Decree No. 37/2017/NĐ-CP on Conditions for Operating Port Businesses

DECREE

VOn conditions for operating port exploitation

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Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Vietnam Maritime Code on December 8, 2015;

On the basis of The Investment Law on November 26, 2014 and the Law amending and supplementing Article 6 and Appendix 4 regarding the List of Business Fields Subject to Conditions under the Investment Law;

Pursuant to the Enterprise Law dated November 26, 2014;

At the proposal of the Minister of Transport;

The Government issues this Decree on conditions for operating port exploitation.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates conditions for operating port exploitation, including: sea ports, wharfs, bridges, mooring buoys, anchorage areas, transshipment zones, offshore oil terminals (hereinafter referred to collectively as sea ports).

Article 2. Applicability

This Decree applies to organizations and individuals involved in operating port exploitation activities in Vietnam.

Article 3. Explanation of Terms

In this Decree, the following terms shall be understood as follows:

1. Operating port exploitation is the direct exploitation of sea ports.

2. A port enterprise is an enterprise engaged in operating port exploitation.

Article 4. Principles of operating port exploitation

1. Port enterprises may only operate port exploitation after obtaining a Certificate of Eligibility for Operating Port Exploitation in accordance with this Decree.

2. Port enterprises must operate port exploitation in accordance with the declared purpose and function of the sea port.

3. Port enterprises must maintain all conditions prescribed in this Decree and other relevant laws during the period of operating port exploitation.

Chapter II

CONDITIONS FOR OPERATING PORT EXPLOITATION

1. Port enterprises must be established in accordance with the Enterprise Law.

2. In cases where foreign-invested port enterprises participate in cargo handling services, they can only establish joint ventures, with the proportion of foreign investment capital contribution in accordance with Vietnam's Commitment Table when joining the World Trade Organization (WTO).

1. Organizational structure conditions:

a) Having a department managing port exploitation operations;

b) Having a department managing maritime security in accordance with regulations;

c) Having a department or personnel responsible for safety and hygiene at work in accordance with regulations.

2. Human resource conditions:

a) The person in charge of the department managing port exploitation operations must have a university degree or higher in one of the following fields: maritime, economics, or trade, and have at least five years of experience in the business and exploitation of sea ports;

b) Port security officers must be trained, instructed, and certified according to the regulations of the Minister of Transport in compliance with the International Ship and Port Facility Security Code (ISPS Code);

c) The person in charge of safety and hygiene at work at the port must be trained, instructed, and certified in fire prevention and extinguishing, safety and hygiene at work according to regulations.

1. Ensuring sufficient infrastructure, warehouses, yards, and necessary equipment in accordance with national technical standards for sea ports; in cases where sea ports do not have sufficient warehouses and yards, port enterprises must have lease contracts for warehouses and yards with a minimum lease term of five years, except in cases where only buoy berths, anchorage areas, transshipment zones, and offshore oil terminals are operated.

2. Port enterprises must have all necessary loading and unloading equipment, specialized equipment, transportation means, and other required equipment to meet the needs of cargo handling and be consistent with the declared function and purpose of the sea port.

1. Having sufficient human resources and plans to ensure safety and labor hygiene in accordance with Decree No. 39/2016/NĐ-CP dated May 15, 2016 of the Government detailing the implementation of certain provisions of the Labor Safety and Hygiene Law and Decree No. 37/2016/NĐ-CP dated May 15, 2016 of the Government detailing and guiding the implementation of certain provisions of the Labor Safety and Hygiene Law regarding mandatory work injury and occupational disease insurance.

2. Meeting the conditions for fire prevention and firefighting safety, and having firefighting plans in accordance with Decree No. 79/2014/NĐ-CP dated July 31, 2014 of the Government detailing the implementation of certain provisions of the Fire Prevention and Fighting Law and the Law Amending and Supplementing Certain Provisions of the Fire Prevention and Fighting Law.

1. Ensuring sufficient facilities to receive and recover waste from vessels when operating at seaports for treatment in accordance with the International Convention for the Prevention of Pollution from Ships (MARPOL) to which Vietnam is a member.

2. Having complete environmental protection files for seaports that have been approved by competent authorities in accordance with the Environmental Protection Law and Decree No. 18/2015/NĐ-CP dated February 14, 2015 of the Government on environmental planning, strategic environmental assessment, environmental impact assessment, and environmental protection plans.

