Nghị định 70/2016/NĐ-CP về điều kiện cung cấp dịch vụ bảo đảm an toàn hàng hải

THE GOVERNMENT

Decree No.70/2016/ND-CPdated July 01, 2016 of the Government on conditions for provision of maritime safety services

Pursuant to the Vietnam Maritime Code dated November 25, 2015;

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

Pursuant to theInvestmentLawdated November 26, 2014;

Pursuant to the Lawon Enterprises dated November 26, 2014;

At the request ofMinisterof Transport;

The Government promulgates a Decree to provide forconditions for provision of maritime safety services.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of adjustment

1.This Decree provides forconditions for provision of maritime safety services, consisting of:

a) Installation, operation and maintenance of aids to navigation, navigationalchannelsand sea lanes;

b)Noticesto mariners;

c) Survey activities in service ofNoticesto mariners;

d) Regulation of maritime safety assurance;

dd) Survey, preparation and issuance ofnautical charts of seaport waters,navigational channelsand sea lanes; formation and issuance of maritime safety publications and documents;

e) Electronic maritime information;

g) Maritime pilotage service;

h) Removal of obstructions to navigation;

i) Import of marine flares.

2.Other maritime safety services which are not prescribed in Clause 1 of this Article shall be governed by prevailing laws.

Article 2. Subject of application

ThisDecreeapplies toVietnamese and foreignorganizations and individuals thatget involved in maritime safety services inVietnam.

Article 3. Interpretation of terms

In thisDecree, the following terms are construed as follows:

1.Area where maritime pilotage is compulsory (hereinafter referred to as compulsory pilotage area) refers to a restricted area within a seaport waters area or an offshore oilfield, stretching from the area where a pilot boards or leaves a vessel to a wharf, harbor, anchoring area, transshipment area, storm shelter, shipbuilding and repairing plant or offshore petroleum depot and vice versa, where vessels must be steered by pilots in accordance with the Vietnam Maritime Code. A compulsory pilotage area includes one or several vessel navigation routes.

2. Vessel navigationroute refers to the itinerary routeofavessel steered byapilot fromapilot-receiving area toawharf, harbor, anchoring area, transshipment area, storm shelterorshipbuilding and repairing plant of a seaport oranoffshore oil depot within a compulsory pilotage area.

3.Electronic maritime information services include the construction, management and operation of maritime telecommunications network, and the provision of coastal information service and other communication and electronics services for the purpose of maintaining information regarding search and rescue activities, prevention of disasters, maritime safety and security, and protection of maritime environment.

4. Notice to marinersis adocument providinginformation andinstructions toseafarers and relevantentities for the purposes ofensuringthe maritime safetyandsecurity,andpreventingenvironmental pollution.

5.Marine flares are used in maritime safety, search and rescue activities, including handheld flares/torches and buoyant smoke signals which satisfy law regulations and relevant international treatiesto which Vietnam is a signatory.

Article 4. Rules forprovision of maritime safety services

1.Maritime safety service providers in Vietnam are allowed to carry out their operations only when they ensure the compliance with regulations in this Decree and other relevant law regulations.

2.Maritime safety services must be provided in conformity with law regulations, international treatiesto which Vietnam is a signatoryand actual condition of maritime operations in relevant regions.

Chapter II

CONDITIONS FOR PROVISION OF MARITIME SAFETY SERVICES

Section 1. CONDITIONS FOR PROVISION OFINSTALLATION, OPERATION AND MAINTENANCESERVICESOF AIDS TO NAVIGATION, NAVIGATIONAL CHANNELS AND SEA LANES

Article 5. Conditions for provision of installation, operation and maintenance services of aids to navigation,waters, publicnavigational channelsandsea lanes

A providerof installation, operation and maintenance services of aids to navigation, waters,public navigational channels and sea lanesmust satisfy all of the following conditions:

1.Must be anenterprise of which 100% charter capital is held by the State, and must be established and have its organizational and operational charter approved byMinisterof Transport.

2.Have a specialized division in charge ofinstallation, operation and maintenance of aids to navigation, waters, public navigational channels and sea lanes. The head of thisdivisionmust possess a bachelor s degree or higher in maritime assurance or irrigational works and have at least 05 years of experience in maritime safety assurance.

