Decree No. 37/2017/ND-CP dated April 04, 2017 of the Government on conditions for commercial operation of seaports

DECREE

On conditions for commercial operation of seaports[1]

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

Pursuant to the December 8, 2015 Maritime Code of Vietnam;

Pursuant to the November 26, 2014 Investment Law and the Law Amending and Supplementing Article 6 and Appendix 4 of the Investment Law Regarding the List of Sectors and Trades Subject to Conditional Business Investment;

Pursuant to the November 26, 2014 Enterprise Law;

At the proposal of the Minister of Transport;

The Government promulgates the Decree on conditions for commercial operation of seaports.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Decree prescribes conditions for commercial operation of seaports, including seaports, wharves, piers, floating terminals, anchorage zones, transshipment zones and offshore oil ports (below referred to as seaports).

Article 2.Subjects of application

This Decree applies to organizations and individuals engaged in commercial operation of seaports in Vietnam.

Article 3.Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Commercial operation of a seaport means activities to directly operate a seaport.

2. Port enterprise means an enterprise commercially operating a seaport.

Article 4.Principles of commercial operation of seaports

1. Port enterprises may commercially operate seaports only after obtaining a certificate of eligibility for commercial operation of seaports under this Decree.

2. Port enterprises shall commercially operate seaports in conformity with announced use purposes and functions of seaports.

3. Port enterprises shall maintain all conditions prescribed in this Decree and other relevant laws throughout the period of commercial operation of seaports.

Chapter II

CONDITIONS FOR COMMERCIAL OPERATION OF SEAPORTS

Article 5.Conditions on enterprises

1. Port enterprises shall be established in accordance with the law on enterprises.

2. In case a foreign-invested port enterprise wishes to provide cargo handling services, it may only establish a joint-venture enterprise in which the foreign holding rate must comply with the Vietnam’s Schedule of Commitments to the World Trade Organization (WTO).

Article 6.Conditions on organizational structure and personnel

1. Conditions on organizational structure:

a/ Having a section for management of the commercial operation of seaports;

b/ Having a section for management of maritime security issues according to regulations;

c/ Having a section or personnel in charge of occupational safety and health in accordance with regulations.

2. Conditions on staff:

a/ The person in charge of the section managing commercial operation of seaports must possess a university or higher degree in maritime shipping, economics or trade and have at least 5 years’ experience in commercial operation of seaports;

b/ Seaport security officers must have been trained and possess certificates in accordance with the Ministry of Transport’s regulations and the International Ship and Port Facility Security (ISPS) Code;

c/ The person in charge of occupational safety and health must have been trained in and possess certificates of fire prevention and fighting and occupational safety and health  in accordance with regulations.

Article 7.Conditions on physical foundations and equipment

1. Having sufficient physical foundations, storage space and necessary equipment and devices in conformity with national technical regulations on seaports; in case of insufficient storage space, port enterprises shall sign contracts to lease storage space for at least 5 years, except cases of commercially operating floating terminals, anchorage zones, transshipment zones or offshore oil ports.

2. Port enterprises must have adequate cargo handling equipment, special-use equipment, vehicles and other necessary equipment to serve cargo handling and other operations in conformity with the announced functions and use purposes of seaports.

Article 8.Conditions on occupational safety and health, fire and explosion prevention and fighting

1. Having sufficient employees and plans to ensure occupational safety and health as prescribed in the Government’s Decree No. 39/2016/ND-CP of May 15, 2016, detailing a number of articles of the Law on Occupational Safety and Health and the Government’s Decree No. 37/2016/ND-CP of May 15, 2016, detailing and guiding the implementation of a number of articles of the Law on Occupational Safety and Health regarding compulsory occupational accident and disease insurance.

2. Meeting conditions on fire prevention and fighting and having fire fighting plans in accordance with the Government’s Decree No. 79/2014/ND-CP of July 31, 2014, detailing a number of articles of the Law on Fire Prevention and Fighting and the Law Amending and Supplementing a Number of Articles of the Law on Fire Prevention and Fighting.

Article 9.Conditions on environmental protection

1. Having adequate devices for receiving and recovering waste discharged from ships operating at seaports for disposal in accordance with the InternationalConventionfor the Prevention of Pollution from Ships (MARPOL Convention).

2. Having sufficient seaport environmental protection dossiers approved by competent authorities in accordance with the Law on Environmental Protection and the Government’s Decree No. 18/2015/ND-CP of February 14, 2015, providing environmental protection planning, strategic environmental assessment, environmental impact assessment, and environmental protection plans.

3. Ensuring sufficient staff, systems, works and equipment for management and disposal of waste generated at seaports as prescribed in Article 68 of the Law on Environmental Protection.

