Circular No. 130/2014/TT-BQP guiding the implementation of certain provisions of the Government's Decree No. 162/2013/NĐ-CP dated November 12, 2013 on administrative penalties for violations in Vietnam’s marine areas, islands, and continental shelf.

CIRCULAR

Guidelines for implementing certain provisions of Decree No. 162/2013/NĐ-CP dated November 12, 2013 of the Government on administrative penalties in maritime, island, and continental shelf areas of the Socialist Republic of Vietnam

 on November 12, 2013, concerning administrative penalties for violations in maritime, island, and continental shelf areas of the Socialist Republic of Vietnam

 

 

__________________

 

Pursuant to the Law on Handling Administrative Violations 2012;

Pursuant to Decree No. 162/2013/NĐ-CP dated November 12, 2013 of the Government on administrative penalties for violations in maritime, island, and continental shelf areas of the Socialist Republic of Vietnam;

Pursuant to Decree No. 35/2013/NĐ-CP dated April 22, 2013, of the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of National Defense;

At the proposal of the Commander of the Coast Guard,

The Minister of National Defense issues guidelines for implementing certain provisions of Decree No. 162/2013/NĐ-CP dated November 12, 2013 of the Government on administrative penalties for violations in maritime, island, and continental shelf areas of the Socialist Republic of Vietnam.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

Article 2. Other regulations on administrative penalties for violations in maritime, island, and continental shelf areas of the Socialist Republic of Vietnam not covered by these Circulars shall be implemented in accordance with the Law on Handling Administrative Violations 2012 and other relevant legal documents.

Article 2. Applicability

This Circular applies to:

1. Vietnamese individuals and organizations and foreign individuals and organizations that commit administrative violations in maritime, island, and continental shelf areas of the Socialist Republic of Vietnam.

Article 3. Measures to remedy consequences

The application of measures to remedy consequences stipulated in Clauses 2, 3, 4, and 5 of Article 4 of Decree No. 162/2013/NĐ-CP shall be carried out in the following steps:

1. Issuing an administrative penalty decision which includes recording measures to remedy consequences.

2. Announcing the administrative penalty decision.

3. Using means, tools, and other methods prescribed by law to require the implementation of the contents of the measures to remedy consequences recorded in the administrative penalty decision.

Article 4. Use of forms in administrative penalties in maritime, island, and continental shelf areas of the Socialist Republic of Vietnam

The use of forms for administrative penalties in maritime, island, and continental shelf areas of the Socialist Republic of Vietnam shall be carried out in accordance with the provisions of the Minister of National Defense and other relevant laws.

Chapter II

ADMINISTRATIVE VIOLATIONS IN MARITIME, ISLAND, AND CONTINENTAL SHELF AREAS OF THE SOCIALIST REPUBLIC OF VIETNAM

Article 5. Violations of the innocent passage regime in territorial waters as stipulated in Article 5 of Decree No. 162/2013/NĐ-CP

1. The act of anchoring or mooring illegally in Vietnam's territorial waters as stipulated in Clause 1 of Article 5 of Decree No. 162/2013/NĐ-CP is the act of foreign vessels passing through Vietnam's territorial waters without causing harm but stopping or anchoring in Vietnam's territorial waters without being due to maritime accidents, force majeure, distress, or for the purpose of rescuing people, ships, or aircraft in distress.

1. Hoisting flags on vessels at seaports shall be carried out in accordance with the provisions of Article 75 of Decree No. 21/2012/NĐ-CP dated March 21, 2012 of the Government on management of seaports and maritime channels (hereinafter referred to as Decree No. 21/2012/NĐ-CP).

2. Hoisting the National Flag on Vietnamese merchant ships shall be carried out in accordance with the provisions of Circular No. 07/2012/TT-BGTVT dated March 21, 2012 of the Minister of Transport on the positions, duties according to positions of seafarers and registration of seafarers working on Vietnamese merchant ships.

