Circular No. 28/2015/TT-BGTVT amending and supplementing certain Articles of Circular No. 25/2013/TT-BGTVT dated August 29, 2013, issued by the Minister of Transport on the procedures and formalities for dredging maritime channels, areas, and zones within port waters combined with product recovery without using state budget funds and state management over maritime activities related to mineral exploration and exploitation within port waters and maritime channels.

CIRCULAR

Amending and supplementing some articles of Circular No. 25/2013/TT-BGTVT dated August 29, 2013 issued by the Minister of Transport on the procedures and formalities for implementing dredging of maritime channels, areas, and zones within port water areas combined with product recovery without using state budget funds and state management over maritime activities related to mineral exploration and exploitation within port water areas and maritime channels.

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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;

Pursuant to Decree No. 21/2012/NĐ-CP dated March 21, 2012 of the Government on management of seaports and maritime channels;

At the proposal of the Director of the Infrastructure Department and the Director of the Vietnam Maritime Administration,

The Minister of Transport issues this Circular amending and supplementing some articles of Circular No. 25/2013/TT-BGTVT dated August 29, 2013 issued by the Minister of Transport on the procedures and formalities for implementing dredging of maritime channels, areas, and zones within port water areas combined with product recovery without using state budget funds and state management over maritime activities related to mineral exploration and exploitation within port water areas and maritime channels (hereinafter referred to as Circular No. 25/2013/TT-BGTVT).

Article 1. Amending and supplementing some articles of Circular No. 25/2013/TT-BGTVT

1. Amend and supplement Point b Clause 2 Article 4 as follows:

"b) Procedure for receiving and processing files:

- The Vietnam Maritime Administration receives and checks the files:

+ In cases where the files are submitted directly, if the files comply with the regulations, issue a receipt for the files and set a date for delivering the results within the prescribed time limit; if the files do not comply with the regulations, return them immediately and guide the investor to complete the files.

+ In cases where the files are received through the postal service, if the files do not comply with the regulations, within two working days from the date of receipt of the files, issue a document guiding the investor to complete the files.

- For projects included in the published project list:

+ Within three working days from the date of receipt of the files in accordance with the regulations, the Vietnam Maritime Administration must assess the investor's capacity according to Model No. 03 attached to this Circular, report to the Ministry of Transport. If the deadline is exceeded but the Vietnam Maritime Administration does not issue a report, the Ministry of Transport will consider and resolve based on the investor's proposal.

+ Within three working days from the date of receipt of the document from the Vietnam Maritime Administration, the Ministry of Transport considers and approves the investor's registration to implement the project; if it does not approve, it must specify the reasons. Within three working days from the date of receipt of the document from the Ministry of Transport, the Vietnam Maritime Administration issues a document responding to the investor regarding the approval of the project registration.
- For projects not included in the published project list:

+ Within three working days from the date of receipt of the files in accordance with the regulations, the Vietnam Maritime Administration examines the necessity of implementing the project and assesses the investor's capacity according to Model No. 03 attached to this Circular, reports to the Ministry of Transport for approval to include the project in the list, approval of the project registration, and adjustment of the annual budget-funded dredging plan (if necessary). If the deadline is exceeded but the Vietnam Maritime Administration does not issue a report, the Ministry of Transport will consider and resolve based on the investor's proposal.

+ Within three working days from the date of receipt of the document from the Vietnam Maritime Administration, the Ministry of Transport seeks opinions from the People's Committee of the province or centrally administered city where the project passes through.

+ Within five working days from the date of receipt of the document from the People's Committee of the province or centrally administered city or at the end of the deadline without receiving a document with comments, the Ministry of Transport considers and decides to include the project in the list of encouraged socialized projects combining dredging and product recovery without using state budget funds, approves the project registration, and adjusts the annual budget-funded dredging plan (if necessary); if it does not approve, it must issue a document to the Vietnam Maritime Administration specifying the reasons.

+ Within three working days from the date of receipt of the document from the Ministry of Transport, the Vietnam Maritime Administration issues a document responding to the investor.

