CIRCULAR

ON AMENDMENTS TO SOME ARTICLES OF THE CIRCULAR NO. 130/2014/TT-BQP DATED SEPTEMBER 24, 2014 OF THE MINISTER OF NATIONAL DEFENSE ON GUIDELINES FOR SOME ARTICLES OF THE GOVERNMENT’S DECREE NO. 162/2013/ND-CP DATED NOVEMBER 12, 2013 ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS COMMITTED WITHIN TERRITORIAL WATERS, ISLANDS AND CONTINENTAL SHELF OF THE SOCIALIST REPUBLIC OF VIETNAM

Pursuant to the Law on Penalties for Administrative Violations dated June 20, 2012;

Pursuant to the Law on Vietnamese Sea dated June 21, 2012;

Pursuant to the Government’s Decree No.162/2013/ND-CP dated November 12, 2013 on penalties for administrative violations committed within territorial waters, islands and continental shelf of the Socialist Republic of Vietnam;

Pursuant to the Government’s Decree No. 23/2017/ND-CP dated March 13, 2017 on amendments to some Articles of the Government’s Decree No.162/2013/ND-CP dated November 12, 2013 on penalties for administrative violations committed within territorial waters, islands and continental shelf of the Socialist Republic of Vietnam;

Pursuant to the Government’s Decree No. 164/2017/ND-CP dated December 30, 2017 defining functions, tasks, entitlements and organizational structure of the Ministry of National Defense;

At the request of the Commander of the Coast Guard;

The Minister of National Defense hereby promulgates a Circular on amendments to some Articles of the Circular No. 130/2014/TT-BQP dated September 24, 2014 of the Minister of National Defense on guidelines for some Articles of the Government’s Decree No. 162/2013/ND-CP dated November 12, 2013 on penalties for administrative violations committed within territorial waters, islands and continental shelf of the Socialist Republic of Vietnam (hereinafter referred to as “the Circular No. 130/2014/TT-BQP”).

Article 1. Amendments to some Articles of the Circular No. 130/2014/TT-BQP

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

“1. This Circular provides guidelines for some Articles of the Government's Decree No. 162/2013/ND-CP dated November 12, 2013 on penalties for administrative violations committed within territorial waters, islands and continental shelf of the Socialist Republic of Vietnam (hereinafter referred to as “the Decree No. 162/2013/ND-CP”), Government’s Decree No. 23/2017/ND-CP dated March 13, 2017 on amendments to some Articles of the Government’s Decree No. 162/2013/ND-CP dated November 12, 2013 on penalties for administrative violations committed within territorial waters, islands and continental shelf of the Socialist Republic of Vietnam (hereinafter referred to as “the Decree No. 23/2017/ND-CP”).”

2. Clause 2 of Article 2 is amended as follows:

“2. Persons who have the power to impose administrative penalties and record administrative violations as prescribed in the Decree No. 162/2013/ND-CP and Decree No. 23/2017/ND-CP; relevant organizations and individuals.”

3. Clause 2 of Article 5 is amended as follows:

“2. The entry into prohibited or restricted areas within the territorial waters of Vietnam prescribed in Clause 3 Article 5 of the Decree No. 162/2013/ND-CP means a foreign ship exercising the right of innocent passage through the territorial waters of Vietnam but entering a prohibited or restricted area within Vietnam’s territorial waters established by the Government of Vietnam for the purpose of protecting sovereignty, national defense, security and national interests or maritime safety, protecting marine resources and ecosystems, fighting against pollution, responding to marine emergencies or disasters, preventing and controlling the spread of diseases without the permission of the Socialist Republic of Vietnam.

Prohibited and restricted areas within the territorial waters of Vietnam are prescribed in the Law on Vietnamese Sea 2012 and Government’s Decree No. 71/2015/ND-CP dated November 03, 2015.”

4. Article 6 is amended as follows:

“Article 6. Violations against regulations on flying of Vietnamese flag and national flag prescribed in Article 7 of the Decree No. 162/2013/ND-CP, amended in Clause 1 Article 1 of the Decree No. 23/2017/ND-CP

1. The flying of flags on ships at seaports shall comply with Clause 1 Article 61 of the Government’s Decree No. 58/2017/ND-CP dated May 10, 2017.

