Chương II: Nghị định 26/2019/NĐ-CP hướng dẫn Luật Thủy sản Bảo vệ và phát triển nguồn lợi thủy sản

Chapter II

PROTECTION AND DEVELOPMENT OF AQUATIC RESOURCES

Section 1. CO-MANAGEMENT OF AQUATIC RESOURCE PROTECTION

Article 5. Recognizing and assigning management to communities

1. An application for recognition and assignment of management to a community includes:

a) An application form (Form No. 01.BT in the Appendix I hereof);

b) A plan for protection and catching of aquatic resources in area where co-management is expected to take place application form (Form No. 02.BT in the Appendix I hereof);

c) Charter of the community (Form No. 03.BT in the Appendix I hereof);

d) Information about the community (Form No. 04.BT in the Appendix I hereof);

dd) An original minutes of meeting of the community (Form No. 05.BT in the Appendix I hereof).

2. Procedures for recognizing and assigning management to a community:

a) The community representative shall submit an application specified in Clause 1 of this Article to the competent authority as prescribed in Clause 2 Article 10 of the Law on Fisheries;

b) Within 03 working days from the receipt of the satisfactory application, the competent authority shall publish the aquatic resource protection and catching plan on mass media and at the People’s Committee of the district, People’s Committee of the commune and residential area where the co-management is expected to take place;

c) Within 60 days from the date of publishing the plan, the competent authority shall appraise the application, carry out a site inspection (if necessary) and issue a decision to recognize and assign management to the community using the Form No. 06.BT in the Appendix I hereof. In case of rejection of the application, a response and explanation shall be provided in writing.

3. The appraisal of application for recognition and assignment of management to a community shall cover at least:

a) The satisfaction of conditions specified in Clause 1 Article 10 of the Law on Fisheries;

b) The conformity of the plan for protection and catching of aquatic resources in area where co-management is expected to take place and the community’s charter which has been approved by at least 2/3 of the number of community members with regulations of the law on fishers, relevant laws and local current condition.

4. An application for amendments to the decision on recognition and assignment of management to a community includes:

a) An application form (Form No. 07.BT in the Appendix I hereof);

b) Information about the community (Form No. 04.BT in the Appendix I hereof) in case of renaming of the community and change of the community representative);

c) A report on assessment of implementation result and draft plan for aquatic resource protection and catching in case of amendments to the aquatic resource protection and catching plan; change or addition of location, boundary of the assigned geographical area or scope of management;

d) A report on assessment of implementation result and draft charter in case of amendments to the charter of the community;

dd) An original minutes of meeting of the community about amendments (Form No. 05.BT in the Appendix I hereof).

5. Procedures for amendments to the decision on recognition and assignment of management to a community:

a) In case of renaming of the community, change of the community representative and charter, the community representative shall submit an application specified in Clause 4 of this Article to the competent authority as prescribed in Clause 2 Article 10 of the Law on Fisheries. Within 07 working days from the receipt of the satisfactory application, the competent authority shall consider issuing the amendment decision. In case of rejection of the application, a response and explanation shall be provided in writing;

b) In case of change or addition of the location, boundary of the assigned geographical area or scope of management or amendment to aquatic resource protection and catching plan, regulations laid down in Clauses 2, 3 and 4 of this Article shall be complied with;

c) The decision on amendments to the decision on recognition and assignment of management to a community is made using the Form No. 08.BT in the Appendix I hereof.

Article 6. Reporting of operation of a community

1. The community shall submit an annual or ad hoc report on its operation to the competent authority and the fishery authority of the province as prescribed in Clause 2 Article 10 of the Law on Fisheries by November 10.

2. A report shall contain at least: name of the community, number of members, result of implementation of the aquatic resource protection and catching plan, result of implementation of the charter, amendments made during the reporting period, proposals and recommendations (if any).

Section 2. MANAGEMENT OF ENDANGERED, PRECIOUS AND RARE AQUATIC SPECIES

Article 7. List of endangered, precious and rare aquatic species and criteria for determining whether an aquatic species is endangered, precious or rare

1. Endangered, precious and rare aquatic species are classified into 2 groups, including Group I and Group II.

2. An endangered, precious or rare aquatic species shall be classified into Group I if the following criteria are met:

a) The species carries rare and precious genes so that it is preserved and selected to serve aquaculture or contains substances or active ingredients with specific biological effects used as raw materials for preparation of medicinal products or is highly profitable when commercialized or plays a decisive role in maintaining the balance of other species in the biome or has representativeness or uniqueness of an geographic area.

b) There has been a very small number of species in nature or the species is in great danger of extinction if there is an observed or estimated population size reduction of at least 50% over the last 05 years by the time of assessment or a population size reduction of at least 50%, projected to be met within the next 05 years.

