Chương II Nghị định 58/2017/NĐ-CP: Quản lý cảng biển và luồng hàng hải

Chapter II

MANAGEMENT OF SEAPORTS AND NAVIGATIONAL CHANNELS

Section 1. INVESTMENT IN AND CONSTRUCTION OF SEAPORTS AND NAVIGATIONAL CHANNELS

Article 4. Rules for investment in and construction and power to decide the guidelines for investment in seaports and navigational channels

1. Vietnamese and foreign organizations and individuals investing in and constructing seaports, terminals, wharves, floating terminals, anchorages, transshipment areas and navigational channels shall comply with regulations of this Decree and relevant regulations of law.

2. The investment in and construction of seaports, terminals, wharves, floating terminals, anchorages, transshipment areas and navigational channels shall conform to the planning for seaport system development and other relevant approved planning; in the event a seaport or navigational channel project contravene the approved planning for seaport system development, before executing such project, the investor must inform and be accepted by the authority that has the power to approve the planning.

3. The organizations and individuals investing in and constructing specialized seaports, terminals, wharves, floating terminals, anchorages, transshipment areas and navigational channels shall invest in and construct seaport infrastructures, specialized navigational channels berth pockets or water areas unless the nearby current public navigational channel, pilot boarding area, phytosanitary inspection area or turning basin satisfies requirements for operations of ships at such specialized port.

4. The decision on guidelines for investment in seaports, terminals, wharves and navigational channels that is financed by funds for public investment shall be made in accordance with the Law on Public Investment.

5. The decision on guidelines for investment in seaports, terminals, wharves and navigational channels that is regulated in Clause 4 of this Article shall be made in accordance with the Law on Investment. The projects whose investment guidelines are decided by the President of the provincial People’s Committee shall obtain the written consent of the Ministry of Transport.

Article 5. Management of investment in and construction of navigational channels

1. The investment in and construction of navigational channels shall conform to the approved planning for seaport system development and comply with relevant regulations of law.

2. The Ministry of Transport shall direct the Vietnam Maritime Administration to compile, announce and annually update the list of navigational channels; inspect and supervise the investment in and construction of navigational channels in according to the approved planning.

Article 6. Agreement on locations and detailed technical specifications of seaports, terminals, wharves and navigational channels

1. Before approving the investment project, the investor shall submit the applications for agreement on locations and detailed technical specifications of seaports, terminals, wharves and navigational channels, directly or by post to the Vietnam Maritime Administration. The application includes:

a) A written request for agreement on location and detailed technical specifications of a seaport, terminal, wharf and navigational channel according to the Form No. 01 provided in the Appendix enclosed herewith.

b) A copy of the written consent to guidelines for investment given by a competent authority according to Clause 4, Article 4 of this Decree;

c) A drawing of the structure that shows the coordinates of the location of main structure and other auxiliary structures, the distance from the structure boundary to the adjacent structures;

d) Legal documents about the land area for the project (specifying the coordinates of the boundary of the land area);

dd) Comments of a competent authority about fire prevention and fighting measures applied to structures that require a fire safety distance from adjacent structures.

2. Within 02 working days from the day on which a valid application submitted by the investor is received, the Vietnam Maritime Administration shall send enquiry forms to relevant authorities about the investor’s request. Within 05 working days from the day on which the enquiry form and relevant documents are received, the receiving authority shall send a response to the Vietnam Maritime Administration.

3. Within 03 working days from the day on which the responses are sent by relevant authorities about the investor’s request is received, the Vietnam Maritime Administration shall send a written agreement on location and detailed technical specifications, directly or by post, to the investor. In case of rejection, a written response specifying reasons thereof shall be given.

4. Before constructing a seaport, terminal, wharf or navigational channel, the investor shall submit a copy of the investment and construction decision, enclosed with the overall contour map of the site and a copy of the decision on approval for design to the Vietnam Maritime Administration to serve the management.

Article 7. Supervision of construction of other structures within seaport waters

1. The construction of other structures within seaport waters that are not regulated in Article 4 of this Decree shall comply with regulations of this Decree on assurance about maritime safety and security and prevention of environmental pollution, and other relevant regulations of law.

2. Before the start of construction, the investor shall submit a copy of the investment decision and the overall contour map of the site of the structure to the local port authority responsible for the area where the structure is constructed, which will supervise the construction by the investor to ensure maritime safety. This Clause does not apply to the structure that is subject to the plan for maritime safety assurance prescribed in Article 8 of this Decree.

3. The investor in the construction of ports and inland landing stages within seaport waters shall follow procedures prescribed in Article 19 of this Decree.

4. For the project on construction of the structures that intersect seaport waters and navigational channels or that affect maritime operations, such as: bridges, power lines, cable cars, underground structures and other similar structures, upon his/her proposal for project, the investor shall submit an enquiry form to the Vietnam Maritime Administration about the necessity, expected location and scale, vertical clearance and depth of the structure.

Within 05 working days from the day on which the enquiry form and copy of overall contour map of the site are received, the Vietnam Maritime Administration shall give a written response specifying the requirements that need to be complied with to ensure maritime safety and security, and prevent environmental pollution, to the investor. In case of rejection, a written response specifying reasons thereof shall be given.