3.Facilities requirements:

a) 01wharfand 01 workshop for manufacturing and maintaining aids to navigation with appropriate equipment as regulated by Minister of Transport;

b) 01 specialized ship with appropriate features as regulated by Minister of Transport for the purpose of serving the installation, operation, maintenance, repair and supervision of consecutive operation of maritime signaling systems;

c) 01 navigational channel-managing station that meets requirements on management of operations on 01 publicnavigational channelroute.

Article 6. Conditions for provision of installation, operation and maintenance services of aids to navigation, waters,and dedicatednavigational channels

A provider of installation, operation and maintenance services of aids to navigation, waters and public navigational channels must satisfy all of the following conditions:

1.Must be an enterprise established under the law.

2.At least VND 20 billion is required when the enterprise is established and must be maintained during its operation.

3. Have a specialized division in charge of installation, operation and maintenance of aids to navigation, waters, anddedicatednavigational channels.The head ofthisdivision must possess a bachelor s degree or higher in maritime assurance or irrigational works and have at least 05 years of experience in maritime safety assurance.

4. Facilities requirements:

a) 01 wharf and01workshopfor manufacturing and maintaining aids to navigation,equipped with appropriate equipment as regulated by Minister of Transport;

b) 01 specialized shipwhich is owned or charteredwith appropriate features as regulated by Minister of Transport for the purpose of serving the installation, operation, maintenance, repair and supervision of consecutive operation of maritime signaling systems;

c) 01navigationalchannel-managing station that meets requirementsformanagement of operations on 01dedicatednavigational channel route.

Section 2. CONDITIONS FOR PROVISION OFSURVEYSERVICE TO SERVE THE ANNOUNCEMENT OFNOTICES TO MARINERS

Article 7. Conditions for provision ofsurveyservice of waters, publicnavigational channels and sea lanesto serve the announcement ofNotice to mariners

An enterprise providing surveyservice of waters, publicnavigational channels and sea lanesto serve the announcement ofNotice to marinersmust satisfy the following conditions:

1. Must be an enterprise of which 100% charter capital is held by the State; must beestablished and haveits organizational and operational charter approved by Minister of Transport.

2. Have a specialized division in charge ofcarrying out survey service of waters, publicnavigational channelsandsea lanes.The head of division in charge ofcarrying out survey service of waters, publicnavigational channelsandsea lanes must possess a bachelor s degree or higher in maritime assurance ortopographyand have at least 05 years of experience in marine survey.

3.Have at least 01 specialized ship as regulated byMinister of Transportin order to serve survey activities.

4. Havesufficient measurement and survey equipmentas regulated by Minister of Transport.

Article 8. Conditions for provision of survey service of watersand dedicatednavigational channels to serve the announcement of Notice to mariners

An enterprise providingsurvey service of watersand dedicatednavigational channels to serve the announcement of Notice to mariners must satisfy the following conditions:

1. Must be an enterprise established under the law.

2. At least VND 10 billion is required when the enterprise is established and maintained during its operation.

3. Have a specialized division in charge of carrying out survey service of watersand dedicatednavigational channels. The head of division in charge of carrying out survey service of watersand dedicatednavigational channels must possess a bachelor s degree or higher in maritime assurance or topography and have at least 05 years of experience in marine survey.

4.Have at least01 specialized ship which is owned or chartered with appropriate features as regulated by Minister of Transport for the purpose of servingsurvey activities.

5. Have sufficient measurement and survey equipment as regulated by Minister of Transport.

Section 3. CONDITIONS FOR PROVISION OF NOTICES TO MARINERSSERVICE

Article9. Notices to mariners

1. Notices to mariners consist of:

a)Notice to marinersrelating to aids to navigation: installation of new aid(s) to navigation, changes in operating features, suspension or termination of operations of aid(s) to navigation;

b)Notice to marinersrelating to technical specifications ofnavigational channels,watersin front of awharfand other waters;

c)Notice to marinersrelating to detected dangerous obstructions;

d)Notice to marinersrelating to areas where a structure is built on the sea or anavigational channel;

dd) Notice to mariners relating tounderwater works or works passing anavigational channel;

e)Notice to mariners relating to divergence of navigationalchannels,orrestriction of traffic or operation suspension of navigational channels;

g) Notice to mariners relating tosea areas where maritime activities are restricted or prohibited;

h) Notice to mariners relating to retransmitted informationand instructionalinformation related to maritime activities;

i)Notice to mariners relating tothe announcement ofsea lanesand traffic divergence within territorial waters of Vietnam.

