Circular 41/2021/TT-BGTVT Amendments to Circular 37/2018/TT-BGTVT

• Official number: 41/2021/TT-BGTVT
• Legislation Type: Circular
• Organization: The Ministry of Transportation and Communications
• Signer: Le Dinh Tho
• Issued Date: 31/12/2021

MINISTRY OF TRANSPORT ----------	SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No. 41/2021/TT-BGTVT	Hanoi, December 31, 2021

CIRCULAR

ON AMENDMENTS TO CIRCULAR NO. 37/2018/TT-BGTVT DATED JUNE 7, 2018 OF MINISTER OF TRANSPORT ON MANAGEMENT, OPERATION AND MAINTENANCE OF ROAD CONSTRUCTION WORKS

Pursuant to the Law on Road Traffic No. 23/2008/QH12 dated November 13, 2008;

Pursuant to the Government’s Decree No. 12/20017/ND-CP dated February 10, 2017 defining functions, rights, obligations and organizational structure of the Ministry of Transport;

Pursuant to the Government’s Decree No. 06/2021/ND-CP dated January 26, 2021 on quality control, construction, and maintenance of construction works;

Pursuant to Decree No.32/2014/ND-CP dated April 22. 2014 of the Government on management, operation and maintenance of expressway facilities;

Pursuant to the Government’s Decree No. 33/2019/ND-CP dated April 23, 2019 on management, use and operation of road traffic infrastructure;

At the request of Director of Department of Transport Infrastructure and Director General of Directorate for Roads of Vietnam;

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Article 1. Amendments to Circular No. 37/2018/TT-BGTVT dated June 7, 2018 of Minister of Transport on management, operation and maintenance of road construction works

1. Certain clauses of Article 2 shall be amended as follows:

a) Clause 1 of Article 2 shall be amended as follows:

“1. road work maintenance means a collection of tasks aimed at ensuring normal and safe operation of the works as designed during the operation period. The maintenance shall include at least one of the following tasks: inspecting, monitoring, maintaining and repairing the works; supplementing and replacing items and equipment for the operation and use of road works to ensure safety as well as testing their quality but not changing functions and scale of such works.”

b) Clauses 10 and 11 shall be added to Article 2 as follows:

10. Other auxiliary works and equipment specified in Clause 2, Article 3 of the Road Traffic Law include: piles of road safety corridor boundaries (referred to as boundary markers), land clearance lines, land boundary lines of roads; system of auxiliary works and equipment (including software to serve the management, operation and maintenance of road works).

11. The Intelligent Transportation System (hereinafter referred to as the ITS) consists of:

a) The system collects and displays information on the road of information on traffic situation and displays data on road traffic control and signaling;

b) The system transmits data from the road to the processing system and from the processing system to the electronic signs;

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d) The service infrastructure includes the working house and the necessary equipment."

2. Certain points of clause 5 Article 3 shall be amended as follows:

a) Points b, c and d clause 5 Article 3 shall be amended as follows:

b) For power and lighting supply works: implemented in accordance with regulations of Decree No. 06/2021/ND-CP dated January 26, 2021 on quality control and maintenance of construction works (hereinafter referred to as Decree No. 06/2021/ND-CP);

c) For traffic lights and equipment installed to the works: implemented in accordance with regulations of Decree No. 06/2021/ND-CP and the maintenance process provided by the supplier or installer of the equipment.

d) The management, operation and maintenance of items of vehicle load inspection stations, road toll booths, ITS and other road auxiliary works and equipment must be suitable for each type and level of the works and levels of the works items."

b) Point dd shall be added to clause 5 Article 3 as follows:

"dd) Equipment systems (including software) for the management of road databases, ITS and databases on maintenance of road works as prescribed in Point a Clause 3 Article 35 of Decree No. 06/2021/ND-CP.

