanctions in the field of inland waterway transport shall comply with the provisions of Article 3 of the Law on Handling Administrative Violations.

2. Organizations and individuals committing violations, authorities with the power to impose sanctions and issue administrative violation records in the field of inland waterway transport, and related organizations and individuals must comply with the provisions of the Law on Handling Administrative Violations, Decree No. 81/2013/NĐ-CP dated July 19, 2013, of the Government detailing certain provisions and measures for implementing the Law on Handling Administrative Violations, Decree No. 132/2015/NĐ-CP, and this Circular.

Chapter II

SPECIFIC PROVISIONS

Article 4. Method for Determining Gross Tonnage and Power of Uninspected and Unregistered Vessels

For violations committed by organizations and individuals as stipulated in Decree No. 132/2015/NĐ-CP involving unregistered and uninspected vessels, the method for determining the gross tonnage and power of such vessels for the purpose of imposing sanctions is as follows:

1. The gross tonnage of the vessel denoted as T (tons) is calculated using the formula T = A x K, where:

a) A is the value of the measurement of the main deck length, measured from the bow to the stern of the vessel multiplied by the measurement of the main deck width at midship of the vessel multiplied by the measurement of the side height, measured from the bottom to the main deck at midship of the vessel, calculated using the formula A = L x B x D, where:

            L (m): Main deck length measured from the bow to the end of the stern of the vessel;

            B (m): Main deck width measured at midship of the vessel;

            D (m): Side height measured from the bottom to the main deck at midship of the vessel.

b) K is the coefficient corresponding to the value of A and applied as follows:

Value of A from 4.55 m³ to 18.76 m³ then coefficient K = 0.26;

Value of A from above 18.76 m³ to 49.80 m³ then coefficient K = 0.29;

Value of A from above 49.80 m³ to 387.20 m³ then coefficient K = 0.35;

Value of A from above 387.20 m³ to 1,119.80 m³ then coefficient K = 0.51;

Value of A above 1,119.80 m³ then coefficient K = 0.57.

2. If it is not possible to determine the gross tonnage according to the provisions of Clause 1 of this Article, the authority with the power to impose sanctions may request the Inspection Authority to determine the gross tonnage of the vessel as the basis for issuing an administrative violation decision.

3. If the vessel is not a cargo or passenger transport vessel, the total power of the main engine installed on the vessel shall be the basis for applying the form and level of penalty.

4. For vessels such as floating docks or other floating structures equipped with construction or dredging equipment, mining equipment, or cargo handling equipment, if there is insufficient evidence to determine the gross tonnage or power of the vessel, it shall be determined as follows:

a) Vessels with the longest length up to 10 m or the widest width up to 4 m shall be considered as having a gross tonnage from 5 tons to 15 tons;

b) Vessels with the longest length over 10 m or the widest width over 4 m shall be considered as having a gross tonnage over 15 tons;

c) The length of the vessel is measured from the outermost point of the bow of the vessel to the outermost point of the stern of the vessel or from two outermost points of the vessel at the largest cross-section on the main deck;

d) The width of the vessel is measured from the edge of the main deck on one side to the edge of the main deck on the other side, at the position with the largest dimensions.

Article 5. Conversion of units to capacity (GT)

In cases where the certificate of the vessel does not indicate the capacity, the capacity of the vessel shall be calculated as follows:

1. Motorized watercraft: 1.5 tons of registered tonnage equals 01 GT.

2. Non-motorized watercraft: 01 ton of registered tonnage equals 01 GT.

3. Tugboats, pusher boats: 01 horsepower equals 0.5 GT.

Article 6. Violations concerning construction, protection, and exploitation of inland waterway transportation infrastructure

1. The means and equipment subject to confiscation as stipulated in Point b Clause 11 Article 5 Decree 132/2015/NĐ-CP include excavators, dredgers, suction pumps, grab cranes, and combustion engines, pumps, suction machines, pipes, and other machinery, equipment, and tools directly used for sand and gravel extraction or other mineral resources.

2. The scope of protection for works under the inland waterway transportation infrastructure as specified in Point đ Clause 9 Article 5 Decree 132/2015/NĐ-CP includes the protective range of revetments, dams, signaling devices, hydrological markers, survey markers, boundary markers of navigation channel protection zones, and other works, excluding the channels and their protection zones.

3. The subjects violating the provisions of Article 7 Decree 132/2015/NĐ-CP are organizations and individuals assigned or awarded contracts to manage and maintain inland waterways.

Article 7. Violations concerning operating conditions of vessels

1. The act stipulated in Point a Clause 1 Article 11 Decree 132/2005/NĐ-CP is the act of marking or affixing the registration number on the vessel incorrectly according to the following requirements:

a) The registration number of the vessel consists of two groups, a group of letters and a group of numbers.

b) The size of the letters and numbers marked on the vessel must meet the condition: Minimum height of 200 mm, minimum width of the stroke of 30 mm, and spacing between characters or numbers of 30 mm;

c) The color of the letters and numbers must contrast with the background where they are marked;

d) Position of the registration number of the vessel:

The registration number of the vessel must be marked at a place that is not obstructed on the left side, right side, and front of the cabin of the vessel;

In cases where the vessel does not have a cabin, it must be marked on the sides of the vessel's hull at both ends;

In cases where the vessel does not have a cabin and the height of the hull is insufficient to mark or affix the registration number as required, the size may be reduced when marking, but it must be done at the most visible location.