5. The investor in construction of other structures that are not regulated in Clause 3 and Clause 4 of this Article, upon his/her proposal for investment and construction, shall send an enquiry form for the expected location and scale of the structure to a local port authority. Within 05 working days from the day on which a valid application is received, the local port authority shall give a written response specifying the requirements that need to be complied with to ensure maritime safety and security, and prevent environmental pollution to the investor. In case of rejection, a written response specifying reasons thereof shall be given.

6. The local port authority shall inspect and supervise: conditions for start of the construction of structure in accordance with regulations of law; construction location and scale, watercrafts, equipment, construction measures, construction progress, construction supervision by the investor, measures for maritime safety assurance and other necessary contents throughout the investment in and construction of ports, inland landing stages within seaport waters, compliance with the approved planning and project, assurance about maritime safety and security and prevention of environmental pollution. The inspection and supervision shall only end when the investor completes the construction and clear the obstacles (if any).

Article 8. Plan for maritime safety assurance

1. Before constructing a seaport, terminal, wharf, floating terminal, berth pocket or water area, the investor shall request a competent authority to consider approving the plan for maritime safety assurance and shall organize the implementation of the approved plan.

2. The cases in which a plan for maritime safety assurance must be prepared:

a) Construction of seaports, terminals, wharves, floating terminals, navigational channels, aids to navigation, berth pockets and water areas;

b) Construction of the structures that intersect seaport waters and navigational channels or that affect maritime operations, such as: bridges, power lines, cable cars, underground structures, and other similar structures, drilling rig, wind power, hydropower, thermal power and other similar structures;

c) The structures that are constructed within Vietnamese territorial waters and affect maritime operations.

3. The port authority shall approve the plan for maritime safety assurance. For the structures specified in Point b, Clause 2 of this Article, the port authority shall obtain the consent of the Vietnam Maritime Administration before giving approval. Within 04 working days from the day on which the plan for maritime safety assurance submitted by the port authority is received, the Vietnam Maritime Administration shall submit a written consent to the plan for maritime safety assurance to the port authority. In case of rejection, a written response specifying reasons thereof shall be given.

4. Contents of the plan for maritime safety assurance include:

a) General information about the project: Name of the project; name and address of the investor; construction location and scale;

b) Duration of the construction;

c) Approved construction measures;

d) Plan for maritime safety assurance;

dd) Plan for organization and cooperation in implementation.

5. Procedures for approving the plan for maritime safety assurance: The investor shall submit 01 application, directly or in other appropriate forms, to the local port authority. An application for approval for the plan for maritime safety assurance includes:

a) A written request for approval for the plan for maritime safety assurance according to the Form No. 02. provided in the Appendix enclosed herewith;

b) A copy of the investment and construction decision;

c) A copy of overall contour map of the site of the structure;

d) The original of the plan for maritime safety assurance.

6. Procedures for receipt and processing of the application:

The local port authority shall receive application. If the application is invalid, within 03 working days from the day on which such application is received, the local port authority shall provide guidance on the completion of the application as prescribed in this Decree. If the application is valid, within 07 working days from the day on which such application is received, the local port authority shall submit a written approval for the plan for maritime safety assurance, directly or by post, to the investor.

7. The Decision on approval for the plan for maritime safety assurance about the port authority shall specify: general information about the structure and project; duration of transfer of land; duration of the construction; construction measures; plan for maritime safety assurance; installation and adjustment of the aids to navigation; plan for organization, cooperation in implementation, inspection and supervision, and other necessary contents.

8. Before approving the plan for maritime safety assurance, the local port authority shall send enquiry forms to the maritime safety enterprises, pilotage service providers and other relevant authorities and units; the maritime safety enterprise shall implement the approved plan for maritime safety assurance according to regulations of the investor.

9. The Vietnam Maritime Administration and the port authorities shall inspect the implementation of the approved plan for maritime safety assurance.

Section 2. REGULATIONS ON NAMING AND RENAMING OF SEAPORTS, OFFSHORE OIL PORTS, PORTS, WHARVES, FLOATING TERMINALS, BERTH POCKETS AND WATER AREAS

Article 9. Rules for naming and renaming of seaports, offshore oil ports, ports, wharves, floating terminals, berth pockets and water areas

1. Seaports, offshore oil ports, ports, wharves, floating terminals, berth pockets and water areas shall be named according to the rules prescribed in Article 77 of the Vietnam Maritime Code.

2. The name of a seaport and offshore oil port must be in Vietnamese and may be followed by an English name, starting with the word “Cảng biển” (“Seaport”) or phrase “Cảng dầu khí ngoài khơi” (“Offshore oil port”)  then the proper name after the name of the place where the seaport or offshore oil port is located.

3. The name of a port, wharf, berth pocket or water area must be in Vietnamese and may be followed by an English name, starting with the word or phrase “Bến cảng" (Port), “Cầu cảng” (Wharf), “Khu” (”Pocket”), “Vùng” (“Area”) then the proper name of the structure.

Article 10. Naming and renaming of seaports, offshore oil ports, ports, wharves, floating terminals, berth pockets and water areas

1. A seaport, offshore oil port, port, wharf, floating terminal, berth pocket or water area shall be named when a competent authority announces the opening of a seaport, offshore oil port, port, wharf, floating terminal, berth pocket or water area at the request of the investor or relevant organizations.

2. The power to decide to rename a seaport, offshore oil port, port, wharf, floating terminal, berth pocket or water area:

a) The Minister of Transport shall decide to rename a seaport or offshore oil port;

b) The Vietnam Maritime Administration shall decide to rename a port, wharf, floating terminal, berth pocket or water area.