2. The flying of national flags on Vietnamese ships shall comply with Clause 2 Article 61 of the Government’s Decree No. 58/2017/ND-CP dated May 10, 2017.

3. The flying of national flag and Vietnamese flag on foreign ships upon its their operation within   maritime boundary areas shall comply with Clause 2 Article 8 of the Government’s Decree No. 71/2015/ND-CP dated September 03, 2015.”

5. Article 9 is amended as follows:

“Article 9. Violations against regulations on laying of submarine cables and pipelines, and exploitation of tidal and wind energy within the territorial waters, islands and continental shelf of the Socialist Republic of Vietnam prescribed in Article 15 of the Decree No. 162/2013/ND-CP, amended in Clause 2 Article 1 of the Decree No. 23/2017/ND-CP

1. Transport of cargoes at sea without having any contract or equivalent document prescribed in Point a Clause 1 Article 15 of the Decree No. 162/2013/ND-CP means the transport cargoes at sea without having any documentary evidences for the illegal transport of cargoes at sea, to be specific:

a) Transport of cargoes on a voyage without having a voyage charter party concluded in writing prescribed in Clause 2 Article 146 of the Vietnam Maritime Code 2015 and other relevant documents;

b) Transport of cargoes under the bill of lading contract without having one of the following documents: a transport contract concluded as prescribed in the Vietnam Maritime Code 2015 and other relevant documents; bill of lading, through bill of lading, sea waybill and other transport documents of which contents and value are agreed upon by the carrier and shipper;

Regarding the bill of lading of cargoes that are temporarily imported for re-export, it is required to comply with Article 7 of the Circular No. 11/2017/TT-BCT dated July 28, 2017 of the Minister of Industry and Trade.

2. Failure to use means of transport suitable for the type of cargoes prescribed in Point b Clause 1 Article 15 of the Decree No. 162/2013/ND-CP, to be specific:

a) Failure to use suitable means of transport of petrol and oil prescribed in the Government’s Decree No. 83/2014/ND-CP dated September 03, 2014 and Government’s Decree No. 08/2018/ND-CP dated January 15, 2018.

b) Failure to use suitable means of transport of dangerous cargoes prescribed in the Government’s Decree No. 29/2005/ND-CP dated March 10, 2005, Government’s Decree No. 60/2016/ND-CP dated July 01, 2016 and Circular No. 46/2017/TT-BGTVT dated November 27, 2017 of the Minister of Transport.

c) Failure to use means of transport suitable for the type of cargoes that are not petrol, oil or dangerous ones prescribed by law.

3. Ship-to-ship transfer of petrol, oil, ores and other cargoes at a location other than the regulated one prescribed in Point c Clause 1 Article 15 of the Decree No. 162/2013/ND-CP, to be specific:

a) Ship-to-ship transfer of petrol and oil at a location other than the regulated one prescribed in Clause 15 Article 9 of the Government’s Decree No. 83/2014/ND-CP dated September 03, 2014;

c) Ship-to-ship transfer of ores and other cargoes at a location other than the regulated one prescribed by law.

4. Transport, trading and ship-to-ship transfer of cargoes not subject to conditions for transport and trading without valid documents or with insufficient documentary evidences for the legitimacy of cargoes prescribed in Clause 2 Article 15 of the Decree No. 162/2013/ND-CP, amended in Clause 2 Article 1 of the Decree No. 23/2017/ND-CP, to be specific:

a) Absence of documentary evidences for the legitimacy of imports transported from the checkpoint of import to inland prescribed in Article 4 of the Joint Circular No. 64/2015/TTLT-BTC-BCT-BCA-BQP dated May 08, 2015 of the Minister of Finance, Minister of Industry and Trade, Minister of Public Security and Minister of National Defense.

b) Transport of goods for export without a declaration of exports that have been granted customs clearance and certified that goods have passed through the customs controlled area prescribed in the Circular No. 38/2015/TT-BTC dated March 25, 2015 of the Minister of Finance;

c) Goods in transit to a customs place with insufficient documents to be submitted to follow customs procedures prescribed in Clauses 2, 3, 4 and 5 Article 16 of the Circular No. 38/2015/TT-BTC dated March 25, 2015 of the Minister of Finance and Circular No. 39/2015/TT-BTC dated April 20, 2018 of the Minister of Finance.