3. An endangered, precious or rare aquatic species shall be classified into Group II if the following criteria are met:

a) The species meets the criterion specified in Point a Clause 2 of this Article.

b) There has been a very small number of species in nature or the species is in great danger of extinction if there is an observed or estimated population size reduction of at least 20% over the last 05 years by the time of assessment or a population size reduction of at least 20%, projected to be met within the next 05 years.

4. The List of endangered, precious and rare aquatic species is provided in the Appendix II hereof.

5. The Ministry of Agriculture and Rural Development shall carry out review and assessment, and submit amendments to the List of endangered, precious and rare aquatic species to the Government.

Article 8. Management and protection of endangered, precious and rare aquatic species

1. Species classified into Group I shall be caught to serve one of the following purposes: conservation, scientific research, creation of original breeds and international cooperation.

2. Species classified into Group II shall be caught to serve one of the following purposes: conservation, scientific research, creation of original breeds and international cooperation or satisfy the conditions specified in Section II Appendix II hereof.

3. Organizations and individuals catching endangered, precious and rare aquatic species for the purpose of conservation, scientific research, creation of original breeds or international cooperation shall obtain a written approval from the Directorate of Fisheries and submit reports on implementation results to the Directorate of Fisheries.

4. On an annual basis, creators of original breeds and producers of breeds of endangered, precious and rare aquatic species shall cooperate with the fishery authority of the province to release at least 0.1% of total number of individuals produced into natural water areas.

5. Endangered, precious and rare aquatic species that is an exhibit or evidence confiscated in accordance with the Criminal Code or the Criminal Procedure Code shall be handled as follows:

a) The individual that remains alive shall be released into its natural habitat; if it is injured, it shall be transferred to the aquatic species rescue center so that it is nurtured and cured before being released into its natural habitat;

b) The exhibit that is a dead individual or part thereof shall be transferred to the Vietnam National Museum of Nature or research institute so that it can be used as a specimen and for display, research, dissemination or education or shall be destroyed in accordance with Vietnam’s law;

c) If it is confirmed that the exhibit is sick and likely to cause dangerous disease, it is required to destroy it immediately. The destruction shall comply with applicable regulations of laws on veterinary medicine, protection and quarantine of plants.

6. Procedures for rescuing endangered, precious or rare aquatic species that is injured or stranded:

a) Any organization and individual that find an endangered, precious or rare aquatic species injured or stranded shall notify the fishery authority of the province or the aquatic species rescue center;

b) If the fishery authority of the province receives information or receives species transferred by the organization/individual, it is required to notify the aquatic species rescue center so that it gives first aid and nurtures the species while waiting for the transfer;

c) The aquatic species rescue center shall receive endangered, precious and rare aquatic species transferred by the fishery authority of the province or the organization/individual catching the species. The record on transfer of endangered, precious and rare aquatic species is made using the Form No. 09.BT in the Appendix I hereof.

7. The aquatic species rescue center shall:

a) rescue, cure, nurture and assess the adaptability of the rescued aquatic species before releasing them into their natural habitat. If the rescued species is dead during the rescue and cure, the rescue center shall transfer it to the Vietnam National Museum of Nature or research institute so that it can be used as a specimen. If the rescued species is not able to live in its natural habitat, the rescue center shall nurture or transfer it to a competent organization or individual for the purpose of research, dissemination or education;

b) submit an annual or ad hoc report on rescue of endangered, precious and rare aquatic species to the Directorate of Fisheries by November 20.

8. If the dead endangered, precious or rare aquatic species is not kept, stored or produced for the purpose of research, dissemination or education, the fishery authority of the province shall cooperate with the local authority in handling it in accordance with practices and regulations of laws on veterinary medicine and environmental protection.

Article 9. Catching of endangered, precious and rare aquatic species

1. An application for approval for catching of endangered, precious and rare aquatic species includes:

a) An application form (Form No. 10.BT in the Appendix I hereof);

b) A catching plan (Form No. 11.BT in the Appendix I hereof);

c) An original or certified true copy of the national agreement on international cooperation in donation and exchange of endangered, precious and rare aquatic species if the species is caught for the purpose of international cooperation;

d) A decision on approval for outline for scientific research, conservation or creation of original breeds issued by the competent authority or description of the outline for scientific research, conservation or creation of original breeds if the species is caught for the purpose of scientific research, conservation or creation of original breeds;

dd) An applicant’s document defining its functions and tasks in the case of scientific research, conservation or creation of original breeds.

