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

DECREE

AMENDMENTS TO SOME ARTICLES OF THE DECREES ON BUSINESS CONDITIONS IN THE MARITIME FIELD

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

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

Pursuant to the Law on Investment dated November 26, 2014 and the Law on amendments to Article 6 and Appendix 4 on the list of business lines subject to conditions stipulated in the Law on Investment 2014;

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

At the request of the Minister of Transport;

The Government hereby promulgates a Decree on amendments to some Articles of the Decrees on business conditions in the maritime field.

Article 1. Amendments to some Articles of the Government’s Decree No. 29/2017/ND-CP dated March 20, 2017 on conditions for seafarers training facilities and seafarers recruitment and placement service providers

1. Article 4 is amended as follows:

“Article 4. Conditions for training infrastructure and equipment

1. Training infrastructure and equipment must comply with national technical regulations promulgated by the Minister of Transport.

2. A certificate of quality management system in accordance with ISO standard is issued by a certification body not later than 18 months from the issuance date of the certificate of eligibility for seafarers training.

3. An electronic database of management of seafarer’s certificates for the searching purpose is available in accordance with STCW Convention not later than 12 months from the issuance date of the certificate of eligibility for seafarers training.”

2. Article 5 is amended as follows:

“Article 5. Conditions to be satisfied by lecturers and instructors

1. A theoretical lecturer must obtain at least a relevant bachelor's degree.

2. A practical lecturer or instructor must obtain at least a main instructor certificate or an equivalent certificate issued by International Maritime Organization (IMO) or an organization recognized by IMO in accordance with STCW Convention for particular type of training program prescribed by the Minister of Transport.

3. Apart from the regulations specified in this Decree, seafarers training facilities shall comply with relevant regulations of laws on education and vocational education.”

3. The Form of a written explanation about eligibility for provision of training services is provided in the Appendix issued herewith.

4. The Form No. 02 specified in the Appendix enclosed with the Government’s Decree No. 29/2017/ND-CP dated March 20, 2017 is repealed.

Article 2. Amendments to some Articles of the Government’s Decree No. 70/2016/ND-CP dated July 01, 2016 on conditions for provision of maritime safety services

1. Article 5 is amended as follows:

“Article 5. Conditions for provision of aids to navigation, waters, public navigational channel and sea lane installation, operation and maintenance services

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

1. It must be a wholly state-owned enterprise and have its Charter approved by the Minister of Transport.

2. The person in charge of provision of aids to navigation, waters, public navigational channel and sea lane installation, operation and maintenance services must obtain at least a bachelor’s degree in economics or engineering and have at least 05 years’ experience of working in the field of maritime safety assurance.

3. It must have at least 01 wharf and 01 workshop for manufacturing and maintaining aids to navigation.”

2. Article 6 is amended as follows:

“Article 6. Conditions for provision of aids to navigation, waters and dedicated navigational channel installation, operation and maintenance services

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

1. It must be an enterprise established under the law.

2. The person in charge of provision of aids to navigation, waters and dedicated navigational channel installation, operation and maintenance services must obtain at least a bachelor’s degree in economics or engineering and have at least 05 years’ experience of working in the field of maritime safety assurance.”

3. Article 7 is amended as follows:

“Article 7. Conditions for provision of waters, public navigational channels and sea lane survey services to serve the announcement of Notice to mariners

A provider of waters, public navigational channels and sea lane survey services to serve the announcement of Notice to mariners must satisfy the following conditions:

1. It must be a wholly state-owned enterprise and have its Charter approved by the Minister of Transport.

2. The person in charge of provision of waters, public navigational channels and sea lane survey services must obtain at least a bachelor’s degree in economics or engineering and have at least 05 years’ experience of working in the field of maritime survey.

3. It must have at least dedicated survey equipment including echo sounder, equipment for determination of coordinates and elevation, side scan sonar, tide gauge, heave compensator, velocimeter and dedicated survey software”.

4. Article 8 is amended as follows:

“Article 8. Conditions for provision of waters and dedicated navigational channel survey services to serve the announcement of Notice to mariners

A provider of waters and dedicated navigational channel survey services to serve the announcement of Notice to mariners must satisfy the following conditions:

1. It must be an enterprise established under the law.

2. The person in charge of provision of waters and dedicated navigational channel survey services must obtain at least a bachelor’s degree in economics or engineering and have at least 05 years’ experience of working in the field of maritime survey.

