Nghị định 147/2018/NĐ-CP sửa đổi, bổ sung các Nghị định về điều kiện kinh doanh trong lĩnh vực hàng hải

DECREE

Amending and supplementing some articles of Decrees regulating maritime business conditions

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

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

Pursuant to the Law on Investment dated November 26, 2014 and the Law Amending and Supplementing Article 6 and Appendix 4 on the List of Sectors and Trades Subject to Conditional Business Investment of the Law on Investment;

Pursuant to the Law on Enterprises dated November 26, 2014;

At the proposal of the Minister of Transport;

The Government hereby promulgates the Decree on amending and supplementing some articles of decrees regulating maritime business conditions.

Article 1. To amend and supplement a number of articles of Decree No. 29/2017/ND-CP dated March 20, 2017, of the Government, on requirements for seafarer training institutions and seafarer recruitment and placement service providers

1. To amend and supplement Article 4 as follows:

“Article 4. Requirements in terms of training facilities and equipment

1. Training facilities and equipment, which shall comply with national technical regulations issued by the Minister of Transport.

2. A Certificate of conformity with ISO Quality Management Systems, which shall be issued by a competent certification body no later than 18 months from the date on which the Certification of eligibility for seafarer’s training is granted.

3. An electronic database to manage seafarer certificates of proficiency for searching purpose in accordance with STCW Convention, which shall be built no later than 12 months from the date on which the Certification of eligibility for seafarer’s training is granted.”

2. To amend and supplement Article 5 as follows:

“Article 5. Requirements on lecturers and instructors

1. A lecturer in theoretical knowledge must hold a bachelor's degree or any higher degree in any of majors consistent with the subject or major he/she is assigned to teach.

2. A lecturer or instructor conducting in-service training must hold at least a certificate of instructor or any equivalent certificate issued by International Maritime Organization (IMO) or a body accredited by IMO in accordance with the STCW Convention; has served on board seagoing ships as a management level officer qualified for each particular training program as specified by the Minister of Transport.

3. In addition to the requirements specified in this Decree, seafarer training institutions must comply with relevant law regulations on education and vocational education.”

3. To provide a new template of the explanatory report on satisfaction to the requirements for seafarer training in the Appendix to this Decree.

4. To abrogate From No. 02 provided in the Appendix to Decree No. 29/2017/ND-CP dated March 20, 2017 of the Government on requirements for seafarer training institutions and seafarer recruitment and placement service providers.

Article 2. To amend and supplement a number of articles of Decree No. 70/2016/ND-CP dated July 1, 2016 of the Government on conditions for provision of maritime safety services.

1. To amend and supplement Article 5 as follows:

“Article 5. Conditions for provision of services of installation, operation and maintenance of navigational aids within public port water zones/areas and navigable channels and on sea lanes

Any enterprise providing services of installation, operation and maintenance of navigational aids within public port water zones/areas and navigable channels and on sea lanes must satisfy the following conditions:

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

2. The person in charge of providing services of installation, operation and maintenance of navigational aids within public port water zones/areas and navigable channels and on sea lanes must hold a bachelor's degree in economics or technology and have at least 05 years of experience in maritime safety assurance.

3. Minimum facilities: 01 wharf and 01 workshop for manufacturing and maintaining aids to navigation.”

2. To amend and supplement Article 6 as follows:

“Article 6. Conditions for provision of services of installation, operation and maintenance of navigational aids within dedicated port water zones/areas and navigable channels

Any enterprise providing services of installation, operation and maintenance of navigational aids within dedicated port water zones/areas and navigable channels must satisfy the following conditions:

1. It is lawfully established in accordance with the laws.

2. The person in charge of providing services of installation, operation and maintenance of navigational aids within dedicated port water zones/areas and navigable channels must hold a bachelor's degree in economics or technology and have at least 05 years of experience in maritime safety assurance.

3. To amend and supplement Article 7 as follows:

“Article 7. Conditions for provision of services of hydrographic survey of public port water zones/areas and navigable channels, and sea lanes for announcement of Notices to mariners

Any enterprise providing services of hydrographic survey of public port water zones/areas and navigable channels, and sea lanes for announcement of Notices to mariners must satisfy the following conditions:

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

2. The person in charge of providing services of hydrographic survey of public port water zones/areas and navigable channels, and sea lanes must hold a bachelor's degree in economics or technology and have at least 05 years of experience in marine surveying.

3. Minimum special-use hydrographic survey equipment: echo sounder; devices used for determining coordinates and altitude; obstacle detection device; automatic tide gauge; wave compensator; sound velocity profiler and hydrographic survey software.”