3. Certain points and clauses of Article 4 shall be amended as follows:

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a) Road work inspection shall be conducted by using dedicated equipment, by regular monitoring metrics (if any) or through observation where necessary;

b) Road work inspection includes the inspection based on technical standards and regulations; approved maintenance process; regular, periodic and irregular inspections for the purpose of discovering signs of degradation or damage of construction works and equipment installed as the basis for construction work maintenance.”

b) Point b clause 2 Article 4 shall be amended as follows:

"b) The list of road works subject to monitoring during operation and use specified in Appendix I enclosed herewith. The monitoring of works and parts of road works shall be carried out according to the monitoring tasks approved by competent agencies and organizations in accordance with Decree No. 06/2021/ND-CP and other relevant laws."

c) Clause 3 of Article 4 shall be amended as follows:

“3. Road construction quality inspection includes the inspection and assessment of quality, damage causes, value, duration of use and other technical specifications of the construction products, road work's components or road construction works through monitoring, experiment in combination with calculation and analysis. Quality assessment that serves maintenance works shall be carried out in accordance with clause 5 Article 33 of Decree No. 06/2021/ND-CP.

d) Clauses 4 and 5 shall be added to Article 4 as follows:

“4. Road work maintenance must be carried out in accordance with Decree No. 06/2021/ND-CP, other relevant provisions of law, technical standards promulgated by competent state agencies and the maintenance process of road works that are approved.".

5. 5. Road work repair means repairing works’ damage, degradation and handling of parts and items of works showing signs of danger, failing to ensure safety for operation and use discovered during the operation for the purpose of ensuring the normal operation and safety of such road works. Road work repair includes:

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b) irregular repair of works that shall be done when the work or work's components get damaged or suffers unexpected effects from the wind, storm, flood, earthquake, fire or being hit and other unexpected impacts that must be urgently repaired; or when the works, work's component shows signs of degradation which poses a risk to the safety of work operation; handling of traffic accidents and most frequently reported locations of road traffic accidents; take measures to ensure urgent traffic when handling landslides and traffic jams or when rectifying road breakages or road works collapse; repairing, replacing equipment, procuring the software being operated for use when damaged, damaged, hacked in order to restore the operation of the equipment system for the management, maintenance and exploitation of road works."

4. Point d clause 1 Article 5 shall be amended as follows:

“d) impose penalties, as authorized or request regulatory agencies to impose penalties on organizations and individuals violating management, operation and maintenance of road works in the central road network;”

5. Point b clause 1 Article 6 shall be amended as follows:

“b) Contractors supplying equipment installed to the works must transfer the investor the maintenance process of equipment provided before the installation of those equipment;”

6. Clause 1 of Article 7 shall be amended as follows:

1. The maintenance process of road works must be made as prescribed in clause 1 in Article 31 of Decree No. 06/2021/ND-CP.”

7. Point b Clause 1 and point a clause 2 Article 8 shall be amended as follows:

a) Point b clause 1 Article 8 shall be amended as follows:

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b) Point a clause 2 Article 8 shall be amended as follows:

a) For central road network receiving funding from state budget: the Ministry of Transport shall grant approval for maintenance process applied to graded-I works, specially-graded works and other works which is then submitted to Directorate for Roads of Vietnam for permission;”

8. Point g clause 2 Article 13 shall be amended as follows:

“g) send the documents prescribed in points a, b, c, d, dd and e of this clause to road management agencies, the owner or manager, user of road work and retain the written form of these documents on the system of bridge management, road surface management, road asset management."

9. Clause 6 of Article 16 shall be amended as follows:

“6. Handling of road work incidents during operation and use:

a) The classification, reporting, handling and finding causes of incidents shall comply with regulations in Articles 43, 44, 45, 46, and 47 of Decree No. 06/2021/ND-CP;

b) Investors, construction contractors, owners, managers, users of works, road works maintenance contractors and related organizations and individuals are responsible for handling road work incidents according to the provisions of Article 45 of the Decree No. 06/2021/ND-CP and take measures to ensure traffic safety for works with incidents.

c) When there is a road work incident on the central road system, in addition to reporting the work incident as prescribed in Article 44 of Decree No. 06/2021/ND-CP, the road management agency, owner or managers, users of road works, road maintenance contractors, enterprises investing in construction and operation management of road works must immediately report to the Ministry of Transport and the Directorate for Roads of Vietnam. The reporting time and the report contents are specified in Clauses 1, 2 and 4, Article 44, Decree No. 06/2021/ND-CP.”

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“Chapter 4

OPERATION, USE, MAINTENANCE OF ROAD WORKS”.

