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MINISTRY OF NATIONAL DEFENCE OF VIETNAM
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No. 105/2022/TT-BQP
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Hanoi, December 29, 2022
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CIRCULAR
GUIDELINES FOR IMPLEMENTATION OF SOME ARTICLES OF DECREE
NO. 162/2013/ND-CP DATED NOVEMBER 12, 2013 OF THE GOVERNMENT ON PENALTIES FOR
ADMINISTRATIVE VIOLATIONS COMMITTED WITHIN TERRITORIAL WATERS, ISLANDS AND
CONTINENTAL SHELF OF THE SOCIALIST REPUBLIC OF VIETNAM, DECREE NO.
23/2017/ND-CP DATED MARCH 13, 2017 OF THE GOVERNMENT ON AMENDMENTS TO SOME
ARTICLES OF DECREE NO. 162/2013/ND-CP DATED NOVEMBER 12, 2013 OF THE GOVERNMENT ON PENALTIES FOR
ADMINISTRATIVE VIOLATIONS COMMITTED WITHIN TERRITORIAL WATERS, ISLANDS AND
CONTINENTAL SHELF OF THE SOCIALIST REPUBLIC OF VIETNAM AND DECREE NO.
37/2022/ND-CP DATED JUNE 06, 2022 OF THE GOVERNMENT ON ADMENDMENTS TO SOME
ARTICLES OF DECREES ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS AGAINST
REGULATIONS ON NATIONAL DEFENSE AND CIPHER; MANAGEMENT AND PROTECTION OF
NATIONAL BORDER; WITHIN THE TERRITORIAL WATERS, ISLANDS AND CONTINENTAL SHELF
OF THE SOCIALIST REPUBLIC OF VIETNAM
Pursuant to
Government’s Decree No. 162/2013/ND-CP dated November 12, 2013 on penalties for
administrative violations committed within territorial waters, islands and
continental shelf of the Socialist Republic of Vietnam;
Pursuant to
Government’s Decree No. 23/2017/ND-CP dated March 13, 2017 on amendments to
some Articles of Government’s Decree No. 162/2013/ND-CP dated November 12, 2013
on penalties for administrative violations committed within territorial waters,
islands and continental shelf of the Socialist Republic of Vietnam;
Pursuant to
Government’s Decree No. 37/2022/ND-CP dated June 06, 2022 on amendments to some
Articles of Decrees on penalties for administrative violations against
regulations on national defense and cipher; management and protection of
national border; within the territorial waters, islands and continental shelf
of the Socialist Republic of Vietnam;
Pursuant to
Government’s Decree No. 01/2022/ND-CP dated November 30, 2022 on functions,
tasks, powers, and organizational structure of the Ministry of National Defense
of Vietnam;
At the request of the
Commander of Vietnam Coast Guard;
The Minister of
National Defense hereby promulgates a Circular on guidelines for
implementation of some Articles of Decree No. 162/2013/ND-CP dated November 12,
2013 of the Government on penalties for administrative violations committed
within territorial waters, islands and continental shelf of the Socialist
Republic of Vietnam, Decree No. 23/2017/ND-CP dated March 13, 2017 of the
Government on amendments to some Articles of Decree No. 162/2013/ND-CP dated
November 12, 2013 of the Government on penalties for administrative violations
committed within territorial waters, islands and continental shelf of the
Socialist Republic of Vietnam and Decree No. 37/2022/ND-CP dated June 06, 2022
of the Government on amendments to some Articles of Decrees on penalties for
administrative violations against regulations on national defense and cipher;
management and protection of national border; within the territorial waters,
islands and continental shelf of the Socialist Republic of Vietnam.
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GENERAL
PROVISIONS
Article
1. Scope
This Circular provides guidelines
for implementation of some Articles of Decree No. 162/2013/ND-CP dated November
12, 2013 of the Government on penalties for administrative violations committed
within territorial waters, islands and continental shelf of the Socialist
Republic of Vietnam (hereinafter referred to as “Decree No. 162/2013/ND-CP”),
Decree No. 23/2017/ND-CP dated March 13, 2017 of the Government on amendments
to some Articles of Decree No. 162/2013/ND-CP dated November 12, 2013 of the
Government on penalties for administrative violations committed within
territorial waters, islands and continental shelf of the Socialist Republic of
Vietnam (hereinafter referred to as “Decree No. 23/2017/ND-CP”) and Decree No.
37/2022/ND-CP dated June 06, 2022 of the Government on amendments to some
Articles of Decrees on penalties for administrative violations against
regulations on national defense and cipher; management and protection of
national border; within the territorial waters, islands and continental shelf
of the Socialist Republic of Vietnam (hereinafter referred to as Decree No.
37/2022/ND-CP).
Article
2. Regulated entities
1. Persons who have the
power to impose penalties for administrative violations and persons who have
the power to record administrative violations prescribed in the Decree No.
162/2013/ND-CP , Decree No. 23/2017/ND-CP and Decree No. 37/2022/ND-CP of the
Government; relevant agencies, organizations and individuals.
2. Vietnamese
organizations and individuals and foreign organizations and individuals that
commit administrative violations within territorial waters, islands and
continental shelf of the Socialist Republic of Vietnam.