3. It must have at least dedicated survey equipment including echo sounder, equipment for determination of coordinates and elevation, side scan sonar, tide gauge, heave compensator, velocimeter and dedicated survey software”.

5. Article 10 is amended as follows:

“Article 10. Conditions to be satisfied by Notices to mariners service providers

A provider of Notices to mariners service prescribed in Clause 2 Article 9 of this Decree must satisfy the following conditions:

1. It must be a wholly state-owned enterprise and have its Charter approved by the Minister of Transport.

2. The person in charge of provision of Notices to mariners service must obtain at least a bachelor’s degree in economics or engineering and have at least 05 years’ experience of working in the maritime field.”

6. Article 11 is amended as follows:

“Article 11. Conditions for provision of regulatory service to ensure maritime safety within waters and public navigational channels

A provider of regulatory service to ensure maritime safety within waters and public navigational channels must satisfy the following conditions:

1. It must be a wholly state-owned enterprise and have its Charter approved by the Minister of Transport.

2. The person in charge of provision of regulatory service must obtain at least a bachelor’s degree in economics or engineering and have at least 05 years of experience in regulation of maritime safety assurance.”

7. Article 12 is amended as follows:

“Article 12. Conditions for provision of regulatory service to ensure maritime safety within waters and dedicated navigational channels

A provider of regulatory service to ensure maritime safety within waters and dedicated navigational channels must satisfy the following conditions:

1. It must be an enterprise established under the law.

2. The person in charge of provision of regulatory service must obtain at least a bachelor’s degree in economics or engineering and have at least 05 years of experience in regulation of maritime safety assurance.”

8. Article 13 is amended as follows:

“Article 13. Organization and capital conditions

A provider of survey, preparation and issuance services of nautical charts of seaport waters, navigational channels and sea lanes, and formation and issuance services of maritime safety publications and documents must be an enterprise established under the law, be a wholly state-owned enterprise and have its Charter approved by Minister of Transport.”

9. Article 14 is amended as follows:

“Article 14. Personnel and infrastructure conditions

A provider of survey, preparation and issuance services of nautical charts of seaport waters, navigational channels and sea lanes, and formation and issuance services of maritime safety publications and documents must meet the following personnel and infrastructure conditions:

1. The person in charge of provision of survey, preparation and issuance services of nautical charts of seaport waters, navigational channels and sea lanes, and formation and issuance services of maritime safety publications and documents must obtain at least a bachelor’s degree in economics or engineering and have at least 05 years’ experience of working in the field of maritime survey.

2. It must have at least dedicated survey equipment including echo sounder, equipment for determination of coordinates and elevation, side scan sonar, tide gauge, heave compensator, velocimeter, dedicated survey software and software used for editing and publishing physical and electronic nautical charts.”

10. Article 15 is amended as follows:

“Article 15. Organization and capital conditions

An electronic maritime information service provider must be an enterprise established under the law, be a wholly state-owned enterprise and have its Charter approved by Minister of Transport.”

11. Article 16 is amended as follows:

“Article 16. Personnel and infrastructure conditions

A electronic maritime information service provider must meet the following personnel and infrastructure condition: The person in charge of provision of electronic maritime information service must obtain at least a bachelor’s degree in maritime information or telecommunication – electronics engineering and have at least 05 years’ experience of working in the field of electronic maritime information.”

12. Article 18 is amended as follows:

“Article 18. Personnel and infrastructure conditions

A maritime pilotage service provider must meet the following personnel and infrastructure conditions:

1. The person in charge of provision of maritime pilotage service must be an expert pilot.

2. It must have sufficient number of pilots who must have operational area certificates granted in conformity with the assigned ship navigation route. The minimum number of pilots and means for taking and returning pilots shall be determined as follows:

a) The minimum number of pilots of various classes shall be determined according to the ship navigation route, number of ships and deadweight tonnage of the ship operation on the route in the previous 03 years (for newly opened ship navigation route, the minimum number of pilots of various classes shall be determined according to the number of ships and deadweight tonnage of the ship expected to operate within the route in 03 first years). The maximum number of days that employees work shall comply with regulations of law. The minimum number of pilots on each route must ensure the demand for pilotage service is fully satisfied and standby pilots account for at least 10% of total pilots.0}

b) The minimum number of means for taking and returning pilots shall be determined according to the number of ships annually piloted by the pilotage service provider and maritime conditions that exist at the ship piloting zone.

c) The Vietnam Maritime Administration shall publish the minimum number of pilots of various classes and means for taking and returning pilots on ship navigation routes; assign compulsory pilotage areas and ship navigation routes to pilotage service providers according to the principle: Each provider shall only provide maritime pilotage service on one ship navigation route.