11. Article 17 shall be amended as follows:

“Article 17. Road work maintenance plan

1. The plan for maintenance of works in the road system funded by the State budget includes the following information: name of the road work, list, work items, and tasks to be performed; main quantity, cost; performance time and method of performance according to the attached forms and documents specified in Appendix II issued with this Circular.

Tasks in the road construction maintenance plan funded by the State budget include:

a) Maintenance (including payment for electricity consumption, maintenance costs for lighting systems, other works and ancillary equipment specified in Clause 10, Article 2 of this Circular); project brought forward from previous year to next year; periodic repair, unexpected repair (including expenses for compensation, site clearance, clearance, treatment and destruction of bombs, mines and explosives when it is necessary to recover land when necessary to deal with the most frequently/frequently reported locations of traffic accidents, supplementing emergency roads and traffic safety items); quality verification; construction safety assessment; construction inspection; monitoring works; establish the maintenance process, the operation and exploitation process of the work in the process of operation and use; setting norms in the field of maintenance and other tasks according to the provisions of Decree No. 06/2021/ND-CP and Article 4 of this Circular;

b) Price support (the part not included in the price) for ferry services; repair, replace and supplement ferries, means and equipment for river crossing; procurement of additional equipment and supplies for ferries and means of river crossing equipment;

c) Manage and operate the vehicle load checking system; inspecting, repairing, supplementing and replacing equipment and means of the vehicle weighing and checking system;

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dd) Management and operation of the following systems: bridge management; survey, collect, store and operate the database of roads and road traffic infrastructure; building and operating a database on construction maintenance, making and managing construction maintenance records according to the provisions of Point a, Clause 3, Article 35 of Decree No. 06/2021/ND-CP; supervision of toll collection and other road management and operation systems; but does not include the tasks that have been fully covered by the administrative autonomy funds of the agencies and units;

e) Supplement or replace work items, equipment, repair software so that the operation and use of the works are properly functional and safe as prescribed at Point b, Clause 3, Article 35 of Decree No. 06/ 2021/ND-CP; supplementing other necessary systems and equipment for effective management, maintenance, operation and exploitation of road works;

g) To be on duty to ensure traffic, to be on duty at branch roads entering and leaving expressways, tunnel gates according to maintenance and operation procedures or in case of emergency to ensure traffic safety and deal with traffic jams at the request of the road management agency; carry out traffic safety appraisal for road works in operation according to regulations;

h) Procurement of additional backup supplies and equipment in service of natural disaster prevention and remediation; manage, protect and maintain the reserve of supplies in service of natural disaster prevention and control;

i) Preservation of investment works in the form of PPP includes: management, regular maintenance, repair to ensure safety and prevent deterioration, operation, exploitation and use of PPP works after receiving them from the investor (including the time to certify the entire people's ownership of the property); carry out inspection of PPP works before receiving the transfer in accordance with the law on investment under the mode of public-private partnership;

k) Works performed by state agencies that sign PPP contracts to manage, operate and maintain road works to ensure traffic safely and smoothly for the following cases: the state agency decides to stop toll collection when the financial plan is secured; when one party signing the project contract terminates the contract ahead of time; investors do not implement the project or do not conduct management and maintenance, leading to traffic unsafety;

l) Annual road works maintenance planning and estimation works (including the cost of using the pavement data survey technology system); other tasks for the owner or manager to use the road work to organize the supervision and acceptance of the regular maintenance of road works;

m) Other tasks as prescribed by law;

n) In case of limited capital, the maintenance plan specified in this Clause must give priority to maintenance works, projects carried forward from the previous year to the next year, repairing necessary items to ensure safety of the construction works and traffic on roads, road bridges, safety when operating and exploiting ferry terminals, pontoon bridges, road tunnels; give priority to the performance of work related to overcoming the risk of collapse of the works; ferry service support; reduction in frequently reported locations of accidents and other necessary tasks decided by the competent authority approving the maintenance plan.

