Circular No. 37/2013/TT-BGTVT on dredging and maintenance of inland waterway channels, port waters, and inland waterway wharfs combined with product recovery to offset dredging costs

CIRCULAR

Provisions on dredging inland waterway channels, port waters,

inland waterway wharves combined with product recovery

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Pursuant to the Law on Inland Waterway Transport No. 23/2004/QH11 dated June 25, 2004;

Pursuant to the Government's Decree No. 21/2005/NĐ-CP dated March 1, 2005 detailing the implementation of certain provisions of the Law on 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;

Pursuant to Decree No. 114/2010/NĐ-CP dated December 6, 2010 of the Government on maintenance of construction works;

Pursuant to the Prime Minister's Directive No. 29/2008/CT-TTg dated October 2, 2008 on further strengthening state management over activities related to surveying, exploitation, transportation, and consumption of sand and gravel from riverbeds;

At the proposal of the Director of the Infrastructure Department and the Director of the Vietnam Inland Waterway Administration;

The Minister of Transport hereby issues this Circular stipulating the dredging of inland waterway channels, port waters, and inland waterway wharf areas combined with product recovery,

Article 1. Scope of Regulation and Applicability

1. This Circular stipulates the dredging of inland waterway channels, port waters, and inland waterway wharf areas combined with product recovery.

2. This Circular applies to organizations and individuals within Vietnam and abroad, and relevant state management agencies involved in the dredging of inland waterway channels, port waters, and inland waterway wharf areas combined with product recovery, excluding those using state budget funds.

Article 2. Interpretation of Terms

In this Circular, the following terms are understood as follows:

1. State management agency for inland waterway transport: is the Ministry of Transport for national inland waterway transport management; and the People's Committee of provinces and centrally governed cities for local inland waterway transport management (referred to as provincial People's Committee).

2. Inland waterway transport management agency: is the agency responsible for specialized state management functions in inland waterway transport, including: specialized agencies under the Ministry of Transport such as the Vietnam Inland Waterway Administration, and specialized departments under provincial People's Committees such as the Department of Transport.

3. Regional inland waterway transport management agency: is the subordinate agency directly under the inland waterway transport management agency.

4. Maintenance unit of inland waterway transport works: are organizations and individuals directly implementing maintenance of inland waterway transport works.

5. Routine dredging of inland waterway channels, port waters, and inland waterway wharfs: is dredging to ensure current technical standards.

6. Upgraded dredging of inland waterway channels, port waters, and inland waterway wharfs: is dredging according to higher technical standards.

Article 3. Establishment of List of Works for Dredging Combined with Product Recovery

1. The State prioritizes and encourages investors to participate in dredging of inland waterway channels, port waters, and inland waterway wharfs combined with product recovery without using state budget funds, in accordance with legal regulations, ensuring harmony between the interests of the State and investors.

2. The inland waterway transport management agency bases on approved planning, technical grade, current status of inland waterway channels, port waters, and inland waterway wharfs to organize the establishment of a list of projects (works) for investment in dredging combined with product recovery without using state budget funds on inland waterway routes, submitting it to the state management agency for inland waterway transport for review and approval before September 30 each year.

3. The list of projects (works) must include the following main contents:

a) Project name;

b) Project objectives;

c) Project location;

d) Summary of key technical parameters, design criteria of the work, estimated dredging volume; implementation time.

4. The state management agency for inland waterway transport reviews and approves the list of projects (works) for investment in dredging combined with product recovery without using state budget funds for inland waterway routes and port waters, inland waterway wharfs.

For the list of projects on national inland waterway channels and port waters, the Ministry of Transport shall seek opinions from the provincial People's Committee where the project passes through before making a decision.

5. The approved list of projects (works) may be amended or supplemented if there are changes in planning or the current status of inland waterway channels and port waters, or if plans have been approved for implementation using other sources of funding.

Article 4. Publication of Project List

1. The project list (construction works) shall be published on the electronic information page of the state management agency for inland waterways and the inland waterway management agency within five working days from the date the project list is approved (including amended and supplemented project lists).

2. The published project list must include the main contents prescribed in Clause 3, Article 3 of this Circular.

Article 5. Registration to Implement Projects

1. Investors may register to implement projects included in the published project list or projects not yet included in the published list.