2. Procedures for granting written approval for catching of endangered, precious and rare aquatic species:

a) The applicant shall submit an application specified in Clause 1 of this Article to the Directorate of Fisheries;

b) Within 20 working days from the receipt of the satisfactory application, the Directorate of Fisheries shall appraise it, consult the MPA management unit if the species is caught within the MPA and grant the written approval using the Form No. 12.BT in the Appendix hereof. In case of rejection of the application, a response and explanation shall be provided in writing.

3. The written approval for catching of endangered, precious and rare aquatic species is effective until completion of the task in conservation, scientific research, creation of original breeds or international cooperation.

4. The Directorate of Fisheries shall revoke the written approval for catching of endangered, precious and rare aquatic species if the organization/individual fails to comply with the written approval or plan for catching of endangered, precious and rare aquatic species.

Section 3. REGULATIONS ON MPA MANAGEMENT

Article 10. Management of activities carried out within MPAs and ecotone

1. Activities allowed to be conducted within a subdivision under strict protection of a marine protected area include:

a) Floating of bouys for marking boundary of waters;

b) Investigation and scientific research with the competent authority’s approval and under the supervision of the MPA management unit;

c) Environmental dissemination and education, biodiversity conservation and aquatic resource protection.

2. Activities allowed to be conducted within an ecological recovery subdivision include:

a) The activities specified in Clause 1 of this Article;

b) Recovery and regeneration of aquatic animals and plants, and marine ecosystem.

c) Ecotourism, which must not harm aquatic resources and marine ecosystem;

d) Innocent passage of fishing vessels, vessels and other waterway vehicles.

3. Activities allowed to be conducted within a service and administration subdivision include:

a) The activities specified in Clause 2 of this Article;

b) Aquaculture and fishing activities;

c) Provision of ecosystem services and ecotourism;

d) Construction of infrastructure serving operations of the MPA management unit and buildings serving ecotourism and aquaculture.

4. Activities allowed to be conducted within an ecotone include:

a) The activities specified in Clause 3 of this Article;

b) Construction of infrastructure serving socio - economic development.

5. The abovementioned activities (specified in Clauses 1, 2, 3 and 4 of this Article) conducted within MPAs shall comply with relevant regulations of law and MPA management regulation.

Article 11. Rights and responsibilities of the MPA management unit

1. An MPA management unit has the right to:

a) carry out investigations, surveys, scientific researches and international cooperation in marine protection within its scope of management;

b) cooperate in environmental training, dissemination and education, biodiversity conservation and aquatic resource protection within an MPA;

c) collect charges and fees for activities conducted within an MPA;

d) cooperate with organizations and individuals in carrying out investigations and scientific researches, recovering and regenerating aquatic animals and plants, and marine ecosystem within an MPA;

dd) While performing their duties within an MPA, officials of the MPA management unit are entitled to make a record on administrative violations against regulations in fishery and transfer it to the person having the power to impose penalties as prescribed by law;

e) engage in trade and sign joint venture or association agreements in the fields of ecotourism, leisure, scientific research, recovery and regeneration of aquatic animals and plants, and marine ecosystems and other services within an MPA in accordance with regulations of law;

g) comment on the investigation, scientific research, education, training and project execution related to the MPA under its management; request the competent authority to suspend the investigation, scientific research, education, training and project execution by an organization or individual if such organization/individual fails to comply with the plan or conduct activities that have adverse impacts on the MPA.

2. An MPA management unit has the responsibility to:

a) manage and protect MPA according to the MPA management regulation and relevant regulations of law;

b) prepare an overall plan for ecotourism, leisure and entertainment development within the MPA and submit it to a competent authority for approval;

c) prepare and organize the implementation of the MPA management plan every year, every 05 years and every 10 years after obtaining the approval of the competent authority; take precautions against pollution and diseases; prevent violations against law within the MPA;

d) organize research, conservation, protection, regeneration, recovery and development of aquatic plants and animals, and marine ecosystem within the MPA; rescue endangered, precious and rare aquatic species in accordance with regulations of law; carry out monitoring, collect information and data, update database of biodiversity and water environment quality;

dd) supervise the investigation, scientific research, education, training and projects executed within the MPA;

e) Raise awareness of residential community within and around the MPA about aquatic resource protection and protection of habitat of aquatic species and biodiversity conservation.

g) cooperate with the fisheries resources surveillance force, Coast Guard, Environmental Police Agency, Border Guard and local authorities or request the People’s Committee of the province to mobilize the fisheries resources surveillance force to carry out petrol, inspection and supervision, and take actions against violations of law within the MPA;

h) cooperate with local authorities and relevant organizations and individuals in assisting in securing the livelihood of residential community within and around the MPA;

i) promulgate guidelines and regulations on vehicles and activities conducted within the MPA;

k) consider proposing adjustment to the area of the MPA; area and location of dedicated subdivisions of the MPA and ecotone;

l) install and float bouys to mark boundary of MPA, boundaries of dedicated subdivisions and install bouys on cruise ships at anchor;

m) submit an annual or ad hoc report on MPA management the Directorate of Fisheries affiliated to the Ministry of Agriculture and Rural Development by November 20.