2. Amending and supplementing Clause 1, Clause 3, and Clause 4 of Article 5 as follows:

"1. Within 60 days from the date of receipt of the Vietnam Maritime Administration's document approving the project registration from the Ministry of Transport, the investor submits one set of project implementation proposal files to the Vietnam Maritime Administration. The investor may conduct surveys and prepare the project implementation proposal files themselves if they have the necessary consulting and design qualifications or select a qualified consulting organization in accordance with the law."
"3. Procedure for receiving and processing project implementation proposal files

a) The Vietnam Maritime Administration receives and checks the project implementation proposal files in accordance with Clause 2 of this Article, issues a receipt for the files, and sets a date for delivering the results (if the files are submitted directly). If the files do not comply with the regulations in Clause 2 of this Article, within two working days from the date of receipt of the files, the Vietnam Maritime Administration issues a document guiding the investor to supplement the files fully, with a maximum supplementation period of ten days from the date of receipt of the Vietnam Maritime Administration's document requesting supplementation.

b) Within five working days from the date of receipt of the compliant files, the Vietnam Maritime Administration must review and evaluate the project implementation proposal files, report to the Ministry of Transport for consideration and approval or termination of the project registration."
"4. Within three working days from the date of receipt of the files in accordance with the Vietnam Maritime Administration's regulations, the Ministry of Transport issues a document approving the investor's project implementation proposal files; if it does not approve, it must respond in writing and specify the reasons."

3. Amending and supplementing Point a Clause 1 of Article 6 as follows:

"a) Within ten working days from the date the Ministry of Transport issues a document approving the project implementation proposal files, the Vietnam Maritime Administration issues a document approving the project implementation. Within fifteen working days from the date of project approval, the Vietnam Maritime Administration organizes negotiations on the project contract contents with the selected investor."

4. Amending and supplementing Clause 2 of Article 6 as follows:

"2. Within fifteen working days from the date of completing negotiations for the project contract with the investor, the Vietnam Maritime Administration shall organize the signing of the contract and send one copy of the signed contract to the Ministry of Transport, and one copy to the People's Committee of the province or centrally governed city where the project is implemented for coordination in management and supervision."

5. Amend Article 8 as follows:

"Article 8. Ensuring the Implementation of Project Contracts"
"1. Measures to ensure the implementation of project contracts shall be applied in the form of bank guarantees or other forms of security as prescribed by law. The ratio of security for the implementation of project contracts is three percent of the total investment amount of the project according to the signed project contract."
"2. Within ten working days from the date of signing the project contract, the investor must submit to the Vietnam Maritime Administration a document reflecting the measures to ensure the implementation of the contract. This security shall be effective from the date the contract becomes effective until the parties complete their obligations under the contract or the date when warranty obligations commence if there are provisions on warranty. In cases requiring an extension of the contract performance period, the investor must extend the corresponding validity period of the security for the implementation of the contract accordingly."

"In cases of joint ventures, the following methods must be implemented to ensure the implementation of the project contract:"
"a) Each member of the joint venture will separately implement the security for the implementation of the project contract corresponding to the workload they undertake within the joint venture;"
"b) Members of the joint venture may agree that one member will be responsible for implementing the security for the implementation of the project contract for the entire joint venture."
"3. The security for the implementation of the project contract shall be deemed invalid in any of the following cases:"
a) Its value is lower than that stipulated in Clause 1 of this Article;
"b) The duration of effectiveness is shorter than the duration of effectiveness of the project contract;"
c) It does not match the name of the project; the name of the investor or the name of the consortium implementing the project;
"d) It is not an original document or does not have a valid signature."

"In these cases, if the investor fails to supplement or complete the security for the implementation of the project when requested, the proposal for implementing the project shall be determined as invalid and excluded."
"4. An investor who is approved to terminate the project contract without fault shall be refunded the security for the implementation of the project contract within fifteen working days from the date the termination document of the project contract becomes effective, except in the case provided for in Clause 5 of this Article."
"5. The investor shall not be refunded the security for the implementation of the contract in the following cases:"
"a) Refusing to perform the contract when it has become effective;"
"b) Violating the agreement in the contract;"
"c) Performing the contract behind schedule due to their own fault but refusing to extend the validity period of the security for the implementation of the contract;"

"d) In cases where the investor is a joint venture, if one member of the joint venture violates the contract, all members of the joint venture shall not be entitled to receive back the security for the implementation of the contract."

"6. Amend Point b Clause 1 Article 9 as follows:"

"b) Direct the Marine Port Control Units to approve the safety assurance plan and organize inspections and supervision of the project implementation process in accordance with Decree No. 21/2012/ND-CP, Circular No. 10/2013/TT-BGTVT dated May 8, 2013 issued by the Minister of Transport guiding the implementation of certain provisions of Decree No. 21/2012/ND-CP and relevant laws."