Article
3. Remedial measures
The remedial measures
specified in Clauses 2,3,4 and 5 Article 4 of Decree No. 162/2013/ND-CP shall
be imposed as follows:
1. Issue a decision on
penalties for administrative violations which states remedial measures. In case
of failure to issue the decision on penalties for administrative violations
according to regulations of Clause 2 Article 65 of 2012 Law on Handling of
Administrative Violations, amended in 2022, the person who has the power to
impose penalties for the administrative violations shall issue a decision on
confiscation of any exhibit or instrumentality involved in commission of
administrative violations and impose remedial measures.
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3. Impose measures as
prescribed by law requiring the implementation of the remedial measures stated
in the decision on penalties for administrative violations.
4. Conduct enforcement
according to regulations of Section 5, Chapter 2 of Government’s Decree No.
166/2013/ND-CP dated November 12, 2013 on enforcement of decisions on
imposition of administrative penalties in case organizations or individuals
that commit administrative violations fail to voluntarily implement remedial
measures.
Article
4. Use of professional technical means and equipment for detection of
administrative violations
The use of professional
technical means and equipment for detection of administrative violations
against regulations on order, safety of maritime transport and environmental
protection shall comply with Article 64 of 2012 Law on Handling of
Administrative Violations, amended in 2020; Government's Decree No.
135/2021/ND-CP dated December 31, 2021 on list, management and use of
professional technical means and equipment and procedures for collection and
use of data obtained by using technical means and equipment provided by
individuals or organizations for detection of administrative violations;
Government's Decree No. 02/2019/ND-CP dated July 09, 2019 on list, management
and use of professional technical means and equipment of Coast Guard of
Vietnam and Government's Decree No. 02/2021/ND-CP dated December 02, 2021
on list, management and use of professional technical means and equipment of
Border Guards.
Chapter
II
ADMINISTRATIVE
VIOLATIONS COMMITTED WITHIN TERRITORIAL WATERS, ISLANDS AND CONTINENTAL SHELF
OF THE SOCIALIST REPUBLIC OF VIETNAM
Article
5. Violations against regulations on innocent passage within the territorial
waters specified in Article 5 of Decree No. 162/2013/ND-CP
1. The act of illegally
stopping or anchoring within territorial waters of Vietnam specified in Clause
1 Article 5 of Decree No. 162/2013/ND-CP means a foreign ship exercising the
right of innocent passage through the territorial waters of Vietnam but it does
not stop or anchor within the territorial waters in the event of force majeure
or distress or for the purpose of rendering assistance to persons, ships or
aircraft in danger of distress.
2. The act of entering a
prohibited or restricted areas within the territorial waters of Vietnam
specified in Clause 3 Article 5 of Decree No. 162/2013/ND-CP means a foreign
ship exercising the right of innocent passage through the territorial waters
and entering a prohibited or restricted area within the territorial waters of
Vietnam which is established by the Government of Vietnam for the purpose of
protecting sovereignty, national defense, security and national interests or
maritime safety, protecting marine resources and ecosystems, fighting against
pollution, responding to marine emergencies or disasters, preventing and
controlling the spread of diseases without the permission of the Socialist
Republic of Vietnam.
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Article
6. Violations against regulations on flying Vietnamese flag and national flag
specified in Article 07 of Decree No. 162/2013/ND-CP , amended by Clause 1
Article 1 of Decree No. 23/2017/ND-CP
Those violations include:
1. Flying flags on ships
at seaports according to regulations in Clause 1 Article 61 of the Government’s
Decree No. 58/2017/ND-CP dated May 10, 2017 on guidelines for some Articles of
the Vietnam Maritime Code in 2015 on management of maritime operations
2. Flying national flags
on Vietnamese ships according to regulations in Clause 2 Article 61 of the
Government’s Decree No. 58/2017/ND-CP dated May 10, 2017 on guidelines for some
Articles of the Vietnam Maritime Code in 2015 on management of maritime
operations.
3. Flying national flag
and Vietnamese flag on foreign ships upon their operation within maritime
boundary areas according to regulations in Clause 2 Article 8 of Government’s
Decree No. 71/2015/ND-CP dated September 03, 2015 on management of activities
of persons, vessels and crafts in maritime boundary areas of the Socialist
Republic of Vietnam.
Article
7. Violations against regulations on encroachment on territorial waters,
islands and continental shelf of the Socialist Republic of Vietnam specified in
Clause 3, Articles 8, 9 and 11, Clause 6 Article 13 of Decree No.
162/2013/ND-CP , amended by Clauses 5, 6 and 7 Article 3 of Decree No.
37/2022/ND-CP
Those violations means
the ones where a foreign organization or individual enters the territorial waters,
islands and continental shelf of the Socialist Republic of Vietnam by a ship or
another means of transport and conducts investigation, exploration or
scientific research on marine resources; extracts and trades aquatic products; builds, installs and
uses artificial islands, equipment and works within territorial
waters, islands and continental shelf of the Socialist Republic of Vietnam
without permission of the Socialist Republic of Vietnam according to
regulations of law.