3. Hoisting the flag of nationality and the National Flag of Vietnam for foreign vessels operating in the border sea area shall be carried out in accordance with the provisions of Article 15 of Decree No. 161/2003/NĐ-CP dated December 18, 2003 of the Government on the Regulations of the Border Sea Area.

Article 7. Acts infringing upon the territorial waters, islands, and continental shelf of the Socialist Republic of Vietnam as prescribed in Clause 3 Article 8, Article 9, Article 11, Clause 6 Article 13 of Decree No. 162/2013/NĐ-CP

1. Acts infringing upon the territorial waters, islands, and continental shelf of the Socialist Republic of Vietnam as prescribed in Clause 3 Article 8, Article 9, Article 11, Clause 6 Article 13 of Decree No. 162/2013/NĐ-CP are acts of individuals and organizations from foreign countries using, controlling vessels or other means to enter and carry out activities such as surveying, exploring, scientific research on marine resources; tourism activities; fishing, buying, selling aquatic products; constructing, installing, using artificial islands, equipment, structures in the territorial waters, islands, and continental shelf of the Socialist Republic of Vietnam without permission from the Socialist Republic of Vietnam.

2. For individuals and organizations from foreign countries permitted by the Socialist Republic of Vietnam to use, control vessels or other means to enter the territorial waters, islands, and continental shelf of the Socialist Republic of Vietnam to conduct surveying, exploring, scientific research on marine resources; tourism activities; fishing, buying, selling aquatic products; activities related to artificial islands, equipment, structures that violate regulations but do not constitute acts infringing upon the territorial waters, islands, and continental shelf of the Socialist Republic of Vietnam.

Article 8. The act of "hindering" as prescribed in Article 12 of Decree No. 162/2013/NĐ-CP

The act of "hindering" as prescribed in Clause 1, Clause 2 Article 12 of Decree No. 162/2013/NĐ-CP is the act of individuals and organizations conducting activities at sea causing maritime traffic vessels to change speed, alter course; fishing vessels must change their fishing net deployment procedures; seismic survey vessels must change their route; oil exploration and exploitation vessels and other natural resource exploitation vessels must change their planned routes; and other lawful activities at sea cannot proceed normally.

1. Acts of transporting goods at sea without a contract or similar document as prescribed by law as stipulated in Point a Clause 1 Article 15 of Decree No. 162/2013/NĐ-CP are acts of transporting goods at sea without documentation proving the transportation of goods at sea; including:

a) Transporting goods on a voyage without a written transport contract as prescribed by the Maritime Code 2005 and related documents;

b) Transporting goods based on transport documents without one of the following documents: A written transport contract as prescribed by the Maritime Code 2005 and related documents; a bill of lading; a delivery order for sea cargo or other transport documents agreed upon by the carrier and the charterer regarding content and value. For bills of lading of goods for temporary import and re-export, it shall be implemented in accordance with Circular No. 05/2014/TT-BCT dated January 27, 2014 of the Minister of Industry and Trade on temporary import, re-export, temporary export, re-import, and transshipment of goods.

2. Acts of using transportation means unsuitable for the type of goods as prescribed in Point b Clause 1 Article 15 of Decree No. 162/2013/NĐ-CP include:

a) Using transportation means unsuitable for petroleum products as prescribed in Decree No. 84/2009/NĐ-CP dated October 15, 2009 of the Government on petroleum business;

b) Using transportation means unsuitable for goods other than petroleum products as prescribed by law.

3. Acts of transshipping petroleum products, ores, and other goods at unauthorized locations as prescribed in Point c Clause 1 Article 15 of Decree No. 162/2013/NĐ-CP include:

a) Transshipping petroleum products at unauthorized locations as prescribed in Clause 7 Article 9 of Decree No. 84/2009/NĐ-CP dated October 15, 2009 of the Government on petroleum business;

b) Transshipping goods other than petroleum products at unauthorized locations as prescribed by law.