13. Article 20 is amended as follows:

 “Article 20. Organization conditions

An obstruction removal service provider must be an enterprise established under the law.”

14. Article 22 is amended as follows:

“Article 22. Conditions to be satisfied by importers of marine flares

1. It must be an enterprise established under the law.

2. It must satisfy all fire fighting requirements as prescribed by law. ”

Article 3. Amendments to some Articles of the Government’s Decree No. 160/2016/ND-CP dated November 29, 2016 on conditions for sea transport business, provision of shipping agency services and towage services

1. Article 4 is amended as follows:

“Article 4. General conditions for sea transport business

An organization involved in sea transport business must be an enterprise or cooperative established under the law (hereinafter referred to as “the enterprise”).

2. Article 5 is amended as follows:

“Article 5. Conditions to be satisfied by enterprises involved in international sea transport business

Apart from the conditions specified in Article 4 of this Decree, an enterprise involved in international sea transport business must satisfy the following documents:

1. Regarding finance: it is required to have a guarantee with a minimum of VND 05 billion or purchase insurance to fulfill the obligations of the ship owner to seafarers as prescribed.

2. Regarding watercraft: At least 01 seagoing vessel is permitted for use. Any seagoing vessel flying a Vietnamese national ensign shall comply with the National Technical Regulation issued by the Minister of Transport.

3. During its operation, the enterprise shall establish or hire management boards and personnel as follows:

a) Regarding management boards: Management boards include a safety management board established in accordance with the International Safety Management Code (ISM Code) and a maritime security management division established in accordance with the International Ship and Port Facility Security Code (ISPS Code);

b) Regarding personnel: The person in charge of maritime security management shall be trained and granted certificates in accordance with regulations of the Minister of Transport.”

3. Article 6 is amended as follows:

“Article 6. Conditions to be satisfied by enterprises involved in inland sea transport business

Apart from the conditions specified in Article 4 of this Decree, an enterprise involved in inland sea transport business must satisfy the following conditions:

At least 01 seagoing vessel flying Vietnamese national ensign is permitted for use in accordance with the National Technical Regulation issued by the Minister of Transport.”

4. Article 12 is amended as follows:

“Article 12. Conditions to be satisfied by staff members of a shipping agency

Any staff member of a shipping agency must be a Vietnamese citizen and hold certificates in ship agent profession as prescribed by the Minister of Transport.”

5. Article 13 is amended as follows:

“Article 13. Conditions for provision of towage services

1. A provider of towage services in Vietnam must be an enterprise or cooperative established as prescribed by law. In a case where a foreign-invested enterprise provides towage services, the foreign investors’ holding must not exceed 49% of the enterprise’s charter capital.

2. At least 01 tugboat is permitted for use. Such tugboat must fly Vietnamese national ensign.”

6. Article 18 is amended as follows:

“Article 18. Transition clauses

Enterprises engaging in shipping agency services or towage services that are established before the effective date of this Decree shall keep operating; from the effective date of this Decree, those enterprises must satisfy all conditions for sea transport business and provision of shipping agency services/towage services as prescribed in this Decree.”

7. Clause 3 Article 7; Articles 8, 9 and 10; Clause 3 Article 14; Clause 3 Article 15; Forms No. 01 and 02 in the Appendix enclosed with the Government's Decree No. 160/2016/ND-CP dated November 29, 2016 are repealed.

Article 4. Amendments to some Articles of the Government’s Decree No. 114/2014/ND-CP dated December 26, 2014 on entities eligible and conditions for import and dismantlement of used ships

1. Clause 1 of Article 7 is amended as follows:

“1. A ship dismantlement enterprise shall be issued with a license for import of used ships for dismantlement by the Ministry of Transport if it:

a) is established as prescribed by law;

b) has a division in charge of occupational safety and environmental protection;

c) has a legal capital of VND 50 (fifty) billion.”

2. Article 12 is amended as follows:

“Article 12. Conditions for putting a ship dismantlement establishment into operation

1. The ship dismantlement establishment must have infrastructure and equipment in accordance with national technical regulations promulgated by the Minister of Transport.