4. To amend and supplement Article 8 as follows:

“Article 8. Conditions for provision of services of hydrographic survey of dedicated port water zones/areas and navigable channels for announcement of Notices to Mariners

Any enterprise providing services of hydrographic survey of dedicated port water zones/areas and navigable channels for announcement of Notices to Mariners must satisfy the following conditions:

1. It is lawfully established in accordance with the laws.

2. The person in charge of providing services of hydrographic survey of dedicated port water zones/areas and navigable channels must hold a bachelor's degree in economics or technology and have at least 05 years of experience in marine surveying.

3. Minimum special-use hydrographic survey equipment: echo sounder; devices used for determining coordinates and altitude; obstacle detection device; automatic tide gauge; wave compensator; sound velocity profiler and hydrographic survey software.”

5. To amend and supplement Article 10 as follows:

“Article 10. Conditions to be satisfied by enterprises providing Notices-to-Mariners services

Any enterprise providing Notices-to-Mariners services as specified in Clause 2, Article 9 of this Decree must satisfy the following conditions:

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

2. The person in charge of providing Notices-to-Mariners services must hold a bachelor's degree in economics or technology and have at least 05 years of maritime experience.”

6. To amend and supplement Article 11 as follows:

“Article 11. Conditions for provision of services of regulation of maritime safety assurance within public port water zones/areas and navigable channels

Any enterprise providing services of regulation of maritime safety assurance within public port water zones/areas and navigable channels must satisfy the following conditions:

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

2. The person in charge of providing services of regulation of maritime safety assurance within public port water zones/areas and navigable channels must hold a bachelor's degree in economics or technology and have at least 05 years of experience in regulation of maritime safety assurance.”

7. To amend and supplement Article 12 as follows:

“Article 12. Conditions for provision of services of regulation of maritime safety assurance within dedicated port water zones/areas and navigable channels

Any enterprise providing services of regulation of maritime safety assurance within dedicated port water zones/areas and navigable channels must satisfy the following conditions:

1. It is lawfully established in accordance with the laws.

2. The person in charge of providing services of regulation of maritime safety assurance within public port water zones/areas and navigable channels must hold a bachelor's degree in economics or technology and have at least 05 years of experience in regulation of maritime safety assurance.”

8. To amend and supplement Article 13 as follows:

“Article 13. Conditions in terms of organizational structure and capital of the enterprise

Any enterprise providing services of survey, compilation and publication of nautical charts of seaport water areas, navigable channels, and sea lanes; services of compilation and publication of maritime documents and publications must be lawfully established in accordance with the laws and have 100% of its charter capital held by the State and its organizational and operational charter approved by Minister of Transport.”

9. To amend and supplement Article 14 as follows:

“Article 14. Conditions in terms of personnel and facilities

Any enterprise providing services of survey, compilation and publication of nautical charts of seaport water areas, navigable channels, and sea lanes; services of compilation and publication of maritime documents and publications must satisfy the following conditions in terms of personnel and facilities:

1. The person in charge of providing services of survey, compilation and publication of nautical charts of seaport water areas, navigable channels, and sea lanes; services of compilation and publication of maritime publications must hold a bachelor's degree in economics or technology and have at least 05 years of experience in marine surveying.

2. Minimum special-use hydrographic survey equipment: echo sounder; devices used for determining coordinates and altitude; obstacle detection device; automatic tide gauge; wave compensator; sound velocity profiler; hydrographic survey software; and desktop publishing software for publication of paper nautical charts and generation of electronic navigational charts.”

10. To amend and supplement Article 15 as follows:

“Article 15. Conditions in terms of organizational structure and capital of the enterprise

Any enterprise providing electronic maritime information services must be lawfully established in accordance with the laws and have 100% of its charter capital held by the State and its organizational and operational charter approved by Minister of Transport.”

11. To amend and supplement Article 16 as follows:

“Article 16. Conditions in terms of personnel and facilities

Any enterprise providing electronic maritime information services must assign the person in charge of providing electronic maritime information services who must hold a bachelor's degree or any higher degree in maritime information or electronics and telecommunications economics and have at least 05 years of experience in electronic maritime information.”

12. To amend and supplement Article 18 as follows:

“Article 18. Conditions in terms of personnel, facilities

An enterprise providing maritime pilotage services must satisfy the following conditions in terms of personnel and facilities:

1. The person in charge of providing maritime pilotage services must be a premium-class pilot.

2. There is a sufficient minimum number of pilots who have been granted a certificate of operating area appropriate for the assigned vessel navigation routes. The minimum number of pilots of all classes and the minimum number of vessels used to embark and disembark pilots shall be calculated as follows:

a) The minimum number of pilots of all classes shall be calculated based on the vessel navigation routes, the number of vessels on the routes and their tonnages in the preceding 03 years (for newly opened vessel navigation routes, the minimum number of pilots of all classes shall be calculated based on the number of vessels expected to operate on such routes and their tonnage in the first 03 years); the maximum number of annual working days of employees as specified by the laws, the minimum number of pilots on each route to fully meet the needs for pilotage services and ensure at least a 10% reserve of the total number of pilots.

b) The minimum number of vessels used to embark and disembark pilots shall be calculated based on the annual number of ships guided by the pilotage enterprise and the maritime conditions in the pilotage area.

c) The Vietnam Maritime Administration shall announce the minimum number of pilots of all classes and the minimum number of vessels used to embark and disembark pilots for each vessel navigation route; assign mandatory pilotage areas and vessel navigation routes to enterprises providing pilotage services following the principle that one navigation route is only undertaken by only one enterprise providing maritime pilotage services.