3. Procedures for renaming the announced seaport, offshore oil port, port, wharf, floating terminal, berth pocket or water area:

a) The investor or operator shall submit a written request for renaming of the seaport according to the Form No. 03 provided in the Appendix enclosed herewith, directly or in other appropriate forms, to the Vietnam Maritime Administration.

b) Within 02 working days from the day on which a satisfactory application prescribed in Point a of this Clause is received, the Vietnam Maritime Administration shall submit a written request to the Ministry of Transport for permission to rename the seaport or offshore oil port and renaming of the port, wharf, floating terminal, berth pocket or water area. Within 02 working days from the day on which the written request submitted by the Vietnam Maritime Administration is received, the Ministry of Transport shall consider and issue the decision on renaming of the seaport or offshore oil port. In case of rejection, the Ministry of Transport shall inform the Vietnam Maritime Administration thereof. The Vietnam Maritime Administration shall submit a written notice to the investor or operator of the seaport.

Section 3. ANNOUNCEMENT OF THE OPENING OR CLOSURE OF A SEAPORT, OFFSHORE OIL PORT, PORT, WHARF, FLOATING TERMINAL, BERTH POCKET OR WATER AREA

Article 11. Conditions for announcement of the opening or closure of a seaport, offshore oil port, port, wharf, floating terminal, berth pocket or water area

1. The seaport, offshore oil port, port, wharf, floating terminal, berth pocket or water area has been commissioned before its first use according to regulations.

2. The investor has all documents prescribed in Articles 13 and 14 of this Decree.

Article 12. Power to announce the opening or closure of a seaport, offshore oil port, port, wharf, floating terminal, berth pocket or water area

1. The Minister of Transport shall decide to announce the opening or closure of a seaport or offshore oil port.

2. The Director General of the Vietnam Maritime Administration shall decide to announce the opening or closure of a port, wharf, floating terminal, berth pocket or water area.

Article 13. Procedures for announcing the opening of a seaport or offshore oil port and announcing the first use of a navigational channel

1. The investor shall submit 01 application, directly or in other appropriate forms, to the Vietnam Maritime Administration. The application includes:

a) A written request for announcement of the opening of a seaport or offshore oil port according to the Form No. 04 provided in the Appendix enclosed herewith;

b) The record on the commissioning of the completed seaport, offshore oil port or navigational channel (in the event the navigational channel is opened at the same time as the opening of the seaport), enclosed with the written consent to the commissioning results, as-built drawing of the land, vertical and horizontal sections of the seaport (not mandatory for offshore oil ports).

c) The commissioning record signed by the investor and competent organizations on the results of survey of obstacles on the bottom of the area of water facing against the wharf or navigational channel, except for the offshore oil port;

d) A notice to mariners about the navigational and area of water facing against the wharf, enclosed with a contour map; or a notice to mariners about safety area of the offshore oil port, for the offshore oil port;

dd) The decision on approval for plan for offshore oil spill.

2. The Vietnam Maritime Administration shall receive the application. If the application is invalid, the Vietnam Maritime Administration shall instruct the investor to complete the application as prescribed in this Decree. If the application is valid, within 07 working days from the day on which such application is received, the Vietnam Maritime Administration shall send an enquiry to the People’s Committee of the province where the seaport or offshore oil port is located in writing and submit a written request for decision on the announcement of the seaport or offshore oil port, enclosed with the application prescribed in Clause 1 of this Article to the Ministry of Transport.

3. Within 03 working days from the day on which the written request submitted by the Vietnam Maritime Administration is received, the Ministry of Transport shall issue the decision on announcement of the opening of a seaport or offshore oil port, made using the Form No. 05 provided in the Appendix enclosed herewith and submit the decision by post to the investor or the investor shall receive it directly at the Ministry of Transport.

4. The first use of a navigational channel shall be announced as follows:

a) In the event the navigational channel is opened at the same time as the opening of the seaport, the Ministry of Transport shall make such announcement;

b) In the event the navigational channel is opened after the seaport is opened or the navigational channel is reinvested and reopened due to adjustment, expansion or upgradation, the Vietnam Maritime Administration shall make the announcement.

5. Procedures for request for announcement of the first use of a navigational channel: After the re-investment, adjustment, expansion or upgrade of the navigational channel is completed, the investor or project management organization shall submit 01 application, directly or in other appropriate forms, to the Vietnam Maritime Administration. The application includes:

a) A written request for approval for announcement of the first use of a navigational channel, made using the Form No. 04 provided in the Appendix enclosed herewith;

b) The record on the commissioning of the completely constructed structure before its first use, enclosed with the as-built drawing of the navigational channel and aids to navigation system that are invested according to the project;

c) Procedures for operation of a navigational channel, including: channel standards, aids to navigation system, design specifications of the ship and other specific conditions for operations;

d) Notice to mariners about the technical specifications of the navigational channel, enclosed with the contour map of the navigational channel; notice to mariners about the aids to navigation system that is invested according to the project; commissioning record signed by the investor and competent organization on the results of survey of obstacles on the bottom of the navigational channel and associated waters.

Within 03 working days from the day on which the application prescribed in this Point is received, the Vietnam Maritime Administration shall announce the first use of the navigational channel as prescribed. In case of rejection, a written response specifying reasons thereof shall be given.