4. Acts of transporting, buying, selling, exchanging, transshipping goods that are not subject to conditional trade or transportation without proper documentation or incomplete documentation proving the legality of the goods as prescribed in Clause 2 Article 15 of Decree No. 162/2013/NĐ-CP include:

a) Cases where there is no documentation proving the legality of imported goods transported from customs clearance areas into inland areas as prescribed in Article 5 of Joint Circular No. 60/2011/TTLT-BTC-BCT-BCA dated May 12, 2011 of the Ministers of Finance, Industry and Trade, and Public Security guiding the invoice and certificate system for imported goods circulating in the market;

b) Cases where goods are transported for export without an export declaration having been processed through customs and confirmed by the Customs Sub-Department at the exit port as "goods have passed the supervision area".

c) The case where imported goods being transported to the customs clearance location do not have all the required documents for customs procedures as prescribed in Clause 2, Article 12 of Circular No. 128/2013/TT-BTC dated September 10, 2013, issued by the Minister of Finance on customs procedures; customs inspection and supervision; export tax, import tax, and tax management for exported and imported goods;

d) The case of transporting minerals without lawful origin;

đ) The case of transporting forest products without lawful documentation or with lawful documentation but the documentation does not match the actual forest products being transported; wood lacking the forestry inspector's stamp as required by law. Lawful forest product documentation is defined according to Circular No. 01/2012/TT-BNNPTNT dated January 4, 2012, issued by the Minister of Agriculture and Rural Development on lawful forest product documentation and forest product origin verification, and Circular No. 42/2012/TT-BNNPTNT dated August 21, 2012, issued by the Minister of Agriculture and Rural Development amending and supplementing certain provisions of Circular No. 01/2012/TT-BNNPTNT dated January 4, 2012, on lawful forest product documentation and forest product origin verification;

e) The case of domestically produced, transported, and traded goods that do not fall under the cases specified in points a, b, c, d, and đ of Clause 4 of this Article, and which lack or do not have complete documentation proving their legality, including:

- Value-added tax invoice or sales invoice in the prescribed form and as stipulated in Circular No. 64/2013/TT-BTC dated May 15, 2013, issued by the Minister of Finance guiding the implementation of Decree No. 51/2010/NĐ-CP dated May 14, 2010, of the Government on sales invoices and service provision invoices (hereinafter referred to as Circular No. 64/2013/TT-BTC);

- Documents printed, issued, used, and managed like invoices, including internal warehouse dispatch and transportation slips, warehouse dispatch slips for consignment sales to agents, as prescribed in Circular No. 64/2013/TT-BTC. The determination of illegal invoices and the illegal use of invoices shall be carried out in accordance with the provisions of Articles 20 and 21 of Circular No. 64/2013/TT-BTC;

- The case of transporting, buying, selling, exchanging, or transferring other goods without documentation or without complete documentation proving the legality of the goods, as provided for by law;

5. The act of transporting, buying, selling, exchanging, or transferring goods subject to conditional transport business at the time of inspection lacks or does not have complete accompanying documents to prove the legality of such goods as prescribed in Clause 2, Article 15 of Decree No. 162/2013/NĐ-CP, including:

a) Lack of invoices or documents; documents printed, issued, used, and managed like invoices, including internal warehouse dispatch and transportation slips, warehouse dispatch slips for consignment sales to agents, as prescribed in Circular No. 64/2013/TT-BTC;

b) Imported goods listed in the list of conditionally imported goods without an import permit or accompanying documents issued by competent state agencies as required when circulating in the market. The list of conditionally imported goods is implemented in accordance with the provisions of Decree No. 187/2013/NĐ-CP dated November 20, 2013, of the Government detailing the implementation of the Trade Law on international trade activities and foreign trade agency purchase, sale, processing, and transit goods;

c) The list of goods subject to conditional trading and transport is implemented according to Appendix III of Decree No. 59/2006/NĐ-CP dated June 12, 2006, of the Government detailing the Trade Law on prohibited, restricted, and conditionally permitted goods and services, and related documents.