13. To amend and supplement Article 20 as follows:

 “Article 20. Conditions in terms of organizational structure of the enterprise

Any provider of services of removal of obstructions to navigation must be an enterprise lawfully established in accordance with the laws.”

14. To amend and supplement Article 22 as follows:

“Article 22. Conditions to be satisfied by enterprises importing marine flares

1. It is lawfully established in accordance with the laws.

2. It satisfies all fire safety requirements in accordance with the laws.”

Article 3. To amend and supplement a number of articles of Decree No. 160/2016/ND-CP dated November 29, 2016 of the Government prescribing conditions for sea shipping business, shipping agency service and towage service

1. To amend and supplement Article 4 as follows:

“Article 4. General conditions for dealing in sea shipping business

Being sea shipping enterprises or cooperatives established in accordance with the laws (hereinafter referred to as enterprises).”

2. To amend and supplement Article 5 as follows:

“Article 5. Conditions for international sea shipping enterprises

In addition to the conditions specified in Article 4 of this Decree, international sea shipping enterprises must also satisfy the following conditions:

1. Regarding finance: Obtaining a guarantee of at least VND 05 (five) billion in accordance with the laws or buying insurance for the fulfillment of the shipowner’s obligations toward crewmembers in accordance with the regulations.

2. Regarding ships: Having the lawful use right of at least 01 seagoing ship; in case such ship flying the Vietnamese flag, it must comply with relevant national technical regulations issued by the Minister of Transport.

3. While conducting business, the enterprises must establish or hire the following organizational apparatus and personnel:

a) Regarding the organizational apparatus: Having a safety management section in accordance with the International Safety Management Code (ISM Code); a maritime security management section in accordance with the International Ship and Port Facility Security Code (ISPS Code);

b) Regarding personnel: The person in charge of the maritime safety and security management must have been properly trained and granted a relevant certificate as prescribed by the Minister of Transport.”

3. To amend and supplement Article 6 as follows:

“Article 6. Conditions for domestic sea shipping enterprises

In addition to the conditions specified in Article 4 of this Decree, the domestic sea shipping enterprises must also satisfy the following conditions:

Having the lawful use right of at least 01 seagoing ship flying the Vietnamese flag in conformity with national technical regulations issued by the Minister of Transport.”

4. To amend and supplement Article 12 as follows:

“Article 12. Conditions for shipping agency staff members

Shipping agency staff members must be Vietnamese citizens who possess a professional certificate of shipping agency issued by a competent agency/organization under the Ministry of Transport’s regulations.”

5. To amend and supplement Article 13 as follows:

“Article 13. Conditions for provision of towage service

1. An enterprise or cooperative that provides towage service in Vietnam must be established in accordance with the laws. In case a foreign-invested enterprise wishes to provide towage service, the foreign investors’ capital contribution must not exceed 49% of the enterprise’s charter capital.

2. Having the lawful use right of at least 01 tugboat flying the Vietnamese flag.”

6. To amend and supplement Article 18 as follows:

“Article 18. Transitional provisions

Sea shipping enterprises, enterprises providing shipping agency services or towage services which are established before the effective date of this Decree may continue to operate; from the effective date of this Decree, the enterprises must fully meet the conditions for sea shipping business, shipping agency or towage services specified in this Decree.”

7. To annul Clause 3, Article 7; Articles 8, 9, 10; Clause 3, Article 14; Clause 3, Article 15; Form No. 01 and Form No. 02 provided in the Appendix to Decree No. 160/2016/ND-CP dated November 29, 2016 of the Government prescribing conditions for sea shipping business, shipping agency service and towage service.

Article 4. To amend and supplement a number of articles of Decree No. 114/2014/ND-CP dated November 26, 2014 of the Government on subjects eligible and conditions for licensed import and dismantlement of used ships

1. To amend and supplement Clause 1, Article 7 as follows:

“1. A ship dismantling enterprise which fully satisfies the following conditions may be licensed by the Ministry of Transport to import used ships for dismantlement:

a) It is lawfully established in accordance with the laws;

b) It has division in charge of labor safety and environmental protection;

c) Its legal capital is at least VND 50 (fifty) billion.”