Article 14. Procedures for the opening of a port, wharf, floating terminal, berth pocket or water area

1. After the construction of a port, wharf, floating terminal, berth pocket or water area is completed, the investor shall submit 01 application for announcement of the opening of a port, wharf, floating terminal, berth pocket or water area, directly or in other appropriate forms, to the Vietnam Maritime Administration.

2. The investor shall select an organization licensed to survey and find obstacles, and clear the obstacles (if any) within the area of water facing against the floating terminal and the area of water facing against the port, wharf, navigational channel, berth pocket or water area in accordance with regulations.

After the survey, scanning and clearance of the obstacles, parties shall commission and make a record on commissioning of survey results, scanning and clearance of the obstacles within the area of water facing against the floating terminal and the area of water facing against the port, wharf, navigational channel, berth pocket or water area.

3. An application for announcement of the opening of a port, wharf, berth pocket or water area includes:

a) A written request for the announcement, made using Form No. 06 provided in the Appendix enclosed herewith;

b) The record on the commissioning of the completely constructed structure before its first use, enclosed with the written consent to the commissioning results, as-built drawing of land, vertical view and cross-section view of the port, wharf, berth pocket or water area;

c) The notice to mariners, enclosed with the contour map of the navigational channel through which ships arrive at or depart from a port, wharf, berth pocket or water area; commissioning record signed by the investor and competent organization on the results of survey of obstacles on the bottom of the area of water facing against the port, wharf, berth pocket or water area;

d) The decision on approval for the environmental impact assessment report of the project;

dd) Commissioning record on fire prevention and fighting;

e) A copy of the certificate of port security according to regulations.

4. Procedures for receipt and processing of applications: The Vietnam Maritime Administration shall receive the application. If the application is invalid, within 03 working days from the day on which such application is received, the Vietnam Maritime Administration shall provide guidance on the completion of the application as prescribed in this Decree. If the application is valid, within 03 working days from the day on which such application is received, the Vietnam Maritime Administration shall issue the decision on announcement of the opening of a port, wharf, floating terminal, berth pocket or water area, made using the Form No. 07 provided in the Appendix enclosed herewith and submit the decision by post to the investor or the investor shall receive it directly at the Vietnam Maritime Administration.

5. For the seaport that has only one terminal or wharf, after completing the procedures for announcement of opening of a seaport, the investor shall follow the procedures for announcement of opening of the port or wharf as prescribed in this Article before putting it into operation.

6. The documents prescribed in Points d, dd and e, Clause 3 of this Article are not mandatory when announcing the opening of a berth pocket, water area, structure that only serves pilot boarding, quarantine areas, storm shelter or anchorage area used to anchor ships waiting to enter a port, terminal or wharf or anchor public service ships without transshipping or loading cargoes or providing other transport services.

Article 15. Announcement of the first use of other structures

1. After the construction of other structures within seaport waters that are not regulated in Article 4 of this Decree is completed, the investor shall submit the following documents, directly or in other appropriate forms, to a port authority and maritime safety enterprise in the area where the structure is constructed to announce the first use of the structure:

a) A written notice about the first use of the structure, made using the Form No. 08 provided in the Appendix enclosed herewith;

b) A record on commissioning or transfer of the structure or a copy of the decision or permit issued by a competent authority on the first use of the structure.

2. The investor shall publish information about the first use of the structure specified in Clause 1 of this Article on three consecutive issues of a central or local daily newspapers or broadcast it on central or local Radio or Television Stations 03 times in 03 consecutive days.

Article 16. Announcement of the closure of a seaport or offshore oil port

1. The closure of a seaport or offshore oil port shall be considered in the following cases:

a) The seaport or offshore oil port is closed for reasons of national defense and security assurance or other special reasons;

b) The seaport or offshore oil port is no longer eligible to operate as prescribed;

c) Epidemics and natural disasters occur and other cases according to regulations of law.

2. Procedures for announcing the closure of a seaport or offshore oil port:

a) Procedures for announcing the closure of a seaport under Point a, Clause 1 of this Article: In case of emergency, the Ministry of Transport shall issue a decision on closure of a seaport, which is made using the Form No. 09 provided in the Appendix enclosed herewith and report it to the Prime Minister. For other cases, within 05 working days from the day on which a written request for closure of a seaport, the Ministry of Transport shall collect comments from relevant authorities about the closure of the seaport and issue an announcement on the closure, which is made using the Form No. 09 provided in the Appendix enclosed herewith. In case of rejection, explanation shall be provided.

b) Procedures for announcing the closure of a seaport under Points b and c, Clause 1 of this Article: The applicant shall submit an application for permission for closure of a seaport according to the Form No. 10 provided in the Appendix enclosed herewith, directly or in other appropriate forms, to the Ministry of Transport.

The Ministry of Transport shall receive the application. If the application is satisfactory, within 01 working day from the day on which such request is received, the Ministry of Transport shall provide guidance on the completion of the request as prescribed in this Decree. If the application is satisfactory, within 05 working days from the day on which the application is received, the Ministry of Transport shall collect comments from relevant authorities about the closure of the seaport and issue an announcement on the closure, which is made using the Form No. 09 provided in the Appendix enclosed with this Decree, and shall submit the decision by post to the applicant or the applicant shall receive it directly at the Ministry of Transport. In case of rejection, a written response specifying reasons thereof shall be given.