1. Types of documents and certificates for vessels as stipulated in Clause 1 of Article 16 of Decree No. 162/2013/NĐ-CP shall be implemented according to Decision No. 54/2005/QĐ-BGTVT dated October 27, 2005 of the Minister of Transport on issuing the list of certificates and documents for Vietnamese merchant ships and public service vessels, and other related legal documents.

2. The final port clearance permit as stipulated in Clause 2 of Article 16 of Decree No. 162/2013/NĐ-CP is a document issued or confirmed by the maritime port authority or competent authority at the final port departure location in accordance with Decree No. 21/2012/NĐ-CP dated March 21, 2012 of the Government on management of seaports and maritime channels (hereinafter referred to as Decree No. 21/2012/NĐ-CP). In cases where a vessel has been granted a clearance permit but remains at the port for more than 24 hours from the time of receiving the Clearance Permit, it must reapply for departure procedures in accordance with Decree No. 21/2012/NĐ-CP.

1. Acts violating professional certificate requirements as stipulated in Article 17 of Decree No. 162/2013/NĐ-CP are acts of crew members working on vessels without sufficient professional certificates as prescribed in Circular No. 11/2012/TT-BGTVT dated April 12, 2012 of the Minister of Transport on standards and professional certificates for crew members and minimum safe manning of Vietnamese merchant ships (hereinafter referred to as Circular No. 11/2012/TT-BGTVT); Circular No. 51/2013/TT-BGTVT dated December 11, 2013 of the Minister of Transport amending and supplementing Circular No. 11/2012/TT-BGTVT, and other related documents.

2. Acts of not providing sufficient minimum safe manning as stipulated in Clause 3 of Article 18 of Decree No. 162/2013/NĐ-CP are acts of not providing sufficient minimum safe manning for Vietnamese merchant ships as prescribed in Circular No. 11/2012/TT-BGTVT; Circular No. 51/2013/TT-BGTVT dated December 11, 2013 of the Minister of Transport amending and supplementing Circular No. 11/2012/TT-BGTVT, and other related documents.

3. Acts violating the number of crew members or crew member passports as stipulated in Article 17 of Decree No. 162/2013/NĐ-CP are acts of crew members working on vessels without or not having sufficient crew member numbers or crew member passports as prescribed in Circular No. 07/2012/TT-BGTVT dated March 21, 2012 of the Minister of Transport and Circular No. 04/2013/TT-BGTVT dated April 1, 2013 of the Minister of Transport on positions, duties according to positions of crew members and registration of crew members working on Vietnamese merchant ships.

Determination of the level of maritime accidents to identify violations as stipulated in Clauses 3 and 4 of Article 20 of Decree No. 162/2013/NĐ-CP shall be carried out in accordance with Circular No. 27/2012/TT-BGTVT dated July 20, 2012 of the Minister of Transport on reporting and investigating maritime accidents.

Article 13. Acts violating other provisions on security and safety in maritime zones, islands, and the continental shelf of the Socialist Republic of Vietnam as stipulated in Article 21 of Decree No. 162/2013/NĐ-CP

1. The marine security officer specified in Point c Clause 2 Article 21 of Decree No. 162/2013/NĐ-CP is a person on board the ship, responsible to the captain, designated by the company, responsible for the security of the ship, including the implementation and maintenance of the Ship Security Plan and maintaining contact with the Company's Security Officers and Port Facility Security Officers, as prescribed in the International Convention on Maritime Security and Port Facilities Security; Circular No. 27/2011/TT-BGTVT dated April 14, 2011 issued by the Minister of Transport amending and supplementing the 2002 International Convention on Safety of Life at Sea 1974 accompanying the International Convention on Maritime Security and Port Security.