Article
8. Act of obstruction specified in Article 12 of Decree No. 162/2013/ND-CP
The act of
obstruction means the act or omission of an organization or individual
operating on sea causing sea vehicles to change their speed or direction;
fishing ships or boats to change their process of collecting, casting or
hauling fishing nets; seismic vessels to change their routes; ships used for
search, exploration and extraction of petroleum and other natural resources to
change their planned routes; other lawful activities not to be carried out
normally at sea via.
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1. The transport of
cargoes at sea without a voyage charter party or equivalent paper according to
regulations of the law specified in Point a, Clause 1 Article 15 of Decree No.
162/2013/ND-CP means a violation where the cargoes are transported at sea
without any document that proves the legal transport of cargoes at sea. To
be specific:
a) Transport of cargoes
on a voyage without a voyage charter party prescribed in Clause 2 Article 146
of the Vietnam Maritime Code 2015 and other legal documents.
b) Transport of cargoes
under the transport document without one of the following documents: voyage
charter party concluded as prescribed in the Vietnam Maritime Code 2015 and
other relevant documents; bill of lading, through bill of lading, sea waybill
and other transport documents of which contents and value are agreed upon by
the carrier and the hirer.
With regard to the bill
of lading of cargoes that are temporarily imported for re-export, it is
required to comply with Clause 2, Article 22 of Decree No. 69/2018/ND-CP dated
May 15, 2018 of the Government on guidelines for the Law on foreign trade
management.
2. Failure to use means
of transport suitable for the type of cargoes specified in Point b Clause 1
Article 15 of the Decree No. 162/2013/ND-CP. To be specific:
a) Failure to use
suitable means of transport of petrol and oil prescribed in Government’s Decree
No. 83/2014/ND-CP dated September 03, 2014 on petrol and oil trading and
Government’s Decree No. 95/2021/ND-CP dated November 01, 2021 on amendments to
some Articles of Decree No. 83/2014/ND-CP dated September 03, 2014 on petrol
and oil trading.
b) Failure to use
suitable means of transport of dangerous goods prescribed in Government’s
Decree No. 42/2020/ND-CP dated April 08, 2020 on list of dangerous goods,
transport of dangerous goods by land motor vehicles and transport of dangerous
goods by inland waterways, Government’s Decree No. 60/2016/ND-CP dated July 01,
2016 on certain regulatory requirements for trade and investment in the
environment and natural resource sector, Government’s Decree No. 136/2018/ND-CP
dated October 05, 2018 on amendments to certain Decrees on regulatory requirements
for trade and investment in the environment and natural resource sector,
Circular No. 46/2017/TT-BGTVT dated November 27, 2017 of the Minister of
Transport on safety and prevention of pollution from carriage of dangerous
goods by sea.
3. Ship-to-ship transfer
of petrol, oil, ores and other cargoes at a location other than the regulated
one specified in Point c Clause 1 Article 15 of the Decree No. 162/2013/ND-CP.
To be specific:
a) Ship-to-ship transfer
of petrol and oil at a location other than the regulated one prescribed in
Clause 15, Article 9 of Government’s Decree No. 83/2014/ND-CP dated September
03, 2014 on petrol and oil trading and Government’s Decree No. 95/2021/ND-CP
dated November 01, 2021 on amendments to some Articles of Decree No. 83/2014/ND-CP
dated September 03, 2014 on petrol and oil trading.
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4. Transport, trading and
ship-to-ship transfer of cargoes that are not subject to conditions for
transport and trading without valid documents or with insufficient documentary
evidences for the legitimacy of cargoes prescribed in Clause 2 Article 15 of
the Decree No. 162/2013/ND-CP , amended in Clause 2 Article 1 of the Decree No.
23/2017/ND-CP. To be specific:
a) Failure to have
documentary evidences for the legitimacy of cargoes imported, transported from
the checkpoint of import to inland prescribed in Article 4 of the Joint
Circular No. 64/2015/TTLT-BTC-BCT-BCA-BQP dated May 08, 2015 of the Minister of
Finance, Minister of Industry and Trade, Minister of Public Security and
Minister of National Defense on invoices and documents for imported products in
circulation on the market.
b) Transport of cargoes
for export without a declaration of exports that have been granted customs
clearance and certified that cargoes have passed through the customs controlled
area prescribed in Circular No. 38/2015/TT-BTC dated March 25, 2015 of the
Minister of Finance on customs procedures, customs supervision and inspection,
export duty, import duty, and tax administration applied to exports and
imports; Circular No. 39/2018/TT-BTC dated April 20, 2018 on amendments to some
Articles of Circular No. 38/2015/TT-BTC dated March 25, 2015 of the Minister of
Finance on customs procedures, customs supervision and inspection, export duty,
import duty, and tax administration applied to exports and imports.
c) Imports in transit to
a customs place with insufficient documents that must be submitted to follow
customs procedures prescribed in Clauses 2, 3, 4 and 5 Article 16 of
Circular No. 38/2015/TT-BTC dated March 25, 2015 of the Minister of Finance on
customs procedures, customs supervision and inspection, export duty, import
duty, and tax administration applied to exports and imports; Circular No.