2. Noticesto marinersservice providers shall provide types of notices mentioned in Pointsa, b, c, dand dd Clause 1 of this Article.

3.Maritime administration authoritiesshall provide types of notices mentioned in Pointse, gandhClause 1 of this Article.

4.Vietnam Maritime Administrationshall provide types of notices mentioned in PointiClause 1 of this Article.

Article10.Conditions to be satisfied byNoticesto marinersservice providers

A provider of Noticesto Mariners serviceas referred to in Clause 2 Article 9 of this Decree must satisfy the following conditions:

1. Must be an enterprise of which 100% charter capital is held by the State, and must be established and have its organizational and operational charter approved by Minister of Transport.

2. The head of Noticesto mariners division must possess a bachelor s degree or higher in maritime assurance or topography and have at least 05 years of experience inmaritime field.

3.Personnel must be available 24/7 in order to handle information and announceNoticesto mariners.

Section 4.CONDITIONS FOR PROVISION OF MARITIME SAFETY ASSURANCEREGULATORYSERVICES

Article 11. Conditions for provision ofregulatory service for assuring maritime safety within waters and publicnavigational channels

A provider ofregulatory service for assuring maritime safety within waters and public navigational channelsmust satisfy the following conditions:

1. Must be an enterprise of which 100% charter capital is held by the State, and must be established and have its organizational and operational charter approved by Minister of Transport.

2.Have a specialized division to regulate the maritime safety assurance. The head of division providing regulatory service for assuring maritime safetymust possess a bachelor s degree or higher in maritime assurance orvessel operationand have at least 05 years of experience inregulation ofmaritime safety assurance.

3. Have at least 01 specializedregulatory stationwith appropriatepersonnel to meet regulatory requirements for one work and have at least 02 canoes with appropriate featuresas regulated by Minister of Transportin order to serve the regulation of maritime safety assurance.

Article 12. Conditions for provision of regulatory service for assuring maritime safety within waters anddedicatednavigational channels

A provider of regulatory service for assuring maritime safety within waters anddedicatednavigational channels must satisfy the following conditions:

1. Must be an enterprise established under the law.

2.At least VND 20 billion is required when the enterprise is established and maintained during its operation.

3. Have a specialized division to regulate the maritime safety assurance. The head of division providing regulatory service for assuring maritime safety must possess a bachelor s degree or higher in maritime assurance or vessel operation and have at least 05 years of experience inregulation ofmaritime safety assurance.

4. Have at least 01 specialized regulatory station with appropriate personnel to meet regulatory requirements for one work and have at least 02 canoesowned or charteredwith appropriate features as regulated by Minister of Transport in order to serve the regulation of maritime safety assurance.

Section 5.SURVEY,PREPARATIONAND ISSUANCEOF NAUTICAL CHARTS OF SEAPORT WATERS, NAVIGATIONAL CHANNELS AND SEA LANES; FORMATION AND ISSUANCE OF MARITIME SAFETY PUBLICATIONS AND DOCUMENTS

Article 13. Organization and capital conditions

An enterprise providingsurvey, preparation and issuanceservicesof nautical charts of seaport waters, navigational channels and sea lanes; formation and issuanceservicesof maritime safety publications and documentsmust meet the following organization and capital conditions:

1. Must be an enterpriseestablished under the law,of which 100% charter capital is held by the State, and must be established and have its organizational and operational charter approved by Minister ofTransport.

2.Have obtained a license to carry out measurement and topographic activities as regulated.

Article 14. Personnel and facility conditions

An enterprise providing survey, preparation and issuance services of nautical charts of seaport waters, navigational channels and sea lanes; formation and issuance services of maritime safety publications and documents must meet the followingpersonnel and facilityconditions:

1.Have divisions in charge of running survey, preparation and issuance services ofnautical charts of seaport waters, navigational channels and sea lanes; formation and issuance services of maritime safety publications and documents.

2. Thepersonin charge ofeach sectormust possess a bachelor s degree or higher in maritime assurance or topography and have at least 05 years of experience in marine survey.

3. Have at least 01 specializedsurvey vessel in conformity with regulations adopted byMinister of Transport.

4. Have sufficient measurement andtopographicequipment as regulated by Minister of Transport.

Section 6. CONDITIONS FOR PROVISION OFELECTRONIC MARITIME INFORMATION SERVICE

Article 15. Organization and capitalconditions

An electronic maritime information service provider must meet the following organization and capital conditions:

1. Must be an enterprise established under the law, of which 100% charter capital is held by the State, and must be established and have its organizational and operational charter approved by Minister of Transport.