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a) Based on the state of the road works, information on the size and structure of the works, the history of repair and maintenance, and other data on the roads, road works, structural properties; road traffic infrastructure and works, parts attached to road traffic infrastructure assets, technical standards and maintenance procedures, norms, specified in Clause 1 of this Article, annually, the Directorate for Roads of Vietnam shall submit to the Ministry of Transport before May 30 the management and maintenance needs and work, the list of priority projects for investment preparation next year;

b) Before June 30, the Ministry of Transport shall approve the management and maintenance needs for the following year; approving the work, the list of prioritized projects allows to prepare investment under the maintenance plan next year. Management and maintenance needs are determined in accordance with the law on state budget and made according to the form specified in Appendix II issued with this Circular;

c) Based on the work and list at Point b of this Clause, the Directorate for Roads of Vietnam shall organize the formulation, appraisal and approval of the project, the economic and technical report on the repair of the works, the cost estimate for the project, other necessary works before October 31;

During the preparation, appraisal and approval of a project or an economic-technical report on road work repair, the Directorate for Roads of Vietnam is entitled to adjust the scope (length, explanation of the road to be repaired), solutions technical, additional traffic safety items, but must not exceed the budget stated for the approved list. In cases where it is necessary to ensure the safety of load-bearing structural components of bridges, tunnels and ferries, approvals may not exceed 20% of the cost of the approved list of load-bearing structures repair;

d) Based on the approved contents at Point c of this Clause and additional necessary management and maintenance tasks that are outside the list specified at Point b of this Clause, the Directorate for Roads of Vietnam summarizes and submits them to the Ministry of Transport the following year's maintenance plan by November 10 of each year. Within 15 days from the date of being assigned or notified by a competent authority of the state budget revenue and expenditure estimates, the Ministry of Transport shall appraise and approve the maintenance plan for the following year;

d) Adjustment of road works maintenance plan

In case it is necessary to supplement the management, maintenance and operation of road works in addition to the approved maintenance plan, the Directorate for Roads of Vietnam shall submit to the Ministry of Transport for approval the investment preparation and adjustment of the maintenance plan to organize implementation.

3. Plans for maintenance of road works using capital sources other than those specified in Clauses 1 and 2 of this Article must comply with Article 32 of Decree No. 06/2021/ND-CP and regulations other relevant provisions.

4. Road works maintenance plan implemented by public-private partnership (PPP) method shall comply with Clause 3 of this Article and the following regulations:

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b) In case it is necessary to adjust or supplement the work, volume and cost of performing the work of management, operation and maintenance of road works due to force majeure events or when other tasks which incur maintenance costs or quantity in addition to the signed project contract, the project enterprise shall request the project contract signing agency to consider and negotiate additional agreements in accordance with the provisions of the project contract;

c) For construction incidents, unexpected repairs or force majeure incidents, the project enterprise is responsible for implementing the work in accordance with the provisions of the law on construction, laws on natural disaster prevention and control, relevant laws and regulations in this Circular to ensure safety for people, vehicles and construction works.”

12. Clause 4 of Article 18 shall be amended as follows:

“4. For road works not specified in Clauses 1, 2 and 3 of this Article, the owner, manager and user of the road work shall organize the implementation of the maintenance plan for the work invested by them. built according to the provisions of law and this Circular.”

13. Certain points and clauses of Article 19 shall be amended as follows:

a) Clause 4 of Article 19 shall be amended as follows:

“4. Periodic repair and unexpected repair works

a) Periodic repair of road works shall comply with the provisions of Point a, Clause 5, Article 4 of this Circular. For periodic repair of road works funded by the state budget, the provisions of Points a and b, Clause 4, Article 35 of Decree No. 06/2021/ND-CP shall be complied with;

b) Unscheduled repair of road works shall comply with the provisions of Point b, Clause 5, Article 4 of this Circular. For unexpected repair of road works belonging to the central road system funded by the state budget (except for the case specified at point c of this clause), the following shall be done:

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The agency that decides on the unexpected repair work at this point is responsible according to its competence for deciding, organizing the implementation, using funds, implementing methods and completing the dossier according to regulations applicable to the school. case of unexpected repair; the Directorate for Roads of Vietnam reviews and summarizes monthly implementation results and sends them to the Ministry of Transport.

c) For urgent construction works, disaster recovery shall comply with the regulations of the Minister of Transport on prevention, combat and overcoming of consequences of natural disasters in the road sector; the handling of traffic accident black spots shall comply with the regulations of the Minister of Transport on handling of dangerous locations on the road being operated. The Directorate for Roads of Vietnam is responsible for the use of funds, methods of implementation and completion of documents according to regulations.

d) The Directorate for Roads of Vietnam is responsible for summarizing, submitting to the Ministry of Transport for approval or adjusting the maintenance plan for the cases specified at Points b and c of this Clause.