Article 17. Announcement of the closure of a port, wharf, floating terminal, berth pocket or water area

1. The closure of a port, wharf, floating terminal, berth pocket or water area shall be considered in the following cases:

a) The port, wharf, floating terminal, berth pocket or water area no longer exits or is ineligible to operate or its closure is requested by the investor or local port authority;

b) The port, wharf, floating terminal, berth pocket or water area operates ineffectively or its closure is requested by the investor;

c) The seaport or offshore oil port is closed for reasons of defense and security assurance or other special reasons;

2. Procedures for announcing the closure of a port, wharf, floating terminal, berth pocket or water area:

a) The investor or the local port authority shall submit an application form that is made using the Form No. 10 provided in the Appendix enclosed herewith, directly or in other appropriate forms, to the Vietnam Maritime Administration;

b) The Vietnam Maritime Administration shall receive the application form. If the application form is unsatisfactory, within 01 working day from the day on which such form is received, the Vietnam Maritime Administration shall provide guidance on the completion of the form as prescribed in this Decree. If the application form is satisfactory, within 05 working days from the day on which such form is received, the Vietnam Maritime Administration shall send enquiry forms to relevant authorities (if any) and issue the decision on announcement of the closure of a port, wharf, floating terminal, berth pocket or water area according to the Form No. 11 provided in the Appendix enclosed herewith and send the decision by post to the applicant or the applicant shall receive it directly at the Vietnam Maritime Administration.

Article 18. Announcement of seaport waters, maritime areas and areas under the management of port authorities

1. The Vietnam Maritime Administration shall submit an application to the Ministry of Transport for consideration and announcement of seaport waters, maritime areas and areas under the management of a port authority, including:

a) A written request for announcement of seaport waters;

b) Written comments of the People's Committees of the provinces concerned;

c) The nautical chart showing the boundaries of the seaport waters and areas under the management of the port authority.

2. According to the application specified in Clause 1 of this Article, the Ministry of Transport shall consider announcing the seaport waters and areas under the management of port authorities.

Article 19. Operations of ports, inland landing stages and fishing ports within seaport waters

1. Competent authorities shall manage the investment in and construction of ports, inland landing stages and fishing ports within seaport waters in accordance with relevant regulations of law; before responding to the investor with the permission for investment in and construction of ports, inland landing stages and fishing ports within seaport waters, they shall send enquiry forms to local port authorities.

2. After the construction of ports, inland landing stages and fishing ports within seaport waters is completed, the investor shall submit relevant documents to a competent authority to request announcement of the first use of the structures as prescribed and shall follow procedures for issuing the announcement of the first use of the structures as prescribed in Article 15 of this Decree.

3. Port authorities are responsible for state management of ports, inland landing stages and fishing ports within seaport waters in terms of maritime safety and security and environmental safety.

4. Competent authorities shall organize state management of operations of ports and inland landing stages within seaport waters in accordance with regulations of the Law on Inland Waterway Transport; and organize state management of operations of fishing ports within seaport waters in accordance with regulations of law on fisheries.

5. Before a ship arrives or departs from a port or inland landing stage within seaport waters, the master or the declarant shall report such to the local port authority and authority performing state management of ports, inland landing stages and fishing ports in order to prepare a plan and provide guidelines for regulations on maritime safety and security assurance and environmental safety.

Article 20. Classification of seaports and announcement of the list of seaports and ports of Vietnam

1. Once every 05 years, in the first quarter, the Vietnam Maritime Administration shall prepare and submit the list of seaports of Vietnam to the Ministry of Transport, which will submit it to the Prime Minister for consideration and announcement in accordance with regulations. The application includes:

a) The written request for announcement of the list of seaports;

b) The draft list of seaports;

c) A copy of the decision on announcement of a seaport or offshore oil port.

2. Every March, the Vietnam Maritime Administration shall prepare and submit the list of ports of Vietnam to the Ministry of Transport. The application includes:

a) The application form for announcement of the list of ports of Vietnam;

b) The draft list of ports of Vietnam;

c) A copy of the decision on announcement of a port.

3. The Vietnam Maritime Administration shall announce the list of seaports of Vietnam and navigational channels and the list of announced ports of Vietnam.

4. The funding for compilation of the list of seaports, terminals and navigational channels shall be obtained from the state budget and other legal funding sources.

Article 21. Seaport regulations

1. Seaport regulations include regulations on ships, maritime structures, maritime safety and security, environmental safety and other operations related to maritime operations carried out at seaports and within areas under the management of the port authorities.

2. Seaport regulations shall be made as prescribed in this Decree, other relevant regulations of law and actual maritime operations carried out at seaports and within areas under the management of port authorities.

3. The Vietnam Maritime Administration shall approve the seaport regulations at the request of the Director of the port authority and comments from relevant organizations.

4. The Director of the port authority shall issue, publish and provide guidelines for and inspect the implementation of seaport regulations as prescribed.

5. Vietnamese and foreign organizations, individuals and ships shall comply with seaport regulations while operating within seaport waters and areas under the management of port authorities.

Section 4. MANAGEMENT AND OPERATION OF SEAPORTS, NAVIGATIONAL CHANNELS AND OTHER STRUCTURES WITHIN VIETNAMESE TERRITORIAL WATERS

Article 22. Rules for management and operation of seaports

1. A seaport shall be managed and operated as prescribed in law to ensure investment efficiency and avoid any possible loss and wastefulness.