2. The ship dismantlement establishment must satisfy environmental safety requirements as prescribed by law.”

Article 5. Amendments to some regulations of the Government’s Decree No. 37/2017/ND-CP dated April 04, 2017 on conditions for seaport operations

1. Article 5 is amended as follows:

“Article 5. Conditions to be satisfied port-operating enterprises

1. Port-operating enterprises shall be established as prescribed by law.

2. If a port-operating enterprise is a foreign-invested enterprise providing material handling services classified as auxiliary services for sea transport, the foreign investor is entitled contribute capital as prescribed by law, provided that the foreign investor’s holding does not exceed 50% of the enterprise’s charter capital.”

2. Article 6 is amended as follows:

“Article 6. Conditions for organizational structure and human resources

1. a) Regarding organizational structure, it is required to have a division specialized in the management of maritime security.

2. Regarding personnel, seaport security officers shall be trained and granted certificates in accordance with the regulations of the Minister of Transport in adherence to the International Ship and Port Facility Security Code (ISPS Code).”

3. Article 7 is amended as follows:

“Article 7. Conditions for facilities

1. Port-operating enterprises shall ensure adequate facilities, warehouses, storage yards and necessary equipment in accordance with national technical standards applicable to seaports. In the cases where a seaport does not have enough storage areas, the port-operating enterprise shall enter into a warehouse or storage yard lease contract, unless its operation involves only in floating terminals, anchorage, transshipment areas and/or offshore oil terminals.”

2. Port-operating enterprises occupational safety and hygiene and fire safety requirements as prescribed by law.”

4. Article 9 is amended as follows:

“Article 9. Environmental safety requirements

Means of collecting wastes discharged from ships when operating in seaports shall be adequate as prescribed in the International Convention for the Prevention of Pollution from Ships (MARPOL Convention) to which Vietnam is a signatory and other environmental safety requirements as prescribed by law.”

5. Article 8 of the Government’s Decree No. 37/2017/ND-CP dated April 04, 2017 is repealed.

Article 6. Amendments to some regulations of the Government’s Decree No. 111/2016/ND-CP dated July 01, 2016 on conditions for provision of ship construction, modification and repair.

1. Article 8 is amended as follows:

“Article 8. Occupational safety and hygiene, fire safety and environmental safety requirements

1. Satisfy occupational safety and hygiene, fire safety and environmental safety requirements as prescribed by law.

2. Ensure adequate quantity of means of collecting wastes discharged from ships when operating in seaports shall be adequate as prescribed in the International Convention for the Prevention of Pollution from Ships (MARPOL Convention) to which Vietnam is a signatory and other environmental safety requirements as prescribed by law.”

2. Article 9 is amended as follows:

“Article 9. Quality management system

1. Type 1 shipyards shall establish a quality management system according to ISO 9001 or equivalent, safety and environmental management system according to ISO 14001 or equivalent within 12 months from the date on which they are eligible to operate, and shall maintain such system during their operation.

2. Type 2 shipyards shall establish a quality management system including ship construction and modification process according to ISO 9001 or equivalent within 12 months from the date on which they are eligible to operate, and shall maintain such system during their operation.”

3. Article 13 is amended as follows:

“Article 13. Occupational safety and hygiene, fire safety and environmental safety requirements

1. Satisfy occupational safety and hygiene, fire safety and environmental safety requirements as prescribed by law.

2. Ensure adequate quantity of means of collecting wastes discharged from ships when operating in seaports shall be adequate as prescribed in the International Convention for the Prevention of Pollution from Ships (MARPOL Convention) to which Vietnam is a signatory and other environmental safety requirements as prescribed by law.”

4. Article 14 is amended as follows:

“Article 14. Quality management system

Ship repair facilities shall establish a quality management system including ship repair process according to ISO 9001 or equivalent within 12 months from the date on which they are eligible to operate, and shall maintain such system during their operation.”

5. Point c Clause 2 of Article 16 is amended as follows:

“c) Documents about environmental safety, occupational safety and fire safety shall be approved by a competent authority as prescribed by law.”

6. Article 7; Article 12 and Point c Clause 3 Article 16 of the Government’s Decree No. 111/2016/ND-CP dated July 01, 2016 are repealed.

Article 7. Effect

1. This Decree comes into force from the date on which it is signed.

2. Ministers, heads of ministerial agencies, heads of Governmental agencies and Presidents of People’s Committees of provinces and central-affiliated cities shall provide guidelines and implement this Decree./.