 Absence of documentary evidences for the legitimacy of imports transported being sold inland prescribed in Article 5 of the Joint Circular No. 64/2015/TTLT-BTC-BCT-BCA-BQP dated May 08, 2015 of the Minister of Finance, Minister of Industry and Trade, Minister of Public Security and Minister of National Defense;

d) In the case of transport, trading and ship-to-ship transfer of minerals of illegal origin, it is required to comply with Point dd Clause 1 Article 21 of the Government’s Decree No. 185/2013/ND-CP dated November 15, 2014 amended in Clause 19 Article 1 of the Government’s Decree No. 124/2015/ND-CP dated November 19, 2015;

dd) Transport of goods that are forest products without having a valid dossier or with a valid dossier which is not relevant to the forest products that are actually being transported; timber without a forest ranger’s hammer mark with respect to the timber required by law to have a forest ranger’s hammer mark.

Valid forest product dossiers shall be determined as prescribed in the Circular No. 01/2012/TT-BNNPTNT dated January 04, 2012 and No. 40/2015/TT-BNNPTNT dated October 21, 2015 of the Minister of Agriculture and Rural Development;

e) Goods that are manufactured, transported and traded inland not in the cases mentioned in Points a, b, c, d and dd of this Clause, without or with insufficient valid documentary evidences, including:

VAT invoices or sales invoices prescribed in the Circular No. 39/2014/TT-BTC dated March 31, 2014, Circular No. 119/2014/TT-BTC dated August 25, 2014, Circular No. 26/2015/TT-BTC dated February 27, 2015 and Circular No. 37/2017/TT-BTC dated April 27, 2017 of the Minister of Finance.

Documents that are printed, issued, used and managed as invoices including delivery notes and notes of delivery of goods to agents prescribed in the Circular No. 39/2014/TT-BTC dated March 31, 2014, Circular No. 26/2015/TT-BTC dated February 27, 2015 and Circular No. 37/2017/TT-BTC dated April 27, 2017 of the Minister of Finance.

The use of illegal invoices and illegal use of invoices shall be determined as prescribed in Articles 22 and 23 of the Circular No. 39/2014/TT-BTC dated March 31, 2014 of the Minister of Finance and Government’s Decree No. 04/2014/ND-CP dated January 17, 2014.

In the case of transport, trading and ship-to-ship transfer of other cargoes without valid documents or with insufficient documentary evidences for the legitimacy of cargoes, it is required to comply with regulations of law.

5. Transport, trading and ship-to-ship transfer of cargoes subject to conditions for trading and transport without valid documents or with insufficient documentary evidences for legitimacy of such cargoes prescribed in Clause 2 Article 15 of the Decree No. 162/2013/ND-CP, amended in Clause 2 Article 1 of the Decree No. 23/2017/ND-CP, to be specific:

a) Absence of invoices and documents; documents that are printed, issued, used and managed as invoices including delivery notes and notes of delivery of goods to agents prescribed in the Circular No. 39/2014/TT-BTC dated March 31, 2014, Circular No. 26/2015/TT-BTC dated February 27, 2015 and Circular No. 37/2017/TT-BTC dated April 27, 2017 of the Minister of Finance.

b) Imports on the list of goods imported under the license or given conditions, which are sold without an import license or document issued by the competent authority.

The list of goods imported under the license or given conditions is provided in the Decree No. 69/2018/ND-CP dated May 15, 2018 on guidelines for some Articles of the Law on Foreign Trade Management;

c) The list of goods subject to conditions for trading and transport, which is provided in the Appendix III enclosed with the Government’s Decree No. 59/2006/ND-CP dated June 12, 2006 and Appendix 4 enclosed with the Law No. 03/2016/QH14 on amendments to Article 6 and Appendix 4 on the List of business lines subject to conditions stipulated in the Law on Investment and other relevant documents.”

6. Article 10 is amended as follows:

“Article 10. Violations against regulations on registration prescribed in Article 16 of the Decree No. 162/2013/ND-CP

1. Ship documents and certificates prescribed in Clause 1 Article 16 of the Decree No. 162/2013/ND-CP are provided in the Circular No. 41/2016/TT-BGTVT dated December 16, 2016 of the Minister of Transport.