2. Seaport infrastructures shall undergo quality survey on a periodic basis in accordance with regulations.

3. Surveys on areas of water facing against wharves, berth pockets and water areas shall be periodically made and included in the notices to mariners as prescribed.

4. The investor in the construction of a seaport, terminal and wharf shall decide the method of management and operation according to the following rules:

a) A seaport infrastructure project financed by the state budget shall be partially or entirely leased out in accordance with laws; the revenues generated from such leasing belong to the state budget, and are utilized as prescribed in the law on state budget and prioritized for seaport infrastructure development;

b) The method of management and operation of the seaport infrastructure that is financed by other capital sources not regulated in Point a of this Clause shall be decided by the investor in accordance with regulations of law.

Article 23. Rules for management and operation of navigational channels

1. The Ministry of Transport shall direct the Vietnam Maritime Administration to organize state management of the planning for development, investment in and construction of navigational channels nationwide, and announce the first use of, manage and operate these channels nationwide.

2. Maritime safety enterprises shall directly manage and operate the public navigational channels assigned to them.

3. Enterprises shall invest in, construct, manage and operate specialized navigational channels. In the event a specialized navigational channel is converted into a public one, part of investment capital shall be refunded to enterprises in accordance with regulations of the Ministry of Finance.

4. Every navigational channel operator shall conduct periodic survey in order to issue notices to mariners as prescribed.

5. Management and operation of navigational channels and aids to navigation systems include:

a) Maintenance, upgrade and repair of navigational channels, aids to navigation, and structures and auxiliary equipment for assurance about the safety of maritime operations;

b) Operation of navigational channel systems and aids to navigation systems;

c) Periodic surveys of depth and issuance of notices to mariners according to regulations;

d) Dredging and maintenance of navigational channels for assurance about their depth in accordance with design standards.

6. The organization charged with management and operation of navigational channel routes shall submit an annual report on condition of channel routes and plan for management, operation, maintenance, upgrade, repair, survey and issuance of notices to mariners according to regulations to the Vietnam Maritime Administration, which will submit the maintenance plan to the Ministry of Transport for approval.

7. When detecting deviations from disposition of aids to navigation or damage or loss of aids to navigation, including their suspension or replacement, the operating organization shall immediately inform the local port authority. In case of change of positions, specifications or purposes, enquiry forms shall be sent to the local port authority and submitted to the Vietnam Maritime Administration for approval.

Article 24. Public maritime safety assurance services

1. Public maritime safety assurance services include:

a) Operate and maintain aids to navigation, public navigational channels and maritime routes;

b) Survey, establish, publish and update nautical charts of seaport waters, navigational channels and maritime routes;

c) Issue notices to mariners;

d) Dredge and maintain public navigational channels to ensure their depth meets design standards;

dd) Provide electronic maritime information;

e) Repair, improve and upgrade structures and assets to ensure maritime safety;

g) Undertake unexpected missions to ensure maritime safety.

2. The Ministry of Transport shall implement the procurement procedures and assign maritime safety enterprises to provide maritime safety assurance services and products as prescribed.

Article 25. Investment in and construction of temporary seaport infrastructures

Temporary seaport infrastructures shall be established to serve the construction of structures and project or satisfy the needs for socio-economic development in the area for a certain period of time.

1. Conditions for establishment of a temporary seaport infrastructure:

a) The current seaport infrastructure fails to satisfy essential needs in the area;

b) The construction of structures or projects must be served;

c) The needs for socio-economic development must be satisfied for a certain period of time.

2. Operations of a temporary seaport infrastructure shall be suspended within 03 years when the construction and project is completed or the seaport infrastructure in the area has satisfied the need. For the temporary seaport infrastructure that is a floating terminal or transshipment area in service of local socio-economic development, operation is allowed within a period in conformity with the planning for seaport development.

3. Procedures for reaching an agreement on construction of a temporary seaport infrastructure:

a) The investor shall submit a written request for agreement on construction of a temporary seaport infrastructure, directly or in other appropriate forms, to the Vietnam Maritime Administration.

b) Within 02 working days from the day on which the request is received, the Vietnam Maritime Administration shall send enquiry forms to the local port authority and relevant authorities. Within 03 days from the day on which the written comments are received, the Vietnam Maritime Administration shall request the Ministry of Transport to consider granting a written consent if all conditions are satisfied. Within 03 working days from the day on which the written consent granted by the Vietnam Maritime Administration is received, the Ministry of Transport shall send a written response to the Vietnam Maritime Administration. Within 03 working days after the written response given by the Ministry of Transport is received, the Vietnam Maritime Administration shall send a written response specifying whether the construction of the temporary seaport infrastructure is approved, directly or by post, to the investor.

For the temporary seaport infrastructure that is a floating terminal or transshipment area in service of local socio-economic development in the area, within 03 working days from the day on which the written response sent by the Vietnam Maritime Administration is received, the Ministry of Transport shall, if necessary, send a written notice to the People’s Committee of the province where the floating terminal or transshipment area is established. Within 03 working days from the day on which the written notice sent by the People’s Committee of the province is received, the Ministry of Transport shall give a written response to the Vietnam Maritime Administration. Within 03 working days after the written response given by the Ministry of Transport is received, the Vietnam Maritime Administration shall send a written response specifying whether the construction of the temporary seaport infrastructure is approved, directly or by post, to the investor.