39/2018/TT-BTC dated April 20, 2018 on amendments to some Articles of Circular
No. 38/2015/TT-BTC dated March 25, 2015 of the Minister of Finance on customs
procedures, customs supervision and inspection, export duty, import duty, and
tax administration applied to exports and imports.
Failure to have
documentary evidences for the legitimacy of cargoes imported, transported and
sold in domestic market prescribed in Article 5 of the Joint Circular No. 64/2015/TTLT-BTC-BCT-BCA-BQP
dated May 08, 2015 of the Minister of Finance, Minister of Industry and Trade,
Minister of Public Security and Minister of National Defense on invoices and
documents for imported products in circular on the market.
d) Transport of cargoes
that are forest products without a valid dossier or with a valid dossier which
is not relevant to the forest products that are actually being transported;
timber without a forest ranger’s hammer mark with regard to the timber required
by law to have a forest ranger’s hammer mark.
A valid dossier on forest
products shall be determined as prescribed in Circular No. 27/2018/TT-BNNPTNT
dated November 16, 2018 of the Minister of Agriculture and Rural Development on
management and tracing of forest products, Official Dispatch No. 53/KL-DT dated
January 28, 2019 of Forest Protection Department/Vietnam Administration
Forestry on guidelines for implementation of Circular No. 27/2018/TT-BNNPTNT.
dd) Cargoes that are
manufactured, transported and traded in domestic market other than cargoes
specified in Points a, b, c and d of this Clause, without or with insufficient
documentary evidences for the legitimacy, including:
Invoices specified in
Article 08 of Government’s Decree No. 123/2020/ND-CP dated October 19, 2020 on
invoices and records; Circular No. 78/2021/TT-BTC dated September 17, 2021 of
the Minister of Finance on guidance on Law on Tax Administration dated June 13,
2019 and Government’s Decree No. 123/2020/ND-CP dated October 19, 2020 on
invoices and records; Government’s Decree No. 41/2022/ND-CP dated June 20, 2022
on amendments to Decree No. 123/2020/ND-CP and Decree No. 15/2022/ND-CP dated
January 28, 2022 of the Government of Vietnam on tax exemption and reduction
under Resolution No. 43/2022/QH15 of the National Assembly of Vietnam on fiscal
and monetary policies for supporting socio-economic recovery and development
program
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e) Transport, trading and
ship-to-ship transfer of other cargoes without valid documents or with
insufficient documentary evidences for the legitimacy of cargoes according to
regulations of the law.
5. In case of transport,
trading or ship-to-ship transfer of minerals of illegal origins, the handling
of such violation shall comply with regulations in Point d Clause 1 Article 17
of Government’s Decree No. 98/2020/ND-CP dated August 26, 2020 on penalties for
administrative violations against regulations on commerce, production and trade
in counterfeit and prohibited goods, and protection of consumer rights, amended
by Government’s Decree No. 17/2022/ND-CP dated January 31, 2022 on amendment to
Decrees on imposition of penalties for administrative violations in chemicals
and industrial explosive materials; electricity, hydroelectricity dam safety,
effective and efficient use of energy; commerce, production and trade of
counterfeits and prohibited goods, and protection of consumer’s rights;
petroleum, petrol, oil and gas trading
The minerals of illegal
origin are minerals that fall outside cases specified in Article 14 of Government’s
Decree No. 17/2020/ND-CP dated February 05, 2020 on amendments to some Articles
of Decrees related to necessary business conditions in fields under the
management of the Ministry of Industry and Trade. Minerals of legal
origin shall:
- Be extracted or
obtained from secondary mining from mines, mining spots and landfills within
the effective period of the mining license and secondary mining license issued
by the competent authority;
- Be imported according
to the customs declaration of imports certified by the checkpoint customs;
- Be confiscated and
liquidated by the competent authority.
6. Transport, trading and
ship-to-ship transfer of cargoes that are subject to conditions for transport
and trading without valid documents or with insufficient documentary evidences
for the legitimacy of cargoes at the time for inspection prescribed in Clause 2
Article 15 of Decree No. 162/2013/ND-CP , amended by Clause 2 Article 1 of the
Decree No. 23/2017/ND-CP. To be specific:
a) Failure to invoices or
documents; documents that are printed, issued, used and managed as invoices
including delivery and internal consignment notes and delivery notes for goods
sent to sales agents prescribed in Clause 3 Article 13 of Government’s
Decree No. 123/2020/ND-CP dated October 19, 2020 on invoices and records, and
other documents according to regulations of the law.
b) Imports on the list of
imports under the license or given conditions which are sold without an import
license or document issued by the competent authority according to regulations.
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List of goods subject to
conditions for trading and transport according to regulations at the Appendix
III enclosed with the Government’s Decree No. 59/2006/ND-CP dated June 12, 2006
on guidelines for the commercial law on goods and services, banned from business,
subject to restrictions and conditions; Appendix IV enclosed with 2020 Law on
Investment and other relevant documents
Article
10. Violations against regulations on registration and inspection, and inland
waterway transport license of ships specified in Article 16 of Decree No.