2. To amend and supplement Article 12 as follows:

“Article 12. Conditions for a ship dismantlement establishment to be put into operation

1. Having technical facilities and equipment, which shall comply with national technical regulations issued by the Minister of Transport.

2. Fully stisfying environmental protection requirements in accordance with the laws.”

Article 5. To amend and supplement a number of articles of Decree No. 37/2017/ND-CP dated April 4, 2017 of the Government on conditions for commercial operation of seaports

1. To amend and supplement Article 5 as follows:

“Article 5. Conditions for the enterprise

1. It is lawfully established in accordance with the laws.

2. In the case where the port enterprise is a foreign-invested enterprise providing container handling services included in sea shipping support services, foreign investors are allowed to contribute capital to such enterprise in accordance with the laws with the foreign holding rate of no more than 50% of such enterprise’s charter capital.”

2. To amend and supplement Article 6 as follows:

“Article 6. Conditions in terms of the organizational structure and personnel

1. Regarding the organizational structure condition: Having a section in charge of maritime security management in accordance with the regulations.

2. Regarding personnel: Seaport security officers must be trained and obtain certificates in accordance with the Ministry of Transport’s regulations and in conformity to the International Ship and Port Facility Security (ISPS) Code.”

3. To amend and supplement Article 7 as follows:

“Article 7. Conditions in terms of facilities and equipment

1. It has sufficient facilities, warehouses, yards, and necessary equipment in conformity with national technical regulations on seaports; in the case where there are not enough warehouses and yards, the port enterprise shall sign contracts to lease warehouses and yards unless it solely commercially operates floating terminals, anchorage zones, transshipment zones or offshore oil ports.”

2. It satisfies all occupational safety and health, fire safety requirements in accordance with the laws.”

4. To amend and supplement Article 9 as follows:

“Article 9. Conditions in terms of environmental protection

It has adequate devices for receiving and collecting wastes discharged from ships operating at seaports for disposal in accordance with the International Convention for the Prevention of Pollution from Ships (MARPOL Convention) to which Vietnam is a contracting party and other environmental protection requirements in accordance with the laws.”

5. To annul Article 8 of Decree No. 37/2017/ND-CP dated April 4, 2017 of the Government on conditions for commercial operation of seaports.

Article 6. To amend and supplement a number of articles of Decree No. 111/2016/ND-CP dated July 1, 2016 of the Government prescribing business conditions for provision of seagoing ship building, conversion and repair services

1. To amend and supplement Article 8 as follows:

“Article 8. Conditions in terms of occupational safety and health, fire safety, environmental protection

1. It satisfies all occupational safety and health, fire safety requirements in accordance with the laws.

2. It must have adequate facilities for receiving and collecting wastes from ships for disposal under the International Convention for the Prevention of Pollution from Seagoing ships (MARPOL) to which Vietnam is a contracting party and other environmental protection requirements in accordance with the laws.”

2. To amend and supplement Article 9 as follows:

“Article 9. Quality management systems

1. A grade-1 shipyard must establish a quality management system according to ISO 9001 or equivalent standard and a safety and environment management system according to ISO 14001 or equivalent standard within 12 months from the time it is eligible for operation and maintain the application thereof while it is operating.

2. A grade-2 shipyard must establish a quality management system including processes for performing seagoing ship building and conversion tasks according to ISO 9001 or equivalent standard within 12 months from the time it is eligible for operation and maintain the application thereof while it is operating.”

3. To amend and supplement Article 13 as follows:

“Article 13. Conditions in terms of occupational safety and health, fire safety, environmental protection

1. It satisfies all occupational safety and health, fire safety requirements in accordance with the laws.

2. It must have adequate facilities for receiving and collecting wastes from ships for disposal under the International Convention for the Prevention of Pollution from Seagoing ships (MARPOL) to which Vietnam is a contracting party and other environmental protection requirements in accordance with the laws.”

4. To amend and supplement Article 14 as follows:

“Article 14. Quality management systems

A seagoing ship repair establishment must establish a quality management system including processes for performing seagoing ship repair tasks according to ISO 9001 or equivalent standard within 12 months from the time it is eligible for operation and maintain such system while it is operating.”

5. To amend and supplement Point c, Clause 2, Article 16 as follows:

“c) Environmental protection, occupational safety, and fire safety documents and files approved by competent authorities in accordance with the laws;”

6. To annul Articles 7 and 12, Point c, Clause 3, Article 16 of Decree No. 111/2016/ND-CP dated July 1, 2016 of the Government prescribing business conditions for provision of seagoing ship building, conversion and repair services.

Article 7. Effect

1. This Decree takes effect from the date of signing for promulgation.

2. Ministers, heads of ministerial-level agencies, heads of governmental agencies, chairpersons of People’s Committees of provinces and municipalities shall be responsible for guiding and implementing this Decree./.

* All Appendices are not translated herein.