4. In the event the temporary seaport infrastructure operates beyond the duration prescribed in Clause 2 of this Article, the investor shall submit a written request for extension enclosed with comments from the local port authority. Within 02 working days from the day on which the written request is received, the Vietnam Maritime Administration shall grant a written consent to the extension to the Ministry of Transport if all conditions are satisfied. Within 03 working days from the day on which the written consent granted by the Vietnam Maritime Administration is received, the Ministry of Transport shall give a written response to the Vietnam Maritime Administration. Within 03 working days after the written response given by the Ministry of Transport is received, the Vietnam Maritime Administration shall a written response specifying whether the construction of the temporary seaport infrastructure is approved, directly or by post, to the investor.

5. Procedures for applying for establishment of a temporary seaport infrastructure:

a) After reaching an agreement on construction of a temporary seaport infrastructure, the investor shall submit a written request for establishment of the temporary seaport infrastructure, made using the Form No. 12 provided in the Appendix enclosed herewith and documents about investment in and operation of seaport infrastructures, directly or in other appropriate forms, to the Vietnam Maritime Administration.

b) Within 03 working days after the written request is received, the Vietnam Maritime Administration shall grant a written consent to the establishment of the temporary seaport infrastructure. In case of rejection, a written response specifying reasons thereof shall be given to the investor by post or the investor shall receive it directly at the Vietnam Maritime Administration.

6. Before constructing a temporary seaport infrastructure, the investor shall submit a copy of the investment and construction decision, enclosed with the overall contour map of the site, a copy of the decision on approval for design and plan for maritime safety assurance to the Vietnam Maritime Administration to serve the management.

7. The temporary seaport infrastructure shall be put into operation as prescribed in Article 14 of this Decree.

Article 26. Charges and fees for the management, operation and use of seaports and navigational channels invested in by enterprises

1. Charges and fees for the management, operation and use of seaports and navigational channels shall comply with regulations of law on fees and charges.

2. The Ministry of Finance shall, after reaching an agreement with the Ministry of Transport, specify the specific fee rates for assurance about maritime safety of the navigational channel invested in and operated by enterprises for the purposes of assuring maritime safety and security and preventing environmental pollution.

Article 27. Operations of the structures within Vietnamese territorial waters

1. The survey, exploration, investment in and construction, and establishment of the structures within Vietnamese territorial waters shall comply with regulations of Vietnam’s laws and treaties to which the Socialist Republic of Vietnam is a signatory but must not affect the operational safety of structures on maritime routes and traffic separation within Vietnamese territorial waters.

2. The structures that are installed and constructed within Vietnamese territorial waters must have a safety radius of at least 500 m from the furthermost outer edge of the structure. Within 2 nautical miles measured from the furthermost outer edge of the structure, unauthorized ships must not anchor.

3. The floating production storage and offloading unit that operates within Vietnamese territorial waters for the first time and functions as an offshore oil port within 15 years from the day on which its keel is laid.

4. When the service life of a structure within Vietnamese territorial waters expires, it must be dismantled. The investor whose equipment and structures at sea have not been dismantled for technical reasons or due to force majeure events shall inform the local port authority of their locations, sizes, shapes and depth, and install marine signs and aids to navigation according to regulations.

5. The investor shall take measures to protect his/her structures and inform such measures to the local port authority.

Section 5. MANAGEMENT AND OPERATION OF STATE-FUNDED PORT AND WHARF INFRASTRUCTURE

Article 28. Rules for management and operation, and power to decide the leasing of port and wharf infrastructures

The authority that makes a decision to invest in and construct port and wharf infrastructures has the power to approve the plan for leasing out such infrastructures and the lessee selection result.

Article 29. Plan for leasing out port and wharf infrastructures

1. The lessor shall prepare a plan for leasing out port and wharf infrastructures. Main contents of the plan include:

a) Name of the lessor;

b) List and specifications of leased assets;

c) Value of leased assets;

d) Lease term;

dd) Rent decided by a competent authority;

e) Lease conditions;

g) Capacity to recover investment capital;

h) Rights, obligations and responsibilities of the lessee and lessor;

i) Method of lessee selection;

k) Form of contract;

l) Time for selecting lessees.

2. For the port and wharf infrastructures that are under construction, the lessor shall prepare a leasing plan before putting such infrastructures into operation.

Article 30. Rent for port and wharf infrastructures

1. The rent for port and wharf infrastructures shall comply with regulations of the Law on Prices. The Ministry of Finance shall decide the rent for port and wharf infrastructures at the proposal of the investors or authorities approving plans for leasing out port and wharf infrastructures.

2. The rent for port and wharf infrastructures shall be approved by the authority that has decided the investment in seaports, terminals and wharves, which must not be lower than the rent already decided by the Minister of Finance.

3. The rent for port and wharf infrastructures shall be determined according to the following main contents:

a) The fixed price, which shall be calculated according to the annual asset depreciation rate, amounts used to pay loan principal and interest (if any), expense for management and operation of leased port and wharf infrastructures and other expenses as prescribed. The lifetime of port and wharf infrastructures used to calculate the rent is 50 years at most. The rent for port and wharf infrastructures shall not be lower than the fixed price;

b) The changeable price, which shall be collected according to a percentage (%) of the annual revenue from the operation of the leased assets;

c) Value of leased assets;

d) List and specifications of leased assets;

dd) Lease conditions;

e) Rights, obligations and responsibilities of related parties;

g) Other necessary conditions.