2. The last port clearance certificate specified in Clause 2 Article 16 of the Decree No. 162/2013/ND-CP is a document issued or certified by a port authority or competent authority in charge of the last port of dispatch as prescribed in the Government’s Decree No. 58/2017/ND-CP dated May 10, 2017.

In case a ship has been issued with a Port Clearance Certificate but stays at the seaport for more than 24 hours since its exit is accepted, procedures for the ship’s exit shall be carried out again as prescribed in this Article the Government’s Decree No. 58/2017/ND-CP dated May 10, 2017.

7. Article 11 is amended as follows:

“Article 11. Violations against regulations on seaman’s certificates of competency, book and passport; violations against regulations on safety of life at sea prescribed in Articles 17 and 18 of the Decree No. 162/2013/ND-CP

1. The violation against regulation on certificate of competency prescribed in Article 17 of the Decree No. 162/2013/ND-CP means a seaman working on board a ship without having all certificates of competency as prescribed in the Circular No. 37/2016/TT-BGTVT dated December 25, 2016 of the Minister of Transport and other relevant documents.

2. The failure to reach the minimum manning levels prescribed in Clause 3 Article 18 of the Decree No. 162/2013/ND-CP means the failure to reach the minimum manning levels for Vietnamese ships as prescribed in the Circular No. 37/2016/TT-BGTVT dated December 25, 2016 of the Minister of Transport and other relevant documents.

3. The violation against regulation on seaman’s book and passport prescribed in Article 17 of the Decree No. 162/2013/ND-CP means a seaman working on board a ship without having or insufficiently having seaman’s book and passport as prescribed in the Circular No. 23/2017/TT-BGTVT dated July 28, 2017 of the Minister of Transport, Decree No. 136/2007/ND-CP dated August 17, 2007 and Government’s Decree No. 94/2015/ND-CP dated October 16, 2015 and other relevant documents.”

8. Article 12 is amended as follows:

“Article 12. Violations against regulations on maritime safety prescribed in Article 20 of the Decree No. 162/2013/ND-CP

The maritime accident classification as the basis for determining the violations prescribed in Clauses 3 and 4 Article 20 of the Decree No. 162/2013/ND-CP shall comply with the Circular No. 34/2015/TT-BGTVT dated July 24, 2015 and Circular No. 39/2017/TT-BGTVT dated November 07, 2017 of the Minister of Transport.”

9. Clauses 2, 4 and 6 of Article 13 are amended as follows:

“2. Name of the ship and port of registry prescribed in Point a Clause 3 Article 21 of the Decree No 162/2013/ND-CP shall comply with the Government’s Decree No. 171/2016/ND-CP dated December 27, 2016.

4. Regulations on transport of dangerous cargoes by sea shall comply with the Vietnam Maritime Code 2015 and other relevant documents.

6. Routes and permitted navigation areas for inland waterway vehicles shall comply with the Circular No.16/2013/TT-BGTVT dated July 30, 2013 and Circular No. 05/2017/TT-BGTVT dated February 21, 2017 of the Minister of Transport. Routes and permitted navigation areas for inland waterway vehicles are also defined in the certificate of registration for inland waterway vehicles or certificate of technical and environmental safety issued to inland waterway vehicles.”

10. Clauses 2 and 3 of Article 15 are amended as follows:

“2. The oil spill response plans or plans for response to oil pollution or chemical pollution at sea specified in Point a Clause 3 Article 25 of the Decree No. 162/2013/ND-CP shall comply with the Prime Minister’s Decision No. 02/2013/QD-TTg dated January 14, 2013 and No.63/2014/QD-TTg dated November 11, 2014.