162/2013/ND-CP , and Clause 8 Article 3 of Government’s Decree No. 37/2022/ND-CP
1. Documents and
certificates of ships specified in Clause 1 Article 16 of Decree No.
162/2013/ND-CP are documents specified in Circular No. 55/2019/TT-BGTVT dated
December 31, 2019 of the Minister of Transport on list of certificates and
documents of Vietnam’s ships, public service ships, submarines, submersibles,
floating docks, floating storage units and mobile offshore drilling units and
other legal documents.
2. The port clearance
certificate (electronic or paper form) specified in Clause 2 Article 16 of
Decree No. 162/2013/ND-CP and Clause 8 Article 3 of Decree No. 37/2022/ND-CP is
a document issued or certified by a port authority or competent authority that
is in charge of the last port of dispatch (paper form) or issued to a
declarant (electronic form) via web portal after completion of electronic
procedure for the ship’s departure from seaport. The electronic port clearance
certificate shall have code for search and validity to serve as a replacement
for the paper port clearance certificate according to
regulations of Government's Decree No. 58/2017/ND-CP dated May 10, 2017 on
guidelines for some Articles of the Vietnam Maritime Code on management of
maritime operations.
Article
11. Violations against regulations on seaman’s certificates of competency, book
and passport specified in Article 17 of Decree No. 162/2013/ND-CP , amended by
Clause 9 Article 3 of Decree No. 37/2022/ND-CP
1. The violation against
regulation on seaman’s certificate of competency prescribed in Article 17 of
the Decree No. 162/2013/ND-CP means a violation where a seaman working onboard
a ship does not have one of the certificates of competency as prescribed in
Circular No. 03/2020/TT-BGTVT dated February 21, 2020 of the Minister of
Transport on standards of competence, professional certificates, training for
seafarers, and minimum safe manning requirements for Vietnamese-flagged ships
and other relevant documents.
2. The violation against
regulation on seaman’s book means a violation where a seaman working onboard a
ship does not have any book or have sufficient books as prescribed in Circular
No. 23/2017/TT-BGTVT dated July 28, 2017 of the Minister of Transport on ranks and
duties of crew members and registration of crew members working on Vietnamese
ships
Article
12. Violations against regulations on safety of life at sea ships; violations
against regulations on fire and explosion prevention for ships specified in
Article 18 of Decree No. 162/2013/ND-CP , amended in Clause 10 Article 3 of
Decree No. 37/2022/ND-CP and Article 19 Decree No. 162/2013/ND-CP , amended by
Clause 11 Article 3 of Decree No. 37/2022/ND-CP
1. Equipment for marine
safety assurance and marine pollution prevention (including equipment for
life-saving, fire prevention, fire detection and fighting) installed on
Vietnamese ships that operate on domestic routes is prescribed in the Decision
No. 59/2005/QD-BGTVT dated November 21, 2005 of the Minister of Transport on
regulation on equipment for marine safety and prevention of marine pollution
installed on Vietnamese ships that operate domestic routes.
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Article
13. Violations against regulations on maritime safety specified in Article 20
of Decree No. 162/2013/ND-CP
The maritime accident
classification for identification of the violations against regulations on maritime
safety specified in Clauses 3 and 4 Article 20 of Decree No. 162/2013/ND-CP
shall comply with regulations at Circular No. 01/2020/TT-BGTVT dated January
20, 2020 of the Minister of Transport on investigation into and reporting on
marine casualties, amended by Circular No. 34/2020/TT-BGTVT dated December 23,
2020 of the Minister of Transport on amendments to some Articles of Circulars
on periodic reporting regime in the maritime sector.
Article
14. Violations against other regulations on safety and security within
territorial waters, islands and continental shelf of the Socialist Republic of
Vietnam specified in Article 21 of Decree No. 162/2013/ND-CP , amended by Clause
12 Article 3 of Decree No. 37/2022/ND-CP
1. A ship security
officer specified in Point c Clause 2 Article 21 of Decree No. 162/2013/ND-CP
is a master or an officer appointed by the ship owner. In case the
security officer is not the master, he/she shall be subject to direct
management of the master. The duties of ship security officers are
prescribed in Circular No. 23/2017/TT-BGTVT dated July 28, 2017 of the Minister
of Transport on ranks and duties of crew members and registration of crew
members working on Vietnamese ships.
2. The name of ship or
port of ship registry specified in Point a, Clause 3 Article 21 of Decree No.
162/2013/ND-CP shall comply with the regulations of Government’s Decree No.
171/2016/ND-CP dated December 27, 2016 on registration, deregistration,
purchase, sale and construction of ships and other relevant documents.
3. Documents on lists of
dangerous cargoes, regulations on transport of dangerous cargoes on inland
waterway specified in point b Clause 3 Article 21 of Decree No. 162/2013/ND-CP
shall comply with regulations at Government’s Decree No. 42/2020/ND-CP dated
April 08, 2020 on list of dangerous goods, transport of dangerous goods by land
motor vehicles and transport of dangerous goods by inland waterways.
4. The regulations on
transport of dangerous cargoes by ships are provided for in the Vietnam
Maritime Code 2015 and other legal documents.