3. Documents, list of dangerous goods, and regulations on the transportation of dangerous goods on inland waterways specified in Point b Clause 3 Article 21 of Decree No. 162/2013/NĐ-CP shall be implemented according to the provisions of Decree No. 29/2005/NĐ-CP dated March 10, 2005 of the Government on the list of dangerous goods and the transportation of dangerous goods on inland waterways.

5. Marine safety equipment and pollution prevention equipment installed on domestic route Vietnamese ships shall be implemented according to the provisions of Decision No. 59/2005/QĐ-BGTVT dated November 21, 2005 issued by the Minister of Transport on the regulations on marine safety equipment and pollution prevention equipment installed on domestic route Vietnamese ships.

7. Routes and areas of operation of sea vessels shall be implemented according to the provisions of Circular No. 12/2010/TT-BGTVT dated April 21, 2010 issued by the Minister of Transport on the National Technical Regulations "Classification and Construction of Steel-Hulled Sea Vessels"; Circular No. 05/2013/TT-BGTVT dated May 2, 2013 issued by the Minister of Transport on the National Technical Regulations on Classification and Construction of Steel-Hulled Sea Vessels - Amended in 2013. The routes and areas of operation of sea vessels are also determined in the vessel's file.

Article 14. Acts violating environmental protection regulations when foreign nuclear-powered vessels or vessels carrying radioactive, toxic, or hazardous materials pass through Vietnam's territorial sea as stipulated in Article 24 of Decree No. 162/2013/NĐ-CP

1. Foreign nuclear-powered vessels or vessels carrying radioactive, toxic, or hazardous materials passing through Vietnam's territorial sea are cases where vessels are exercising the right of innocent passage through the territorial sea, including:

a) Passing through but not entering the internal waters of Vietnam, not anchoring at any port facility, wharf, or anchorage outside the internal waters of Vietnam;

b) Entering or leaving the internal waters of Vietnam or anchoring or leaving a port facility, wharf, or anchorage outside the internal waters of Vietnam,

2. Technical documents related to vessels and cargo on board as stipulated in Clause 1 of Article 24 of Decree No. 162/2013/NĐ-CP shall be applied as follows:

a) For vessels carrying radioactive, toxic, or hazardous materials, they shall comply with Regulation 4, Regulation 7-2, Regulation 10, and Regulation 16 of Chapter VII of the International Convention on Safety of Life at Sea 1974; in the case of nuclear-powered vessels, they shall comply with Regulation 10 of Chapter VIII of the International Convention on Safety of Life at Sea 1974;

b) Documentation for the carriage of toxic substances by sea shall be carried out according to Regulation 4 of Appendix III and Regulation 11 of Appendix II of the International Convention for the Prevention of Pollution from Ships 1973, as amended by the Protocol of 1978 (hereinafter referred to as the MARPOL 73/78 Convention).

3. Civil liability insurance documents include certificates of civil liability insurance of the shipowner, certificates of insurance or financial guarantees for civil liability for oil pollution damage, or other insurance certificates as prescribed by relevant international conventions to which Vietnam is a member.

Article 15. Acts violating regulations on marine environmental protection caused by vessels are prescribed in Article 25 of Decree No. 162/2013/NĐ-CP.

1. The recording of oil logs, bilge pumping logs, discharge logs as prescribed in Clause 1 of Article 25 of Decree No. 162/2013/NĐ-CP shall be implemented according to Appendix I of the MARPOL 73/78 Convention.

a) Harmful liquid substance type A is exhaust gas discharged into the sea that accumulates in marine organisms or human bodies causing significant danger, listed in TCVN 6276:2003 and temporarily evaluated as type A substances;

b) Harmful liquid substance type B is substances that accumulate for up to one week, listed in TCVN 6276:2003 and temporarily evaluated as type B substances;

c) Harmful liquid substance type C is substances that cause minor levels of danger to marine life, listed in TCVN 6276:2003 and temporarily evaluated as type C substances;

d) Harmful liquid substance type D is substances that cause levels of danger that may be considered hazardous to marine life, listed in TCVN 6276:2003 and temporarily evaluated as type D substances.