"7. Amend and supplement Point a Clause 2 Article 9 as follows:"

"a) Before commencing construction:"

"- Completing all procedures related to environmental protection, fire prevention and fighting, oil spill prevention and response, and other related procedures as prescribed by law;"

"- Preparing the maritime safety assurance plan according to Model No. 04 attached to this Circular and submitting it to the Marine Port Control Unit for approval in accordance with Article 14 of Decree No. 21/2012/ND-CP. In the application dossier for approving the maritime safety assurance plan, the investor shall submit a copy of the document approving the registration of the project implementation instead of a copy of the decision to construct the project. Within three working days from the date of receiving the request for comments from the Marine Port Control Unit, the agency or unit being consulted must provide a reply. If the deadline expires without receiving a comment from the agencies, the Marine Port Control Unit must approve the maritime safety assurance plan according to its authority."

"- Selecting and signing a contract with an independent supervisory consultant with the appropriate capacity to monitor the project implementation process in compliance with the law and guidance from the Vietnam Maritime Administration;"

"- In cases where the project involves dumping mud and dredged soil in port water areas and Vietnamese waters, a monitoring system for dredging must be installed on the transport vessel carrying the mud and dredged soil in accordance with Circular No. 28/2014/TT-BGTVT dated July 29, 2014 issued by the Minister of Transport regarding the procedures and formalities for dredging and maintaining shipping channels managed and used by the Ministry of Transport from state budget funds, and relevant laws, ensuring strict and serious monitoring of soil dumping at the approved location."

"8. Add Article 11a after Article 11 as follows:"

"Article 11a. Responsibilities of the People's Committees of Provinces and Centrally Governed Cities"
"1. Not to plan for sand and gravel exploration and exploitation in areas designated for dredging and maintenance of shipping channels and water areas within port waters that have been approved by competent authorities."
"2. To implement procedures for registering the volume of by-products of dredging and channel maintenance projects in port waters in accordance with the investor's proposals and relevant laws."

"3. To direct subordinate agencies to cooperate with the Vietnam Maritime Administration, Marine Port Control Units, and relevant agencies to regularly inspect dredging and channel maintenance activities in port waters; to coordinate in handling violations during project implementation and illegal sand extraction activities in accordance with regulations."

"9. Amend and supplement Points a and b Clause 1 Article 13 as follows:"

"a) Stop considering and approving project implementation proposals in the following cases:"

- After sixty days from the date of receipt of the reply document from the Vietnam Maritime Administration regarding approval for registration to implement the project, if the investor does not submit the proposal implementation dossier to the Vietnam Maritime Administration;

- After ten days from the date of receipt of the request document from the Vietnam Maritime Administration, if the investor does not supplement the proposal dossier as prescribed;
b) Terminate the implementation of the project in the following cases:

- After ten working days from the date the Vietnam Maritime Administration notifies the time for organizing the signing of the project contract, but the investor does not participate in signing the project contract;

- After ten working days from the date of signing the project contract, the investor does not submit to the Vietnam Maritime Administration a document demonstrating measures to ensure contract performance;

- After eight months from the date the Ministry of Transport issues a document approving the content of the proposal implementation dossier, if the investor does not implement the project or delays implementation without a legitimate reason approved by the Ministry of Transport."

10. Amend and supplement Clause 2 of Article 14 as follows:

"2. This Circular shall be accompanied by one Appendix containing four Model Documents."

Article 2. Supplement Model Number 03 and Model Number 04 issued together with this Circular to the Appendix issued together with Circular No. 25/2013/TT-BGTVT.

Article 3. Repeal the provisions at Clause 3 of Article 4 and Point e of Clause 2 of Article 5 of Circular No. 25/2013/TT-BGTVT.

Article 4. Effective date

This Circular takes effect from August 15, 2015.

State-owned enterprises that have been assigned by the Ministry of Agriculture and Rural Development to conduct offshore wind power project surveys before the effective date of this Circular shall continue to implement according to the assigned documents; any new matters arising after the effective date of this Circular shall be implemented in accordance with the provisions of this Circular.

The Director of the Ministry's Office, the Inspector General of the Ministry, the Heads of Departments, the Director of the Vietnam Maritime Administration, and the Heads of agencies, organizations, and individuals concerned are responsible for implementing this Circular./.