5. The permitted
navigation areas and routes for inland waterway vehicles shall comply with
regulations in the Circular No. 30/2021/TT-BGTVT dated November 30, 2021 of the
Minister of Transport on amendments to some Articles of Circular No.
36/2019/TT-BGTVT dated September 12, 2019 of the Minister of Transport on
management of waterway transport from shores to islands in
territorial waters of Vietnam and other relevant documents. The
permitted navigation areas and routes for inland waterway vehicles are also
defined in the “certificate of registration of inland waterway vehicles” or
“certificate of technical safety and environmental protection” for inland
waterway vehicles.”
6. The permitted
navigation areas and routes for ships shall comply with regulations at Circular
No. 11/2016/TT-BGTVT dated June 02, 2016 of the Minister of Transport on
promulgation of National Technical Regulation on classification and
construction of sea – going steel ships, National Technical Regulation on
classification and construction of high-speed crafts, National Technical
Regulation on ship safety equipment and National Technical Regulation on
inspection of wooden-hulled ships; Circular No. 06/2015/TT-BGTVT dated April
02, 2015 of the Minister of Transport on permitted navigation areas for cargo
ships in the Gulf of Tonkin. The permitted navigation areas and routes for
ships are also defined in the dossier on ships.
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The identification of the
violations against regulations on search and rescue at sea specified in Article
22 of Decree No. 162/2013/ND-CP shall comply with regulations at Vietnam
Maritime Code 2015; Decision No. 06/2014/QD-TTg dated January 20, 2014 of the
Prime Minister on cooperation in search and rescue at sea and in port waters
and Government’s Decree No. 30/2017/ND-CP dated March 21, 2017 on regulation on
response to emergency, natural disasters and search and rescue.
Article
16. Violations against other regulations on salvage of shipwreck property
within territorial waters, islands and continental shelf of the Socialist
Republic of Vietnam specified in Article 23 of Decree No. 162/2013/ND-CP
The shipwreck property
specified in Article 23 of Decree No. 162/2013/ND-CP includes ships, boats,
cargoes or other objects which are shipwrecked, float on inland waterways, port
waters, territorial waters of Vietnam or drifted into territorial waters of
Vietnam. The regulations on salvage of shipwrecked property shall comply with
regulations in Government’s Decree No. 05/2017/ND-CP dated January 16, 2017 on
treatment of property sunk in inland waterways, port waters and territorial
waters of Vietnam
Article
17. Violations against regulations on protection of marine environment in cases
where foreign nuclear-powered ships or ships carrying radioactive substances,
toxic or dangerous chemicals pass through the territorial waters of Vietnam
specified in Article 24 of Decree No. 162/2013/ND-CP
1. A foreign
nuclear-powered ship or a ship carrying radioactive substances, toxic or
dangerous chemicals passing through the territorial waters of Vietnam means
that ship exercising the right of innocent passage through the territorial
waters of Vietnam. To be specific:
a) The ship passes but
does not enter internal waters of Vietnam or anchor at a port, wharf or shelter
outside the internal waters of Vietnam;
b) The ship enters or
exits internal waters of Vietnam or anchors at or exits from a port, wharf or
shelter outside the internal waters of Vietnam;
2. Technical documents
related to ships and cargoes on ships specified in Clause 1 Article 24 of
Decree No. 162/2013/ND-CP:
a) With regard to ships
carrying radioactive substances, toxic or dangerous chemicals, the documents are
specified in Regulations 4, 7-2, 10, 16 of Chapter III, International
Convention for the Safety of Life at Sea 1974. With regard to nuclear-powered
ships, the documents are specified in Regulation 10 Chapter VIII of
International Convention for the Safety of Life at Sea 1974.
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3. The compulsory civil
liability insurance documents are certificates of shipowner's civil liability
insurance, certificates of insurance or financial security of civil liability
for oil pollution damage, or other insurance certificates in accordance with
regulations of relevant international conventions to which Vietnam is a signatory.
Article
18. Violations against regulations on prevention of pollution of marine
environment from ships specified in Article 25 of Decree No. 162/2013/ND-CP ,
amended by Clause 13 Article 3 of Decree No. 37/2022/ND-CP
1. The failure to write,
adequately write, or correctly write entries in the oil record, engine room
bilge pumping record and sewage discharge record specified in Clause 1 Article
25 of Decree No. 162/2013/ND-CP means a violation against regulations in
Appendix I of MARPOL Convention 73/78
2. The oil spill response
plans or plans for response to oil pollution or chemical pollution specified in
Point a, Clause 3 Article 25 of Decree No. 162/2013/ND-CP , amended by Clause 13
Article 3 of Decree No. 37/2022/ND-CP shall comply with regulations at Circular
No. 55/2019/TT-BGTVT dated December 31, 2019 of the Minister of Transport.