2.Have obtained a license to build up telecommunications network in order to provide relevant services as regulated.

Article 16. Personnel and facility conditions

A electronic maritime information service provider must meet the followingpersonnel and facilityconditions:

1. Have a specialized divisionin charge of providing electronic maritime information service.The head of divisionin charge of providing electronic maritime information servicemust possess a bachelor s degree or higher in maritimeinformation or telecommunication – electronics engineeringand have at least 05 years of experience in electronic maritime information.

2.Have qualified personnel for ensuring the 24/7 (24 hours a day, 7 days a week) provision of electronic maritime information in conformity with regulations of Vietnam’s law and international treatiesto which Vietnam is a signatory.

3.Take charge of managing national electronic maritime information infrastructures, including Vietnam’s GMDSS Coast Radio Stations,InmarsatLand Earth Stations(LES),Vietnam Local User Terminal/ Mission Control Center(VNLUT/MCC)and Long Range Identification and Tracking(VN LRIT).

Section 7. CONDITIONS FOR PROVISION OFMARITIME PILOTAGE SERVICE

Article 17. Organization and capital conditions

An enterprise providing maritime pilotage service must be established under the law and have75% charter capital held by the State.

Article 18. Personnel and facility conditions

An enterprise providingmaritimepilotage servicemust meet the following personnel and facility conditions:

1. Have a specialized divisionto providemaritimepilotage service.The head of this division must be an expert pilot and possess a bachelor s degree or higher.

2.Havecompulsory pilotage areaandvessel navigation routeassigned byVietnam Maritime Administration. Each enterprise may only provide maritime pilotage service to the only vessel navigation route.

3.Have sufficient number of pilots of various classes who must have operational area certificates granted in conformity with the assigned vessel navigation route, and have sufficient means for taking and returning pilots on the assigned vessel navigation route as regulated by Minister of Transport.

Article 19. Procedures for vessel navigation route assignment

1.Application dossiers for vessel navigation route assignment consist of:

a) The written request, using Form 01 1 stated in the Appendix herein;

b) The list of pilots, enclosed with the copies of certificate of qualification and operational area certificate of each pilot;

c) Declaration about means for taking pilots on board and returning them to land, enclosed with the copies of registration certificates of those means of transport.

2. Procedures for vessel navigation route assignment:

a) A maritime pilotage company shall, by hand or by post or under other form, submit the application dossiers prescribed in Clause 1 of Article toVietnam Maritime Administration;

b) If the application is directly submitted, Vietnam Maritime Administration shall receive the complete and valid application with a receipt note granted and give the applicant an appointment to return application processing result within a regulated period; the incomplete application shall be immediately returned to the applicant with specific instructions for completing such application;

c)If the application is submitted by post or under other form,Vietnam Maritime Administrationshall give a written request for application modification to the applicant within 02 working days from the receipt of such incomplete application;

d) Within 05 working days from the receipt of a valid and complete application,Vietnam Maritime Administrationshall appraise such application and ask for approval fromMinistry of Transport.Ministry of Transportshall give a written response within 03 working days from the receipt ofthe written request for approval fromVietnam Maritime Administration. If the application forvessel navigation route assignmentis rejected,Ministry of Transportshall specify its reasons in writing in order thatVietnam Maritime Administrationcan reply to the applicant;

dd) Within 03 working days from the receipt of awrittenapproval from Ministry of Transport,Vietnam Maritime Administrationshall assign vessel navigation route to the applicant which is the maritime pilotage company.

Section 8. CONDITIONS FOR PROVISION OFOBSTRUCTION REMOVAL SERVICE

Article 20. Organization and capital conditions

1.An enterprise providing obstruction removal service must beestablished under the law.

2. At least VND 05 billion is requiredat the enterprise’s establishment timeand maintained during its operation.

Article 21. Facility conditions

Facilities and equipment must be available in service of removal of obstructions to navigation and prevention of environmental pollution.