2. The registration dossier includes:

a) A project implementation registration document according to the model specified in Appendix No. 1 of this Circular, providing a general overview of the project's information: project name, construction work name, location, site, scope, necessity, implementation form, expected implementation time, and other relevant contents;

b) Legal documents of the investor (Business Registration Certificate or Investment Certificate and related documents proving the investor’s capacity such as contracts, joint ventures, joint operations);

c) Financial, technical, and experience capability documents of the investor. The most recent three-year financial reports consecutively confirmed by the competent authority (auditing agency, tax agency, or finance agency) or a financial commitment document for implementing the project;

d) Implementation capability documents of similar projects by the investor (if available).

Article 6. Approval of Investors to Implement Projects

1. Investors submit one set of project implementation registration documents in accordance with Clause 2, Article 5 of this Circular through postal service or directly at the state management agency for inland waterways.

2. The state management agency for inland waterways is responsible for:

a) Receiving the documents; in cases where the documents are unclear or incomplete according to regulations, they must provide a written response to the investor within two working days at the latest;

b) In cases where one investor registers to implement one project, they must issue a written approval for the proposed investor to implement the project within ten working days from the date of receiving complete documents according to regulations;

c) In cases where two or more investors register to implement one project, they must organize an assessment of legal factors, financial capacity, technical capacity, and implementation experience within twenty working days from the date of receiving the first complete set of documents according to regulations, and issue a written approval for the proposed investor to implement the project;

d) Provide a written response stating the reasons for investors who are not approved to implement the project.

Article 7. Project Proposal Documents

Within forty-five days from the date of receiving the approval document for implementing the project from the state management agency for inland waterways, the investor is responsible for conducting surveys, preparing, and submitting one set of project proposal documents to the inland waterway management agency. The project proposal implementation documents include:

1. A document requesting approval of the project proposal.

2. The proposed project plan including the following main contents:

a) Purpose of using by-products obtained during dredging;

b) Determination of construction location, scale, scope; determination of dredging volume according to the design standard that has been published or analysis and proposal of technical parameters, construction standards;

c) Construction methods, construction sequence, implementation plan and progress schedule; quality control and progress monitoring measures;

d) Safety assurance plans for inland waterway traffic, labor safety, environmental protection, fire prevention and control in accordance with the law;

e) Preliminary determination of total investment capital of the project and the implementation period;

3. Design drawings: overall layout plan (topographic survey map, channel route or water area; equipment assembly location, by-product assembly location...); plan view of the dredging area; detailed cross-section drawing of dredging; channel edge coordinates, water area before the wharf at the cross-section, and other related drawings;

4. Commitment document for project implementation including commitments regarding personnel and equipment allocation to ensure project progress and quality and resolution of consequences if the project is not implemented as prescribed;

5. Financial guarantee or assurance for project implementation as appropriate;

6. Other necessary documents for explaining the project proposal implementation documents (if any).

Article 8. Approval of Project Proposal Documents

1. The inland waterway management agency shall accept project proposal documents; in cases where the documents are not clear or complete as required, it shall guide the investor to perfect the documents.

2. Within the latest fifteen working days from the date of receipt of all required documents, the inland waterway management agency shall review the legal factors, financial capacity, technical capability, experience in implementing the project, and approve the project proposal document of the investor according to the model specified in Appendix No. 2 of this Circular. In case of non-approval, a written response must be provided, clearly stating the reasons.

Article 9. Negotiation, Signing, and Amendment of Project Contracts

1. Based on the Decision approving the project proposal document issued by the inland waterway management agency and the environmental impact assessment document approved in accordance with Decree No. 29/2011/NĐ-CP dated April 28, 2011 of the Government, the inland waterway management agency shall organize negotiations and sign contracts for implementing the project with the selected investor. The negotiation and signing of the project implementation contract with the investor shall comply with current laws, including the following main contents:

a) Information of the parties in the contract;

b) Information about the project: Project name, construction works name, location, site;

c) Scope and design standards;

d) Estimated dredging volume;

e) Measures, procedures, plans for implementation and construction schedule;

g) Plan to ensure safety of inland waterway traffic, labor safety, fire prevention and firefighting in accordance with the law;

h) Registration of by-product products and supervision of by-product products during the implementation of the project in accordance with the guidance of the General Department of Geology and Minerals, Ministry of Natural Resources and Environment;

i) Inspection, supervision, acceptance, transfer methods, and reception of works after completion;

k) Measures to handle violations during the implementation of the project.