Article 12. Rights and responsibilities of organizations and individuals whose operation involves MPAs

1. Participate in communication, education and improvement of awareness about biodiversity protection and conservation; recovery and regeneration of aquatic animals and plants, and marine ecosystem within an MPA.

2. Cooperate with the MPA management unit in investigation, scientific research, education and training; providing ecotourism services within the MPA in accordance with regulations of this Decree, regulations of the MPA management unit and relevant regulations of law.

3. Sign joint venture or association agreements with the MPA management unit in the fields of ecotourism, leisure, scientific research, recovery and regeneration of aquatic animals and plants, and marine ecosystems and other services within the MPA in accordance with regulations of law.

4. Engage in aquaculture and fishing in accordance with regulations of this Decree, regulations of the MPA management unit and relevant regulations of law.

Article 13. Obligations of organizations and individuals whose operation involves MPAs

1. Every organization or individual engaging in investigation, scientific research, education and training within an MPA has the following obligations:

a) Submit an investigation, scientific research, education and training plan to the MPA management unit 10 days before the investigation, scientific research, education and training;

b) Carry out investigation, scientific research, education and training in accordance with regulations of this Decree and MPA management regulation and under the guidance and supervision of the MPA management unit;

c) Notify the MPA management unit of results of investigation, scientific research, education and training; domestically or internationally published documents (if any);

d) Pay costs incurred in connection with services to the MPA management unit, except for those in connection with investigation and scientific research.

2. Every provider of ecotourism services related to an MPA has the following obligations:

b) Provide ecotourism, leisure and entertainment services according to the approved overall plan for ecotourism, leisure and entertainment development within the MPA;

b) Comply with MPA management regulation and regulations of this Decree, and be under the supervision of the MPA management unit;

c) Protect biodiversity and environment; participate in cleaning up the environment, recovering and regenerating aquatic animals and plants, and marine ecosystem within the MPA.

d) Disseminate regulations of law on environmental protection and biodiversity protection to tourists;

dd) Pay costs incurred in connection with services to the MPA management unit as prescribed.

3. Residential communities, households and individuals living within and around an MPA have the following obligations:

a) Comply with MPA management regulation, regulations of the MPA management unit and relevant regulations of law;

b) Protect the environment and biodiversity within the MPA;

c) Participate in recovery and regeneration of aquatic animals and plants, and marine ecosystem within the MPA.

Article 14. Funding of an MPA

Funding of an MPA is provided by:

1. state budget.

2. revenue received from services for which organizations and individuals whose operation involves the MPA pay as prescribed in Point d Clause 1 and Point dd Clause 2 Article 13 of this Decree.

3. donations of domestic and foreign organizations and individuals.

4. other funding sources prescribed by law.

Article 15. Management and use of funding of an MPA

1. Expenditures of state budget provided for a state-owned MPA include:

a) Expenditures on investment: expenditures on construction, upgrading and improvement of infrastructure; on procurement of equipment for MPA management; other investment expenditures (if any) related to the MPA in accordance with regulations. The management and allocation of expenditures on execution of projects serving MPA management shall comply with applicable regulations of law on public investment;

b) Recurrent expenditures: expenditures on activities of the MPA management unit; on other recurrent activities related to the MPA.

2. The making of estimate and management of use of state budget provided for an MPA shall comply with regulations of the law on state budget.

3. Revenue from services rendered at an MPA shall be managed and used in accordance with applicable regulations.

4. Donations of domestic and foreign organizations and individuals shall be managed and used in accordance with regulations of the law on use of donations and relevant regulations of law.

5. Other funding sources shall be managed and used in accordance with applicable regulations.

SECTION 4. AQUATIC RESOURCE PROTECTION AND DEVELOPMENT FUND

Article 16. Functions and tasks of the aquatic resource protection and development fund

1. The aquatic resource protection and development fund provides assistance for programs, projects and non-project activities in the field of aquatic resource conservation, protection, regeneration and development that are not specified in the budget plan nationwide.