3. Toxic substances include
toxic liquid substances, ballast water, tank washings, other residues or
mixtures containing such substances. Noxious liquid substance means any
substances divided into Category X, Y or Z mentioned in Tables 8E/17.1 and
8E/18.1 Part 8E Section II of National Technical Regulations on classification
and construction of sea – going steel ships or other liquid substances
temporarily evaluated as prescribed in Section 6.3 Appendix II Convention
MARPOL are the substances that fall into Category X, Y or Z. To be specific:
a) Category X: substances
that are bio-accumulated and liable to produce a hazard to aquatic life or
human health, mentioned in Table 8E/17.1 Part 8E Section II of National
Technical Regulation on classification and construction of sea – going steel
ships with an “X” in column “c” of that Table or substances temporarily
evaluated as substances into Category X in accordance with 6.3 Appendix II
MARPOL.
b) Category Y: substances
that are bio-accumulated with a short retention of the order of one week or
less mentioned in Table 8E/17.1 Part 8E Section II of National Technical
Regulation on classification and construction of sea – going steel ships with a
“Y” in column “c” of that Table or substances temporarily evaluated as
substances into Category Y in accordance with regulation 6.3 Appendix II MARPOL
c) Category Z: substances
that are slightly toxic to aquatic life, mentioned in Table 8E/17.1 Part 8E
Section II of National Technical Regulation on classification and construction
of sea – going steel ships with a “Z” in column “c” of that Table or substances
temporarily evaluated as substances into Category Z in accordance with
regulation 6.3 Appendix II MARPOL.
Article
19. Violations against regulations on transport of hazardous waste specified in
Article 26 of Decree No. 162/2013/ND-CP
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2. Transport of hazardous
waste is the process of transport of hazardous waste from generation area to
treatment area which may be accompanied by collection, packaging, preservation,
temporary storage, transfer and preliminary processing according to regulations
at Clauses 3 and 4 Articles 83 and 84 of the 2022 Law on Environmental
Protection; Articles 69 and 70 of Government’s Decree No. 08/2022/ND-CP dated
January 10, 2022 on elaboration of some Articles of Law on Environmental
Protection.
3. The license for
hazardous waste management is a common name of practicing licenses for
management/transport/treatment/destruction of hazardous waste specified in
Government’s Circular No. 08/2022/ND-CP dated January 10, 2022 on elaboration
of some Articles of Law on Environmental Protection.
4. The dossier on
registration enclosed with the license for hazardous waste management is a
dossier on management of hazardous waste of an owner of hazardous waste
treatment, destruction or transport establishment or an owner of a source of
hazardous waste specified in Government’s Decree No. 08/2022/ND-CP dated
October 01, 2022 on elaboration of the Law on Environmental Protection;
5. Global positioning
system (GPS) shall be equipped with a vehicle that transports highly hazardous
waste to accurately identify location and record the transport of hazardous
waste at the request of the agency certifying the environmental protection
commitment on or the licensing agency;
6. Specialized equipment
and facilities for collection, packaging, preservation, temporary storage and
transport of hazardous waste fail to meet technical requirements in the
following cases:
a) Failure to have their
circulation registered;
b) Failure to install
equipment for warning and emergency treatment of incidents in case of
operation;
c) Failure to equip
global positioning system (GPS) with the vehicle that transports highly
hazardous waste;
d) Failure to design
specialized equipment and facilities to prevent leakage or release of hazardous
waste into the environment or mixture of hazardous wastes; manufacturing of
specialized equipment and facilities from materials that potentially case
reaction with hazardous waste;
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Article
20. Violations against regulations on sea dumping permit specified in Articles
26a, 26b and 26c of Decree No. 162/2013/ND-CP , amended by Clauses 14, 15 and 16
Article 3 of Decree No. 37/2022/ND-CP
1. Sea dumping is the
deliberate dumping or disposal at sea of all physical objects or other matters
permitted to be dumped at sea as prescribed by the law.
2. List of physical
objects and matters subject to dumping at sea and procedures for issuance of
sea dumping permit are provided in Government’s Decree No. 40/2016/ND-CP dated
May, 15 2016 on elaboration of the implementation of certain Articles of the
2015 Law on Natural Resources and Environment of sea and islands and
regulations of relevant laws.
3. The regulations on
transport, recording, reporting and payment of charges for issuance of sea
dumping permit are specified in 2015 Law on Natural Resources and Environment
of sea and islands.
Article
21. Violation against regulation on assignment of sea areas specified in
Articles 27, 27a and 27b of Decree No. 162/2013/ND-CP , amended in Clauses 17,
18 and 19 Article 3 of Decree No. 37/2022/ND-CP
1. “Assignment of sea
area(s)” means a competent authority deciding to permit an organization or
individual to use one or more certain sea areas for a given period of time in
order to extract and use marine resources specified in Clause 1 Article 2 of
Government’s Decree No. 11/2021/ND-CP dated February 10, 2021 on assignment of
certain sea areas to organizations and individuals for extraction and use of
marine resources.
2. Violations against
regulations on use of a sea area without a decision on sea area assignment:
a) An organization or individual
uses a sea area to extract or use marine resources in case the competent
authority has not decided to assign such sea area, or when the decision on sea
area assignment has been expired, revoked or suspended; the organization or
individual keep using the sea area or the competent authority has not granted
approval for the use of the sea area, the organization or individual keep using
the sea area.
b) From July 15, 2014, an
organization or individual that uses a sea area shall have a decision on assignment
of such sea area (according to regulations at Government’s Decree No.