2. The term of the project implementation contract shall be agreed upon by the parties in accordance with the published list, volume, equipment, dredging facilities, traffic safety assurance, by-product recovery, and other related conditions. The term of the project implementation contract may be extended or shortened according to the conditions stipulated in the project implementation contract.

3. Amendments to the conditions agreed upon in the project implementation contract shall only be considered in the following cases:

a) The project is affected by natural disasters or other force majeure events;

b) New factors emerge that bring higher efficiency to the project;

c) When planning changes directly affect the location, scale, nature, and objectives of the project;

d) Other cases agreed upon in the signed project implementation contract. The investor must notify the inland waterway management agency of the changes needed for negotiation and adjustment of the project implementation contract after receiving approval for the adjustment from the competent state management agency.

Article 10. Related Costs for Implementing the Project

1. Costs for preparing and publishing the project list, conducting inspections, and supervisions within the authority of the state agencies and funded from the state budget in accordance with the guidelines of the Ministry of Finance.

2. Survey costs, preparation of project documents, implementation of dredging, consulting supervision, remediation of incidents, acceptance and handover upon completion, and other related costs for implementing the project shall be borne by the investor in accordance with the decision approving the project.

Article 11. Guaranteeing the Obligation to Fulfill the Project Contract

1. The guarantee for the obligation to fulfill the project contract shall be implemented in the form of bank guarantee or other forms of guarantee as prescribed by law, with the amount of guarantee not being less than 5% of the total investment capital of the project.

2. The guarantee for the obligation to fulfill the project contract shall be effective from the date the project implementation contract is officially signed until the completion of the works. The investor shall not be entitled to reclaim the performance guarantee in case of refusal to fulfill the contract after the project contract becomes effective.

Article 12. Organization of Implementation, Management, and Supervision of the Project

1. The inland waterway management agency shall be responsible for:

a) Organizing the approval of the plan to ensure the safety of inland waterways, handing over boundary markers, and construction sites according to the approved project;

b) Directing the inland waterway management agencies in regions and units maintaining inland waterways to inspect and supervise the implementation process of the project in accordance with regulations;

c) Taking the lead and coordinating with investors to select consulting supervision units meeting the conditions to supervise the implementation process of the project in accordance with regulations on investment and construction management and current laws;

d) Organizing the supervision and evaluation of the investor's compliance with obligations regarding the scale, technical standards, quality of works, progress, environmental protection, fire prevention, firefighting, and other issues agreed upon in the project contract;

e) Conducting regular and spot checks on the implementation work of investors, supervising consultants, regional inland waterway management agencies, and maintenance units;

f) Reporting quarterly to the state management agency for inland waterways on the results of implementation and proposals to resolve difficulties and issues related to adjustments and termination of the project implementation;

2. Before commencing construction, the investor shall be responsible for:

a) Completing all procedures concerning resources, environment, and other relevant procedures as prescribed by law;

b) Preparing a traffic control plan to ensure inland waterway traffic and submitting it to the inland waterway management agency for approval in accordance with regulations;

c) Signing a contract with construction supervision consultants;

d) Notifying the time of construction, number of equipment and personnel (names of related units, regional inland waterway management agencies);

e) Inspecting and confirming the riverbank status with local authorities before dredging inland waterways, port waters, and inland waterway wharfs;

3. During the implementation process, the investor shall be responsible for:

a) Organizing the acceptance of boundary markers and construction sites for dredging and maintenance handed over according to the decision of the competent authority; resurveying the area handed over before construction;

b) Organizing construction, inspection, and handover of individual items and the entire project in accordance with the approved project dossier and applicable laws;

c) Implementing the contents of the approved project and signed contracts accurately;

d) Fully implementing regulations on environmental protection according to the approved environmental impact assessment dossier, ensuring inland waterway safety during construction; tax, fee, and financial obligations as prescribed by law;

e) Reporting periodically (monthly and quarterly) on the situation and results of project implementation to the inland waterway management agency and regional inland waterway management units;

4. Regional inland waterway management agencies shall be responsible for:

a) Leading and coordinating with related agencies and units to guide and supervise the implementation process of the investor's project in accordance with the approved project content and relevant laws;

b) Requesting the investor to install and adjust inland waterway navigation aids in the construction area according to the approved plan;

c) Promptly reflecting the implementation situation and changes during construction compared to the approved project dossier to the superior management agency;

d) Reporting periodically (monthly and quarterly) on the results of the investor's and consultant's project implementation to the inland waterway management agency;