Section 9. CONDITIONSTO BE SATISFIED BY IMPORTERS OF MARINE FLARES

Article22. Conditions to be satisfied by importers of marine flares

An entity in demand of importing marine flares must meet all of the following conditions:

1. Must be an enterprise established under the law.

2. At least VND 02 billion is requiredat the enterprise’s establishment timeandmust bemaintained during its operation.

3.Have a certificate issued by a competent authority of the manufacturing country to certify that imported flares have been tested in conformity with regulations of the International Maritime Organization.

4.Have obtained a license to importmarine flares.

5.Perform all requirements on fire fighting and prevention in accordance with prevailing laws.

Article 23. Procedures for issuance oflicense to import marine flares

1.The application for issuance of alicense to import marine flaresconsists of the following documents:

a) The application form for a license to import marine flares, including types of flares, quantity, manufacturing country, product specifications/characteristics, and uses, code and expiry date of each type, and import period;

b) Certified translation ofcertificateof originissued by a competent authority of the manufacturing countrytocertify that imported flares have been tested in conformity with regulations of the International Maritime Organization;

c) The report made by the applicant on the licensed import of marine flares in the previous year and the import monitoring sheet given by Customs Sub-department at the checkpoint (if any).

2.Licensing procedures:

a)The entity in demand of importing marine flaresshall, by hand or by post or under other form, submit the application dossiersasprescribed in Clause 1 of Article to Ministry of Transport;

b) If the application is directly submitted, the complete and valid applicationshall be receivedwith a receipt note granted and the applicantshall be givenan appointment toreceive theapplication processing result within a regulated period; the incomplete application shall be immediately returned to the applicant with specific instructionsgivenfor completing such application;

c) If the application is submitted by post or under other form, Ministry of Transport shall give a written request for application modification to the applicant within 02 working days from the receipt ofan incompleteapplication;

d) Within 02 working days from the receipt of a valid and complete application, Ministry of Transportshall send written request to ask for opinions ofMinistry of National DefenceandMinistry of Public Security;

dd) Ministry of National Defence and Ministry of Public Securitymust give written response within 05 working days from the receipt ofwritten request for opinions sent byMinistry of Transport. Over the said time-limit,if Ministry of National Defence and Ministry of Public Security do not give written response, it is considered that they have approved of contents specified in the written request for opinions sent byMinistry of Transport;

e)Within 05 working days from the receipt of written opinions given byMinistry of National Defence and Ministry of Public Security,Ministry of Transportshall issue license to import marine flares according to Form No. 02 stated in the Appendix herein; if the application is rejected,Ministry of Transportshall specify reasons in writing.

3. Ministry of Transportshall not grant license to import marine flares whose expiry date is past or those with unclear origin.

Chapter III

IMPLEMENTATION ORGANIZATION

Article 24. Effect

1.This Decree takes effect on July 01, 2017 but regulations on conditions for import of marine flares shall take effect as of July 01, 2016.

2.The following decrees and regulations are abrogated:

a) The Government’s Decree No.173/2007/ND-CPdated November 28, 2007 providing for maritime pilotage organization and operation;

b) The Government’s Decree No. 49/2011/ND-CP datedJune 21, 2011 on amendments to certain articles of the Government’s Decree No.173/2007/ND-CPdated November 28, 2007providing for maritime pilotage organization and operation;

c)Ministry of Transport’s regulations on licensing procedures stated in Section II (List of goods imported/ exported under license and subject to the specializedmanagementbyMinistry of Transport) of Appendix II (List of goods imported/ exported under license and subject to the specializedmanagement) enclosed to the Government’s Decree No.187/2013/ND-CPdated November 20, 2013 elaborating the implementation of the Commercial Law with regard of international trade in goods and agencies sale, purchase, processing andin transitof goods for foreign principals.

Article 25. Transitional clause

Enterprises running maritime safety services before the effective date of this Decree may keep their operations alive but they must satisfy all conditions prescribed in this Decree within 02 years from the date on which this Decree takes force.

Article 26. Implementation responsibilities

1. Ministerof Transportshall be responsible for promulgating regulations, national technical regulations, economic – technical norms in service of provision of maritime safety services; providing guidelines, and presiding over and/or coordinating with relevant ministries/regulatory bodies and people s committees ofcentral-affiliated citiesor provinces to implement this Decree.

2.Ministers, heads of ministerial-level agencies, heads of the Government’s affiliates, Chairpersons of people s committees ofcentral-affiliated citiesor provinces shall be responsible for implementing this Decree./.

For the Government

The Prime Minister

Nguyen Xuan Phuc