51/2014/ND-CP dated May 21, 2014 on assignment of given sea areas to
organizations and individuals for extraction and use of marine resource).
It is not considered as a violation if the organization or individual
uses the sea area before July 15, 2014 without the decision on assignment of
sea area.
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a) In case an
organization or individual has a decision on assignment of sea area but fails
to voluntarily pay sea area usage fee,
the amount payable is calculated as follows:
Amount of fees evaded =
specific rates of sea area usage fees (x) actual time limit within which the
regulation on use of sea area is violated
Where:
- Specific rates of sea
area usage fees are provided at Circular No. 18/2021/TT-BTNMT dated October 29,
2021 of the Ministry of Natural Resources and Environment.
- The time limit within
which the violation against regulation on use of sea area is committed is a
period beginning from the date on which the decision on assignment of sea areas
takes effect to the date on which the competent authority inspects and
discovers that the organization or individual has not paid sea area usage fees
b) In case an
organization or individual does not have a decision on assignment of sea area
but still uses such sea area without payment of sea area usage fee, the amount
payable is calculated as follows:
Amount of fees evaded =
actual size of the used sea area (x) the highest specific rates of sea area
usage fees in the range of sea area usage fees (x) actual time limit
within which the violation against regulation on use of sea area is committed
Where:
- Specific rates of sea
area usage fees are provided at Circular No. 18/2021/TT-BTNMT dated October 29,
2021 of the Ministry of Natural Resources and Environment.
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Chapter
III
POWER TO
IMPOSE ADMINISTRATIVE PENALTIES AND RECORD ADMINISTRATIVE VIOLATIONS COMMITTED
WITHIN TERRITORIAL WATERS, ISLANDS AND CONTINENTAL SHELF OF THE SOCIALIST
REPUBLIC OF VIETNAM
Article
22. Power to impose administrative penalties
The power to impose
administrative penalties for violations committed within territorial waters,
islands and continental shelf of the Socialist Republic of Vietnam is specified
in 2012 Law on Handling Administrative Violations, amended in 2020 and
Government’s Decree No. 162/2013/ND-CP dated November 12, 2013 on penalties for
administrative violations committed within territorial waters, islands and
continental shelf of the Socialist Republic of Vietnam; Government’s Decree No.
23/2017/ND-CP dated March, 13 2017 on amendments to some Articles of Decree No.
162/2013/ND-CP and Government’s Decree No. 37/2022/ND-CP dated June, 06 2022 on
amendments to some Articles of Decrees on penalties for administrative
violations against regulations on national defense and cipher; management and
protection of national border; within the territorial waters, islands and
continental shelf of the Socialist Republic of Vietnam.
Article
23. Persons who have power to record administrative violations specified in
Article 33 of Decree No. 162/2013/ND-CP , amended in Clause 8 Article 1 of
Decree No. 23/2017/ND-CP and Clause 20, Article 3 of Decree No. 37/2022/ND-CP
1. The persons who have
power to record administrative violations committed within territorial waters,
islands and continental shelf of the Socialist Republic of Vietnam are
specified in 2012 Law on handling administrative violations, amended in 2020,
Government’s Decree No. 162/2013/ND-CP , Government’s Decree No. 23/2017/ND-CP,
Government’s Decree No. 37/2022/ND-CP and Government’s Decree No.
118/2021/ND-CP.
2. The soldiers of Coast
Guard who have power to record administrative violations specified in Article
33 of Decree No. 162/2013/ND-CP , amended by Government’s Decree No.
23/2017/ND-CP and Government’s Decree No. 37/2022/ND-CP are superintendents who
are on duty.
Chapter
IV
IMPLEMENTATION
PROVISIONS
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This Circular comes into
force from February 16, 2023 and replaces Circular No. 130/2014/TT-BQP dated
September 24, 2014 of the Minister of National Defense on guidelines for
implementation of some Articles of Government’s Decree No. 162/2013/ND-CP dated
November 12, 2013 on penalties for administrative violations committed within
territorial waters, islands and continental shelf of the Socialist Republic of
Vietnam and Circular No. 143/2018/TT-BQP dated September 15, 2018 of the
Minister of National Defense on amendments to some Articles of the Circular No.
130/2014/TT-BQP dated September 24, 2014 of the Minister of National Defense on
guidelines for some Articles of the Government’s Decree No. 162/2013/ND-CP
dated November 12, 2013 on penalties for administrative violations committed
within territorial waters, islands and continental shelf of the Socialist
Republic of Vietnam.
Article
25. Transitional clauses
In the cases where any of
the documents referred to in this Circular is amended or replaced, the newest
one shall apply.
Article
26. Responsibility of implementation
The Commander of the
Vietnam Coast Guard, the heads of forces who have power to impose
administrative penalties specified in Decree No. 162/2013/ND-CP dated November
12, 2013, amended by Decree No. 23/2017/ND-CP dated March 13, 2017 and
Government’s Decree No. 37/2022/ND-CP dated June, 06 2022, and relevant
agencies and units shall be responsible for implementation of this Circular./.
PP. MINISTER
DEPUTY MINISTER
Lieutenant General Vo Minh Luong
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