2. The aquatic resource protection and development fund shall perform the following tasks:

a) Encourage, receive and manage funding provided by domestic and foreign voluntary contributors, sponsors, charities and trustees;

b) Organize the appraisal, decide to provide assistance, inspect, supervise and commission programs, projects and non-project activities supported by the fund;

c) Comply with regulations on finance, statistics, accounting and auditing specified in the Law on budget; submit reports on management and use of the funds to a competent authority;

d) Perform other tasks as assigned by the competent authority.

Article 17. Organizational structure of the aquatic resource protection and development fund

1. Name of the aquatic resource protection and development fund:

a) Central government fund, which is Vietnam aquatic resource protection and development fund (hereinafter referred to as “the central government fund”);

b) Provincial fund, which is “the aquatic resource protection and development fund of [specify name of the province or central-affiliated city]” (hereinafter referred to as “the provincial fund”).

2. Organizational structure of the fund:

a) Board of Trustees;

b) Internal Auditors;

c) Executive Office.

3. The Board of Trustees, Internal Auditors and Executive Office are specified in the fund’s Charter promulgated by the fund creator.

Article 18. Mechanism of the aquatic resource protection and development fund

1. The aquatic resource protection and development fund has a separate legal status, seal and accounts opened at banks and State Treasury in accordance with regulations of law; operate in the form of a public service provider established by a competent authority.

2. The central government fund has the responsibility to:

a) manage and use funding sources as prescribed in Article 19 of this Decree;

b) provide guidance, inspect and supervise the management and use of funding sources provided by the fund;

c) provide guidance and exchange experience in management and operation of the fund;

d) provide funding and technical assistance to the provincial fund and community fund through programs, projects and non-project activities (if any).

3. The provincial fund has the responsibility to:

a) manage and use funding sources as prescribed in Article 19 of this Decree;

b) provide funding and technical assistance to the community fund through programs, projects and non-project activities;

c) receive, manage and use funding sources and technical assistance provided by the central government fund (if any);

d) be subject to the central government fund’s inspection and supervision of funding sources provided by the central government fund;

dd) submit an annual or ad hoc report on management and use of funding to the central government fund, which will submit a consolidated report to the Ministry of Agriculture and Rural Development.

Article 19. Management and use of funding of the aquatic resource protection and development fund

1. The funding for formation of the aquatic resource protection and development fund is specified in Clause 4 Article 21 of the Law on Fisheries.

2. The central government fund provides funding for:

a) propagation and education; introduction of typical examples of aquatic resource protection and development nationwide;

b) recovery of ecosystem, regeneration of aquatic resources; career change and livelihood maintenance nationwide;

c) execution of programs and projects and performance of non-project activities entrusted by domestic and foreign organizations and individuals nationwide;

d) operations of the fund in accordance with applicable regulations;

dd) the provincial fund and community fund.

3. The provincial fund provides funding for:

a) The activities specified in Points a, b, c and d Clause 2 of this Article within the province;

b) the community fund.

4. The aquatic resource protection and fund shall provide assistance to domestic organizations, individuals, households and communities that execute programs and projects, and perform non-project activities specified in Clause 2 of this Article.

5. The aquatic resource protection and fund shall provide total or partial funding for execution of programs or projects or performance of non-project activities specified in Clause 2 of this Article.

6. A program, project or non-project activity shall be appraised and approved as follows:

a) The applicant shall submit an application for assistance, enclosed with a description of the program, project or non-project activity to the Executive Office;

b) The Executive Office shall take charge and cooperate with competent authorities in carrying out appraisal and request the Board of Trustees to consider granting approval;

c) After the Board of Trustees issues an approval decision, the Director of the fund shall notify the applicant.

7. The applicant shall execute the program or project or perform the non-project activity according to the approval decision and notify the Executive Office of results.

8. The execution of a program or project or performance of a non-project activity shall be inspected and assessed as follows:

a) The Executive Office shall direct and organize the annual or ad hoc inspection and assessment of execution of a program or project or performance of a non-project activity supported by the aquatic resource protection and development fund;

b) When necessary, the Executive Office may hire a consultancy to carry out inspection and assessment.

9. A revenue and expenditure plan and financial statement shall be prepared as follows:

a) The revenue and expenditure plan shall be approved by the Board of Trustees, and submitted to the Ministry of Agriculture and Rural Development if the plan is prepared by the central government fund and the People’s Committee of the province if the plan is prepared by the provincial fund;

b) The financial statement shall be prepared in accordance with applicable regulations.

10. Accounting, auditing, property management and financial disclosure regimes:

a) Apply public sector accounting regime to undertake accounting tasks;

b) Manage and use property in accordance with regulations of the laws on management and use of property and on management and use of public property;

b) Follow financial disclosure regime in accordance with regulations of law.