3. Noxious substances include noxious liquid substances, ballast water, tank washings, other residues or mixtures containing such substances. Noxious liquid substances are any substances divided into Category X, Y or Z mentioned in Tables 8E/17.1 and 8E/18.1 Part 8E Section II of QCVN 21: 2010/BGTVT enclosed with the Circular No. 12/2010/TT-BGTVT dated April 21, 2010 of the Minister of Transport or other liquid substances temporarily evaluated as prescribed in Section 6.3 Annex II Convention MARPOL 73/78 are the substances falling into Category X, Y or Z. To be specific:

a) Category X: Noxious liquid substances which if discharged into the sea from tank cleaning or deballasting operations would present a major hazard to either marine resources or human health;

b) Category Y: Noxious liquid substances which if discharged into the sea from tank cleaning or deballasting operations would present a hazard to either marine resources or human health or cause harm to amenities or other legitimate uses of the river and sea;

c) Category Z: Noxious liquid substances which if discharged into the sea from tank cleaning or deballasting operations would present a minor hazard to either sea or river resources or human health.”

11. Clauses 1, 3 and 4 of Article 16 are amended as follows:

“1. Hazardous wastes specified in Article 26 of the Decree No. 162/2013/ND-CP are the ones identified and classified as prescribed in the Circular No. 36/2015/TT-BTNMT dated June 30, 2015 of the Minister of Natural Resources and Environment on hazardous waste management. Hazardous wastes shall be identified and classified as prescribed in the Appendix 8 enclosed with the Circular No. 36/2015/TT-BTNMT and QCVN 07:2009/BTNMT on Hazardous Waste Thresholds enclosed with the Circular No. 25/2009/TT-BTNMT dated November 16, 2009 of the Minister of Natural Resources and Environment.

3. The license for hazardous waste management is a common name of licenses of management/transport/treatment/destruction of hazardous wastes specified in the Circular No. 36/2015/TT-BTNMT dated June 30, 2015.

4. “1. Registration documents enclosed with the License for hazardous waste management are the hazardous waste management documents of owners of hazardous waste treatment/destruction/transport establishments or hazardous waste source owners prescribed in the Circular No. 36/2015/TT-BTNMT dated June 30, 2015.”

12. Clause 1 of Article 17 is amended as follows:

“1. In case the penalty for an administrative violation is imposed by multiple forces specified in Chapter 3 of the Decree No. 162/2013/ND-CP and Clauses 3, 4, 5, 6 and 7 Article 1 of the Decree No. 23/2017/ND-CP, the imposition shall be carried out by the first transferee of the cases.”

13. Article 18 is amended as follows:

“Article 18. Power to record administrative violations prescribed in Article 33 of the Decree No. 162/2013/ND-CP, amended in Clause 8 Article 1 of the Decree No. 23/2017/ND-CP

1. Soldiers of Coast Guard, police officers of Coast Guard, coastguard team leaders, coastguard squad leaders, captains of coastguard stations, commanders of coastguard platoons, commanders in chief of coastguard squadrons, Commanders Of Coastguard Headquarters and Commanders of Coastguard who are on duty have the right to record administrative violations specified in the Decree No. 162/2013/ND-CP amended in the Decree No. 23/2017/ND-CP.

2. Soldiers of border guard forces, heads of border-guard stations, leaders of soldiers of border guard forces, commanders of border-guard flotillas, commanders of border-guard sub-zones and commanders of port border guards, commanders of provincial-level border guard forces and commanders of border guard fleets who are on duty have the right to record administrative violations specified in the Decree No. 162/2013/ND-CP amended in the Decree No. 23/2017/ND-CP.

3. The power to record administrative violations of titles in customs, transport, market surveillance and fisheries resources surveillance forces and Presidents of People’s Committees shall comply with Article 33 of the Decree No. 162/2013/ND-CP amended in Clause 8 Article 1 of the Decree No. 23/2017/ND-CP.”

14. Article 20 is amended as follows:

“Article 20. Transition clauses

1. In the cases where any of the documents referred to in this Circular is amended or replaced, the newest one shall apply.

2. Forces leaders that have the power to impose administrative penalties as prescribed in the Decree No. 162/2013/ND-CP and Decree No. 23/2017/ND-CP shall update documents that amends or replaces the documents referred to in this Circular to ensure the consistency".

Article 2. Effect

This Circular comes into force from November 01, 2018.

Article 3. Responsibility for implementation

1. The Commander of the Coast Guard and forces’ leaders that have the power to impose administrative penalties shall organize and direct the imposition of administrative penalties as prescribed in the Decree No. 162/2013/ND-CP, Decree No. 23/2017/ND-CP, this Circular and other relevant documents.

2. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of National Defense for consideration./.

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