14. Article 19a shall be added as follows:

 “Article 19a. Safety assessment of road works

1. The order and contents of safety assessment of road works comply with the provisions of Articles 36 and 37 of Decree No. 06/2021/ND-CP. As for the assessment of the working capacity of load-bearing structures and road construction parts that are at risk of causing unsafety, it is carried out through the inspection and works specified in Article 4, Article 5. Decree 06/2021/ND-CP; inspection and assessment of conditions for operation and exploitation of road works shall comply with the provisions of Clause 2, Article 37 of Decree No. 06/2021/ND-CP.

2. Responsibility for assessment and confirmation of road work safety assessment results

a) Responsibility to organize the safety assessment of road works as prescribed in Article 38 of Decree No. 06/2021/ND-CP;

b) The certification of the results of the actual road work safety assessment as prescribed in Article 39 of the Decree No. 06/2021/ND-CP.

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4. The time limit for construction safety assessment shall comply with the provisions of law, technical regulations and standards promulgated by competent state agencies; approved maintenance and operation procedures; the request of the owner, the manager using the work or the regulations of the manufacturer supplying equipment installed in the work.

5. The list of road works that must be considered by the competent authority and notified of comments on the results of the safety assessment of road works is specified in Appendix VI issued with this Circular.”

15. Certain points and clauses of Article 20 shall be amended as follows:

a) Point c clause 1 Article 20 shall be amended as follows:

“c) The quality management and maintenance of road works shall comply with the provisions of the Construction Law, the provisions of the law on quality management, construction and maintenance of construction works, and regulations. provisions of the law on relevant regulations, standards and provisions of law.”

b) Clauses 3 and 4 Article 20 shall be amended as follows:

“3. The warranty period for the repair of road works is in accordance with the law on quality management, construction and maintenance of construction works.

4. In case the road works require monitoring or quality inspection, the provisions of Clause 6, Article 34 of Decree No. 06/2021/ND-CP and the provisions of this Circular must be complied with.”

16. Point b of clause 1 Article 22 shall be amended as follows:

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17. Clause 1 of Article 26 shall be amended as follows:

“1. Funding sources for management, operation, exploitation and maintenance of road works in accordance with the law on state budget, Clause 2, Article 35 of Decree No. 06/2021/ND-CP, and other regulations of relevant legislation.”

18. Article 27 shall be amended as follows:

“Article 27. Expenses for management, operation, and maintenance of road works

1. Expenses for management, operation, exploitation and maintenance of road works are all expenses for performing the tasks in the approved maintenance plan and necessary additional and adjustment works outside the plan. maintenance specified in this Circular and relevant laws.

2. Expenses for performing maintenance, management and operation works, work estimates include direct costs of performing management, maintenance and operation of works and costs of performing the following tasks:

a) Expenses for consulting services for maintenance of road works as prescribed: survey in service of design, project formulation or economic and technical report on repair of works; elaborating, verifying technical designs, designing repair construction drawings; make estimates of maintenance activities; preparation of bidding documents, dossiers of requirements and evaluation of bids and dossiers of proposals for contractor selection; supervision of survey, supervision of construction and repair, supervision of repair and replacement of construction equipment; establish, verify (in case there is no maintenance process) or adjust the maintenance process, the operation and exploitation process of the works; inspecting the quality of works in service of maintenance; monitoring road works according to regulations; irregularly inspect works as required (if any); assess the safety of the works during the exploitation and use; perform other consulting works as prescribed by law;

b) Expenses for management of the repair project in accordance with the law on construction;

c) Other expenses include expenses for carrying out the process of construction maintenance such as: audit, verification and approval of settlement; construction insurance; appraisal fees (if any) and other related expenses in accordance with the law on construction, the law on prices and other relevant laws;

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3. Expenses for management, operation, exploitation and maintenance of road works shall be determined according to the provisions of Article 35 of Decree No. 06/2021/ND-CP, the provisions of the law on construction and the provisions of the law. relevant law.