4. The lessor shall request the authority that has decided the investment in seaports, terminals and wharves to consider approving the adjustment of the rent in the following cases:

a) Once every 5 years;

b) When the inflation rate in Vietnam exceeds 15% a year;

c) Other circumstances as proposed by the lessor or lessee and approved by the investment-deciding authority.

Article 31. Conditions for selection of lessees of port and wharf infrastructures

A lessee of port and wharf infrastructures must:

1. satisfy all conditions prescribed in Clause 4, Article 86 of the Vietnam Maritime Code.

2. have experience in management and operation of seaports.

3. have adequate staff members for management and operation of port and wharf infrastructures to be leased.

4. offer the highest rent which is not lower than the rent stated in the approved plan for the leasing of port and wharf infrastructures.

Article 32. Methods of selection of lessees of port and wharf infrastructures

1. The methods and procedures for selection of lessees shall comply with the Law on Bidding and this Decree.

2. The Ministry of Transport shall prepare and issue the specimen of the documents about bidding for leasing of state-funded port and wharf infrastructures.

Article 33. Contract on leasing of port and wharf infrastructures

1. The leasing of port and wharf infrastructures shall be carried out under a contract signed by the two parties. Such contract shall be made according to the approved lessee selection result and in accordance with relevant regulations of law.

2. A lease contract must have the following main contents:

a) Name, address and bank account number of the lessor;

b) Name, address and bank account number of the lessee;

c) Purposes of the lease;

d) Lease term;

dd) Rent and payment conditions and method;

e) Rights and obligations of the lessor and lessee;

g) List of leased assets;

h) Conditions and procedures for modifying the lease contract;

i) Fulfillment of disputes.

Article 34. Use of revenues from the leasing of port and wharf infrastructures

1. Revenues from the leasing of port and wharf infrastructures shall be prioritized for use for the following purposes and expenses:

a) Return on investment capital for construction of port and wharf infrastructures;

b) Expenses for maintenance and repair of the port and wharf infrastructures that are leased out if they are covered by the lessor;

c) Upgrade, improvement and expansion of seaport infrastructures;

d) Investment in construction of new ports and wharves and for other purposes for the marine development;

dd) Expenses for preparation of a plan for and selection of lessee;

e) The lessor’s expenses for management and operation of seaport infrastructures;

g) Other proper purposes and reasonable expenses.

2. The Ministry of Finance shall take charge and cooperate with the Ministry of Transport in specifying a financial mechanism for collection, payment and use of revenues from the leasing of state-funded port and wharf infrastructures.

Article 35. Subleasing of port and wharf infrastructures

1. The lessee may sublease part of ports and wharf infrastructure to a Vietnamese or foreign organization or individual in accordance with this Decree and shall obtain the written consent of the lessor before effecting the sublease.

2. The subleasing of port and wharf infrastructures shall be carried out under a contract, which must not be contrary to the contents of the lease contract signed with the lessor.

3. The lessee must be responsible to the lessor for the sublease. The rights and responsibilities that arise (if any) between the lessor and lessee shall be decided by the two parties.

4. The sublessee of port and wharf infrastructures shall manage and operate ports and wharves in accordance with regulations of law, and the lease contract and may not continue to sublease such infrastructures.

Article 36. Organization of management and operation of port and wharf infrastructures

1. The authority that makes a decision to invest in and construct seaports, terminals and wharves shall organize the management and operation of port and wharf infrastructures.

2. The organization that is assigned to manage and operate port and wharf infrastructures has the following functions, tasks and rights:

a) Create a mechanism for management and operation of port and wharf infrastructures and submit it to the investment-deciding authority for approval and organize the implementation thereof;

b) Manage state assets and supervise the operation of the leased port and wharf infrastructures;

c) Supervise the execution of the lease contract;

d) Organize regular and periodical inspection and supervision of the operation of port and wharf infrastructures to ensure they are used according to their functions and specifications as prescribed;

dd) Organize the collection of rent for the leasing of port and wharf infrastructures;

e) Request the lessee to strictly observe the prescribed technical processes for operating, maintaining and using port and wharf infrastructures; report on the lessee’s violations, if any, to the investor;

g) Cooperate with the infrastructure operator in dealing with emergencies that damage port and wharf infrastructures; supervise the repair of damaged port and wharf infrastructures under its management;

h) Promptly inform regulatory authority when it is discovered that the depth of navigational channels, area of water facing against the wharf, turning basin, aids to navigation systems and other auxiliary structures fails to comply with the technical design approved by a competent authority;

i) Receive and propose plans for design, construction, improvement, expansion or upgrade of port and wharf infrastructures at the request of the lessee or regulatory authority;

k) Supervise the satisfaction of the requirements for fire and explosion prevention and fighting, environmental sanitation, security and order and occupational safety within the seaports, terminals and wharves;

l) Review the actual operation of port and wharf infrastructures; periodically report it to the investor and regulatory authorities under regulations;

m) Perform other assigned tasks.

Article 37. Inspection of seaport infrastructures

1. Contents and procedures for carrying out inspection of seaport infrastructures shall comply with regulations of law on construction.

2. The Ministry of Transport shall direct the Vietnam Maritime Administration to organize the survey of seaport infrastructures.