3. Ensuring sufficient human resources, systems, works, and equipment to manage and treat waste generated in the port area in accordance with Article 68 of the Environmental Protection Law.

Chapter III

 PROCEDURE FOR ISSUING THE BUSINESS CONDITION CERTIFICATE

FOR PORT OPERATIONS

Article 10. Procedure for Issuing the Business Condition Certificate for Port Operations

a) An application form for issuance of the Certificate according to Model No. 01 stipulated in the Appendix attached hereto;

b) Business Registration Certificate: Certified copy or copy with original for verification;

c) List of positions and labor contracts accompanied by certified copies or copies with original for verification of certificates according to the positions specified in Clause 2, Article 6 of this Decree;

d) The port operation plan of the port enterprise.

2. The Vietnam Maritime Administration receives the documents; if the documents are incomplete, within two working days from the date of receipt, the Vietnam Maritime Administration guides the enterprise to complete the documents in accordance with this Decree; if the documents are complete, it issues a receipt for the documents.

4. The contents of the Certificate shall be carried out according to Model No. 02 stipulated in the Appendix promulgated together with this Decree.

Article 11. Procedures for Reissuing the Certificate

1. The reissuance of the Certificate shall be carried out in cases where there is a change in the contents recorded in the Certificate or if the Certificate is lost or damaged.

3. The Vietnam Maritime Administration shall accept the documents; in case the documents are not valid, within two working days from the date of receiving the documents, the Vietnam Maritime Administration shall guide the port enterprise to complete the documents in accordance with this Decree; if the documents are valid, it shall issue a receipt for the documents.

5. When reissuing the Certificate, the Vietnam Maritime Administration must clearly record in the new Certificate the cancellation of the old Certificate.

Article 12. Revocation of the Business Operation Conditions Certificate for Port Operations

1. The Certificate shall be revoked in the following cases:

a) The port enterprise has violated business conditions as prescribed or upon the proposal of competent state agencies if it has been proven that the port enterprise has committed violations of the law to the extent that the Certificate must be revoked;

b) The port enterprise intentionally provides false information when implementing the procedures for issuing the Certificate;

c) Other cases as prescribed by law.

2. The Vietnam Maritime Administration shall issue a decision to revoke the issued Certificate and notify relevant agencies and at the same time publish information about the port enterprise whose Certificate has been revoked on the Vietnam Maritime Administration's electronic information website.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 13. Responsibilities of Relevant Agencies and Port Enterprises

1. The Ministry of Transport shall have the responsibility:

a) To uniformly manage state administration over port business operations in Vietnam;

b) To implement the application of information technology in management activities, evaluation, recognition of port business operation conditions, and management of related data;

c) To organize inspections, examinations, and handle violations of regulations on business operations and port business operation conditions as stipulated in this Decree and other relevant laws;

d) To organize the construction, supplementation, amendment, and issuance of national technical standards related to ports to ensure compatibility with the level of domestic and international technological development.

2. The Ministry of Natural Resources and Environment shall have the responsibility to lead and coordinate with the Ministry of Transport to provide specific guidance on environmental pollution prevention plans for ports as prescribed by law.

3. The Ministry of Public Security and the Ministry of National Defense shall have the responsibility to closely coordinate with the Ministry of Transport to provide specific guidance on fire prevention and explosion prevention plans, and port security plans for ports as prescribed by law.

4. Provincial People's Committees and municipal people's committees under the central government shall, based on their functions, tasks, and authorities as prescribed, have the responsibility to manage state administration over port activities operating within their jurisdiction as prescribed by law.

5. Port enterprises shall have the responsibility to comply with regulations on port business operation conditions stipulated in this Decree and other relevant laws; maintain business conditions during the course of operation.

Article 14. Effective Date

This Decree takes effect from July 1, 2017.

Article 15. Transitional Provisions

Port enterprises that have conducted port business operations before the effective date of this Decree shall continue to operate but must meet all conditions prescribed in this Decree from July 1, 2020.

Article 16. Implementation Organization

1. The Minister of Transport shall be responsible for chairing and coordinating with relevant ministries, sectors, and provincial People's Committees under central cities to implement this Decree.

2. Ministers, heads of ministerial-level agencies, heads of governmental agencies, Chairmen of provincial and municipal people's committees under the central government, and related organizations and individuals are responsible for enforcing this Decree./.