Chapter III

PROCEDURES FOR GRANT OF CERTIFICATES OF ELIGIBILITY FOR COMMERCIAL OPERATION OF SEAPORTS

Article 10.Procedures for grant of certificates of eligibility for commercial operation of seaports

1. A port enterprise applying for a certificate of eligibility for commercial operation of seaports (below referred to as certificate) may submit directly or otherwise deliver to the Vietnam Maritime Administration 1 dossier set comprising:

a/ An application for grant of a certificate, made according to Form No. 1 in the Appendix to this Circular;

b/ A certified copy of its enterprise registration certificate or a copy together with the original enterprise registration certificate for comparison;

c/ A list of persons holding the titles specified in Clause 2, Article 6 of this Decree, their labor contracts and certified copies of their diplomas and certificates or copies together with the original diplomas and certificates for comparison;

d/ The port enterprise’s plan on commercial operation of the seaport.

2. The Vietnam Maritime Administration shall receive the dossier; if the dossier is invalid, within 2 working days after receiving it, the Vietnam Maritime Administration shall guide the enterprise to complete the dossier in accordance with this Decree; if the dossier is valid, it shall issue a receipt.

3. Within 10 working days after receiving a complete and valid dossier, the Vietnam Maritime Administration shall conduct an appraisal and grant a certificate and hand it over or send it by post to the enterprise; in case of refusal to grant a certificate, the Vietnam Maritime Administration shall issue a written reply clearly stating the reason.

4. Certificate shall be granted according to Form No. 2 in the Appendix to this Decree.

Article 11.Procedures for re-grant of certificates

1. A certificate shall be re-granted when there is any change in its contents or when it is lost or damaged.

2. The port enterprise shall submit directly or otherwise deliver to the Vietnam Maritime Administration 1 dossier set of application for re-grant of a certificate. The dossier set must comprise an application for re-grant of the certificate, made according to Form No. 1 in the Appendix to this Circular and documents relating to the change in the certificate (if any).

3. The Vietnam Maritime Administration shall receive the dossier; if the dossier is invalid, within 2 working days after receiving it, the Vietnam Maritime Administration shall guide the enterprise to complete the dossier in accordance with this Decree; if the dossier is valid, it shall issue a receipt.

4. Within 5 working days after receiving a complete dossier, the Vietnam Maritime Administration shall conduct an examination and grant a certificate and hand it over or send it by post to the enterprise; in case of refusal to re-grant the certificate, the Vietnam Maritime Administration shall issue a written reply clearly stating the reason.

5. When re-granting a certificate, the Vietnam Maritime Administration shall clearly write in the new certificate the cancellation of the old one.

Article 12.Revocation of certificates of eligibility for commercial operation of seaports

1. A certificate shall be revoked in the following cases:

a/ The port enterprise has violated the prescribed business conditions or the revocation is so requested by a competent state agency after the port enterprise has been proven to have committed a violation subject to revocation of the certificate;

b/ The port enterprise deliberately provided false information when applying for the certificate.

c/ Other cases as prescribed by law.

2. The Vietnam Maritime Administration shall issue a decision on revocation of the granted certificate and notify the revocation to related agencies and at the same time, announce information on the port enterprise whose certificate is revoked on its website.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 13.Responsibilities of related agencies and port enterprises

1. The Ministry of Transport shall:

a/ Perform the unified state management of commercial operation of seaports in Vietnam;

b/ Apply information technology in the management, evaluation and recognition of seaports qualified for commercial operation and management of relevant data;

c/ Examine, inspect and handle violations of regulations on and conditions for commercial operation of seaports prescribed in this Decree and other relevant laws;

d/ Develop, supplement, amend and promulgate national technical regulations concerning seaports in conformity with technology development levels at home and in the world.

2. The Ministry of Natural Resources and Environment shall assume the prime responsibility for, and coordinate with the Ministry of Transport in, guiding in detail plans on environmental pollution prevention and control for seaports in accordance with law.

3. The Ministry of Public Security and the Ministry of National Defense shall closely coordinate with the Ministry of Transport in, guiding in detail fire and explosion response plans and security plans for seaports in accordance with law.

4. People’s Committees of provinces and centrally run cities shall, based on their prescribed functions, tasks and powers, perform the state management of operations of seaports in their localities in accordance with law.

5. Port enterprises shall comply with regulations on conditions for commercial operation of seaports in this Decree and other relevant law; and maintain business conditions throughout their operation.

Article 14.Effect

This Decree takes effect on July 1, 2017.

Article 15.Transitional provisions

Port enterprises which have commenced commercial operation of seaports before the effective date of this Decree may continue their business but must meet the conditions prescribed in this Decree as from July 1, 2020.

Article 16.Organization of implementation

1. The Minister of Transport shall assume the prime responsibility for, and coordinate with ministries, sectors and People’s Committees of provinces and centrally run cities in, organizing the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of People’s Committees of provinces and centrally run cities and related organizations and individuals shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC

* The Appendix to this Decree is not translated.