5. Consulting supervision organizations shall be responsible for:

a) Performing the function of supervising the construction process of the investor's project in accordance with the approved content and Construction Site Supervision Consultant Regulation issued together with Decision No. 22/2008/QĐ-BGTVT dated October 20, 2008, by the Minister of Transport;

b) Cooperating with specialized agencies at the local level in verifying the volume of products from dredging recovery by the investor;

c) Reporting periodically (monthly and quarterly) on the results of the investor's and consultant's project implementation to the inland waterway management agency;

6. The provincial People's Committee (for projects on national inland waterway channels, port waters, and inland waterway wharfs) shall be responsible for:

Directing the local resource and environmental management agencies to register the volume of recovered products from dredging in accordance with Clause 3 of Directive No. 29/2008/CT-TTg dated October 2, 2008, of the Prime Minister on further strengthening state management over surveying, extraction, transportation, and consumption of sand and gravel from riverbeds; coordinating with inland waterway management agencies to supervise the investor's compliance with obligations in project implementation (dredging locations, dredged products).

Article 13. Termination of project contract

1. The project contract shall terminate prematurely due to the fault of one of the parties in violation of the contract without effective remedial measures, due to force majeure events, or other cases stipulated in the project contract.

2. The parties shall agree in the project contract on the conditions for terminating the contract and the measures to be taken when the contract terminates prematurely in the cases provided for in Clause 1 of this Article.

Article 14. Completion and handover of the project

1. After the completion of the project, the investor shall be responsible for preparing the completion dossier, reporting to the inland waterway management agency, and organizing surveys and acceptance inspections for the completion and putting the works into operation; handing over the works back to the inland waterway management agency according to regulations.

2. The inland waterway management agency shall be responsible for:

a) Accepting the results of dredging implementation and completing the procedures to terminate the project contract according to regulations. The acceptance team includes representatives from the state management agency for inland waterways, the inland waterway management agency, the regional inland waterway management agency, the inland waterway maintenance unit, and related agencies or units selected by the inland waterway management agency; conducting handover procedures to the operating management unit after the completion of the project according to regulations;

b) Summarizing and evaluating the results of the project implementation; proposing handling measures for units that fail to complete the approved project proposal or signed project contract as required.

3. The regional inland waterway management agency shall accept and manage, operate, and exploit the works after the completion of the project.

Article 15. Handling Violations

1. Organizations and individuals violating the law in the activities of dredging and maintaining inland waterway channels, port waters, and inland waterway wharfs through a combined method of product recovery to offset dredging costs without using state budget funds, in addition to being subject to administrative penalties under current regulations, must also bear one of the following handling measures:

a) Cease consideration and approval of projects for intentional failure to supplement documents and proposals upon request.

b) Terminate the implementation of the project in the following cases:

Within sixty days from the date the inland waterway management agency issues the Decision approving the project, if the investor intentionally does not negotiate and sign the contract to implement the project, except in cases with legitimate reasons approved by the state management agency for inland waterways.

Or within three months from the date the inland waterway management agency issues the Decision approving the project, if the investor does not implement the project or delays its implementation without legitimate reasons.

c) Prohibition from participating in dredging maintenance projects and other projects initiated by the state management agency for inland waterways as the investor for a period of six to thirty-six months for organizations and individuals violating the provisions of Clause 2 of Article 12 and Clause 1 of Article 14 of this Circular causing serious consequences.

2. The inland waterway management agency shall be responsible for organizing the assessment of the level of violation by the investor and proposing handling measures according to Clause 1 of this Article, submitting it to the state management agency for inland waterways for review and decision.

Article 16. Effective Date

1. This Circular takes effect from January 1, 2014.

2. Investors approved to implement projects before the date this Circular takes effect shall continue to implement according to the provisions of the approval or approval document issued by the competent state agency.

3. Projects that have made investment selection decisions before the date this Circular takes effect shall not need to reselect investors according to this Circular.

Article 17. Implementation Organization

1. The Director of the Ministry's Office, the Inspector General of the Ministry, the Heads of Departments under the Ministry, the Director of the Vietnam Inland Waterway Administration, the Directors of Provincial and Municipal Transport Departments directly under the Central Government, and relevant agencies, organizations, and individuals are responsible for implementing this Circular.

2. During the implementation process, if there are difficulties, agencies, organizations, and individuals are requested to reflect them to the Ministry of Transport for review and resolution./.