2. The act stipulated in Point d Clause 1 Article 11 Decree 132/2015/NĐ-CP is the act of marking the safe draft line incorrectly on the side of the vessel or making the draft line indistinct or having the same color as the vessel's hull.

3. Handling of acts of not having or carrying the prescribed documents as stipulated in Clause 2, Clause 3, Clause 4, and Clause 5 Article 11 Decree 132/2015/NĐ-CP is as follows:

a) At the time of inspection, if the owner of the vessel, crew member, or driver cannot present the required documents such as the vessel registration certificate, technical safety and environmental protection certificate of the vessel, license, certificate of professional competence, then the authorized person shall record the act of not having the documents. Within the period for issuing the administrative penalty decision, if the violator presents the original documents or a valid confirmation from a financial institution for the case of a vessel under mortgage, the authorized person shall issue a decision on the act of not carrying the documents and must photocopy and retain these documents in the administrative penalty file;, b) If the documents of the vessel, crew members, or drivers have been temporarily seized to ensure the execution of the administrative penalty decision, and the violator presents an administrative violation record noting the seized documents still within the validity period, it shall be considered that the vessel, crew members, or drivers have the required documents. If the validity period of the administrative violation record has expired, the violator will be penalized for the act of not having the required documents.

4. Penalty for the act of not installing safety equipment as stipulated in Clause 4 Article 12 Decree 132/2015/NĐ-CP

a) The application period for penalizing the act of not installing the Automatic Identification System (AIS) device on passenger vessels operating on fixed routes from the mainland to islands or between islands is from January 1, 2017;

b) For the act of not having a satellite emergency position indicating radio beacon (S-EPIRB) on cargo ships with a capacity of 300 GT or more and passenger ships operating coastal transport routes, penalties will only be imposed when there is a legal requirement to install such beacons.

5. Violations concerning the service life of vessels as stipulated in Article 14 Decree 132/2015/NĐ-CP

When inspecting and before issuing a decision on the administrative penalty for violations concerning the service life of vessels, the authorized person must compare the service life of the vessel as stipulated in Article 4 and Article 13 Decree No. 111/2014/NĐ-CP dated November 20, 2014 of the Government on the service life of inland waterway vessels and imported vessels to apply the penalty.

When inspecting and before issuing a decision to impose an administrative penalty for violations concerning the service life of vessels, the authorized person must compare with the usage period of vessels stipulated in Article 4 and Article 13 of Decree No. 111/2014/ND-CP dated November 20, 2014 of the Government on the service life of inland waterway vessels and the service life of imported vessels for application in imposing penalties.

Article 8. Violations concerning the conditions for crew members and drivers

1. The cases where there is no captain's license, chief engineer's license, or certificate of competency for captains and chief engineers, or specialized certificates as stipulated in Point b Clause 1, Clause 2 and Clause 3 Article 16 Decree 132/2015/NĐ-CP include:

a) Not having a license, certificate of competency, or specialized certificate issued by authorized training institutions for crew members and drivers;

b) Using a maritime or fisheries sector license or certificate of competency to serve as a crew member on inland waterway vessels, or using other specialized certificates not included in the system of licenses, certificates of competency, or specialized certificates as prescribed by inland waterway traffic laws.

2. In cases where crew members have a captain's license, chief engineer's license, or certificate of competency for captains and chief engineers but do not comply with the provisions of Clause 2 and Clause 3 Article 16 Decree 132/2015/NĐ-CP, they shall be serving in a higher rank than their license or certificate of competency allows.

3. Licenses, certificates of competency, and specialized certificates specified in Clause 4 Article 16 Decree 132/2015/NĐ-CP include:

a) Captain's license, chief engineer's license of first class, second class, third class, and limited third class;

b) Certificate of competency for captains divided into four classes: first class (T1), second class (T2), third class (T3), fourth class (T4);

c) Certificate of competency for chief engineers divided into three classes: first class (M1), second class (M2), third class (M3);

d) Basic safety training certificate (BSTC);

đ) Professional certificates: First-class seaman certificate (ST1), second-class seaman certificate (ST2); first-class engineer certificate (ET1), second-class engineer certificate (ET2); first-class driver certificate (DT1), second-class driver certificate (DT2);

e) Specialized certificates: High-speed vessel operation certificate type I (HVOI); high-speed vessel operation certificate type II (HVOII); coastal navigation vessel operation certificate (CNVO); coastal navigation vessel safety work certificate (CNVSC); petroleum product vessel safety work certificate (PPVSC); chemical vessel safety work certificate (CVSC); liquefied gas vessel safety work certificate (LGVSC).