4. In cases where violations by vessels causing environmental pollution overlap with violations in the maritime sector outside port waters but have different forms and penalties, the following shall apply:

a) For violations that have resulted in environmental consequences, the form and level of penalty stipulated in this section shall be applied;

b) For violations that have not resulted in environmental consequences, the form and level of penalty stipulated in the section on violations in the maritime sector outside port waters shall be applied.

Article 16. Acts violating regulations on the transport of hazardous waste as prescribed in Article 26 of Decree No. 162/2013/NĐ-CP.

2. Transporting hazardous waste involves the carriage of hazardous waste from the place of generation to the place of treatment, which may also include collection, packaging, storage, temporary holding, transshipment, and preliminary processing of hazardous waste.

5. The Global Positioning System (GPS) must be installed on vehicles transporting high-risk hazardous waste to accurately determine their position and record the journey of hazardous waste transportation as required by the agency confirming the Environmental Protection Commitment or the issuing authority;

6. Vehicles and equipment dedicated to collecting, transporting, packaging, storing, and temporarily holding hazardous waste do not meet technical requirements if they lack any of the following conditions:

a) The vehicle has not been registered for operation;

b) The vehicle does not have emergency warning and response equipment installed during operation;

c) For vehicles transporting high-risk hazardous waste without GPS installed;

d) Not designed to prevent leakage or release of hazardous waste into the environment, not mixing different types of hazardous waste, made from materials that do not react with hazardous waste;

đ) Lack warning signs; preventive measures according to Vietnamese Standard TCVN 6707-2009 on "Hazardous Waste - Warning Signs, Prevention."

Chapter III

AUTHORITY TO IMPOSE PENALTIES AND TO ISSUE ADMINISTRATIVE VIOLATION NOTICES IN THE MARINE AREAS, ISLANDS, AND CONTINENTAL SHELF OF THE SOCIALIST REPUBLIC OF VIET NAM

Article 17. Competence to impose administrative penalties

2. The administrative penalty competence of the Coast Guard Police Force and other forces as prescribed in other decrees of the Government concerning administrative penalties in related fields shall be implemented according to those decrees.

3. Other provisions regarding the administrative penalty competence of the Coast Guard Police Force and other forces as provided for in the Law on Handling Administrative Violations 2012 and related documents shall apply.

Coast Guard Police Officers as defined in Article 28 of Decree No. 162/2013/NĐ-CP and Coast Guard Investigators as defined in Clause 2, Article 33 of Decree No. 162/2013/NĐ-CP have the authority to establish administrative violation records as persons appointed in accordance with Circular No. 94/2010/TT-BQP dated July 12, 2010 issued by the Minister of National Defense prescribing standards and procedures for appointing and relieving Coast Guard Police Officers and Investigators of the Vietnam Coast Guard Force.

Chapter IV

IMPLEMENTING PROVISIONS

Article 19. Effective Date

This Circular takes effect from November 12, 2014 and replaces Circular No. 137/2005/TT-BQP dated September 20, 2005 issued by the Minister of National Defense guiding the implementation of Decree No. 137/2004/NĐ-CP dated June 16, 2004 of the Government on administrative penalties in Vietnam's maritime zones and continental shelf.

In cases where cited documents in this Circular are amended, supplemented, or replaced, the amended, supplemented, or replacing documents shall be applied.

Article 21. Responsibility for Implementation

1. The Commander of the Coast Guard, heads of forces with the competence to impose administrative penalties organize and direct the imposition of administrative penalties in accordance with Decree No. 162/2013/NĐ-CP, this Circular, and related documents; inspect compliance with laws to ensure uniform implementation throughout the force in accordance with legal regulations.

2. If difficulties arise during implementation, agencies, organizations, and units are requested to promptly report to the Ministry of National Defense for consideration and coordinated resolution.