Expenses for management, maintenance and operation of road works using state capital, including non-budget state capital, and investment works in the form of PPP shall comply with the provisions of law on management. quality, construction and maintenance of construction works, law on construction costs, law on prices, law on delivery of plans, ordering, bidding for the provision of public products and services interests and relevant laws.

4. Expenses for management, maintenance and operation of road works may use the following methods to determine appropriate types of expenses:

a) For the cost of the project, the economic and technical report on the repair of the work, the consulting, project management, inspection, monitoring and evaluation of the safety of the work and other tasks with nature of construction investment shall comply with the provisions of the law on construction and other relevant laws;

b) For the regular management and maintenance work using the central budget in the form of bidding and ordering, the regulations of the Minister of Transport shall guide the method of formulating plans. pricing, price management, public administrative services, management and maintenance of road traffic infrastructure, and services for the operation and exploitation of road ferry terminals on the national highway system using recurrent expenditures from the state budget. central when making the order method;

c) For the regular management and maintenance of PPP projects, the regular management and maintenance using the local budget and other capital sources shall comply with the provisions of law. v a specified at point b of this clause for implementation;

d) During the preparation of feasibility study reports for investment projects under the PPP method for investor selection, it is possible to determine from data on costs of management, maintenance and operation of similar works in progress. In case of using this method, the cost of management, operation, exploitation and maintenance of the work is determined on the basis of the scale, capacity or service capacity of the work or structural part of the work under consideration and data on management, maintenance, operation and exploitation costs of similar works that have been or are being implemented of the same type, grade, scale, capacity or service capacity to determine the cost of management, maintenance, operation and exploitation. The cost data when used need to be converted, calculated on the time of costing, construction area and adjusted and supplemented with other costs if any to suit specific conditions of projects or works;

dd) In case it is necessary to determine the cost of management, operation, exploitation and maintenance in service of bidding for investor selection when the work has no technical design, construction design and construction process, the process of maintenance, operation and exploitation process has not yet been established, there is no data on management, maintenance, operation and exploitation costs of similar works to determine the costs as prescribed at point a, point b and point d in this Clause, based on the approved investment project, technical instructions for the operation, exploitation and maintenance of the works shall be drawn up. Based on this technical instruction, the basic design of the project, the type of technological equipment, the operation and exploitation of the works, the mode of wear and tear, and the equipment's useful life, the duration (lifetime of the construction works, etc.) to determine the volume of work to be performed, the quantity, volume and time of replacement and maintenance of equipment and work parts at the stage of operation, exploitation, and maintenance of the work as the basis to determine the cost of management, operation, exploitation and maintenance of the works according to the guidance in Appendix V issued with this Circular.

5. Contingency costs due to price inflation during the operation and exploitation period shall be determined according to the law on management of construction costs and relevant laws.

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Article 2. Supplementing, annulling and replacing a number of articles, clauses, points and annexes of Circular No. 37/2018/TT-BGTVT dated June 7, 2018 of the Minister of Transport providing regulations on management, operation and maintenance of road works as follows:

1. Point c, Clause 1, Article 5, Article 23, Article 24 are annulled.

2. Appendices No. I, Appendix II, Appendix IV and Appendix V shall be replaced with Appendix I, Appendix II, Appendix III and Appendix IV issued together with this Circular.

3. Supplementing Appendix VI with Appendix V issued together with this Circular.

Article 3. Effect

1. This Circular comes into force as of February 15, 2022.

2. In case the documents cited in this Circular are amended, supplemented or replaced, new documents shall prevail.

3. Chief of Office of the Ministry, Chief Inspector of the Ministry, Directors of Departments, General Director of Directorate for Roads of Vietnam, Directors of Departments of Transport, Departments of Transport and Construction of provinces and centrally-run cities The central government, heads of relevant agencies, organizations and individuals are responsible for the implementation of this Circular./.

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PP. MINISTER
DEPUTY MINISTER




Le Dinh Tho