4. In cases where vessels are permitted to carry passengers and cargo, if crew members or drivers violate the regulations on license ranks, certificates of competency, or specialized certificates, penalties will be based on the regulations governing the roles and types of specialized certificates applicable to passenger-carrying vessels.

Article 9. Violations concerning vessel owners, vessel lessees, crew members, and drivers

The violation of using persons who do not meet the required conditions as crew members as stipulated in Point d Clause 2 Article 17 Decree 132/2015/NĐ-CP refers to the act of vessel owners using individuals without a license, certificate of competency, or specialized certificate; failing to ensure health standards; being under or over the age limit as prescribed.

Article 10. Violation of regulations on the operation of vessels within the port and inland waterway wharf area

Operating a vessel to enter a port or inland waterway wharf without a departure permit from the port or inland waterway wharf as stipulated in Point c Clause 1 Article 24 Decree 132/2015/NĐ-CP is the act where the vessel enters the port or wharf without a departure permit from the port or wharf according to the regulations at the port or wharf from which the vessel departed before arriving at the destination port or wharf.

Article 11. Administrative penalty for tugboat groups

1. A tugboat group consists of multiple vessels joined together, including the tugboat and the towed vessel. The total deadweight of the tugboat group includes the total deadweight of all the towed vessels.

2. Administrative penalties shall be imposed for the act of carrying beyond the safe draft mark of the tugboat group as prescribed in Article 28 of Decree 132/2015/NĐ-CP.

In cases where multiple vessels in the tugboat group exceed the safe draft mark, when determining the violation, it must be based on the towed vessel with the largest degree of submergence beyond the dry dock mark.

Article 12. Determining the authority to impose administrative penalties

The authority to impose administrative penalties in the field of inland waterway transport must be implemented in accordance with the provisions of Articles 34, 35, 36, 37, 38, 39, 40, 41, and 42 of Decree 132/2015/NĐ-CP and the following provisions:

1. For administrative violations occurring at ports and inland waterway wharfs not under the management responsibility of the Inland Waterway Transport Inspection Authority or the Maritime Port Inspection Authority, the authority to impose administrative penalties belongs to the traffic inspection force, the agency assigned to perform specialized inspection functions in inland waterway transport, and the People's Public Security.

2. On border areas or on the same route where there are multiple forces performing patrol and control duties, if one of these forces with the authority to impose penalties discovers the violation first, the authority to impose administrative penalties belongs to that force.

Article 13. Temporary detention of documents to ensure administrative penalties

1. In cases where only a fine is applied to individuals or organizations violating administrative regulations, the person authorized to impose penalties has the right to temporarily detain and may only temporarily detain the original of one of the following documents until the individual or organization complies with the penalty decision:

a) Certificate or certificate of professional competence of the master, driving license of the vessel;

b) Vessel registration certificate or credit institution confirmation letter still valid in the case of mortgaged vessels;

c) Technical safety and environmental protection certificate of the vessel;

d) Certificate or certificate of professional competence of the chief engineer;

đ) Documents related to evidence items or other vessels.

2. The person authorized to temporarily detain documents must record full information about the detained documents, the detention period in the administrative violation record, and hand over the record to the violator holding the detained documents.

Article 14. Information System

1. In cases where vessel documents, certificates, or professional qualification certificates are temporarily detained to ensure the enforcement of penalties, if the deadline recorded in the administrative violation record expires and the individual or organization does not implement the administrative penalty decision, within three days from the expiration date of the temporary detention recorded in the temporary detention document or administrative violation record, the person authorized to impose penalties must notify in writing or by other means to the Traffic Police Corps. If the organization or individual comes to enforce the penalty decision after notification, the penalizing unit must notify again to the Traffic Police Corps.

2. In cases where the right to use permits, certificates, or professional qualifications is revoked, immediate notification must be made in writing or by other means to the issuing authority and the Traffic Police Corps.

3. Notifications sent to the issuing authority and the Traffic Police Corps must clearly state the type of temporarily detained or revoked document: name, number, code of the document, vessel registration number, detention period, revocation period, name, address of the holder of the temporarily detained or revoked document, and the administrative violation.

Article 15. Sample minutes and sample decisions for administrative offenses penalties

This Circular promulgates certain sample minutes and sample decisions frequently used to impose administrative offenses penalties in the inland waterway transport sector. Other sample minutes and sample decisions shall be applied in accordance with the provisions of Government Decree No. 81/2013/NĐ-CP dated July 19, 2013 detailing some articles and measures to implement the Law on Handling Administrative Violations.

Chapter III

IMPLEMENTATION

Article 16. Effective Date

This Circular takes effect from August 1, 2016.

Article 17. Responsibility for Implementation

The Director of the Ministry's Office, the Inspector General of the Ministry, the Heads of Departments, the Directors of the Vietnam Inland Waterways Administration, the Director of the Vietnam Maritime Administration, the Directors of Provincial Departments of Transport under central cities and provinces, relevant agencies, organizations, and individuals are responsible for implementing this Circular./.