Decree No. 32/2010/ND-CP on the management of fishery activities of foreign ships in Viet Nam’s sea areas

Issue nos 01-02IMay 2010 (Gong Bao nos 206-207JMay 8,2010) OFFICIAL GAZETTE DECREES: Chapter I GENERAL PROVISIONS 45 Decree No.32/2010IND·CPof March 30, 2010, on the management of fishery activities of foreign ships in Vietnam's sea areas THE GOVERNMENT Pursuant to the December 25, 200} Law on Organization of the Government; Pursuant to the November 26,2003 Fisheries Law: Pursuant to the July 2, 2002 Ordinance on Handling ofAdministrative Violations and April 2, 2008 Ordinance No. 041200SIUBTVQHl2 Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations; At the proposal ofthe Minister ofAgriculture and Rural Development, Article 1. Scope of regulation This Decree provides for the conditions, procedures and competence for grant of permits for fishery activities; responsibilities of owners of foreign fishing vessels engaged in fishery activities in Vietnam's sea areas; responsibilities of state management agencies for fishery activities of foreign fishing vessels in Vietnam's sea areas; examination, control and handling of administrative violations, and complaints and denunciations related to fishery activities of foreign fishing vessels in Vietnam's sea areas. Article 2. Subjects of application This Decree applies to owners of foreign fishing vessels engaged in fishery activities in Vietnam's sea areas and concerned agencies, organizations and individuals. Article 3. Interpretation of terms In this Decree, the terms below are construed as follows: 1,Owner of a fishing vessel means the owner, manager or captain of that fishing vessel, 2. Vietnam's sea areas are the sea areas under the sovereignty, sovereign rights and jurisdiction of the Socialist Republic of Vietnam as defined in the June 26, 2003Law on National Boundaries and treaties between the Socialist Republic of Vietnam and other countries, 3. Foreign fishing vessel means a fishing vessel flying a foreign flag which is engaged in fishery activities. © VIETNAM LAW &LEGAL FORUM 46 OFFICIAL GAZETTE Issue nos 01·02lMay 2010 (Gong Bao nos 206-2071May 8, 2010) Article 4. Principles of fishery activities of foreign fishing vessels in Vietnam's sea areas 1.Fishery activitiesof foreignfishing vessels in Vietnam's sea areas must be carried out on the basis of international cooperation, ensuring equality, mutual benefits and respect for each party's independence, sovereignty and law as well as internationallaw. 2.Fishery activitiesof foreign fishing vessels in Vietnam1s seaareasmustcomplywith fisheries development master plans and plans and ensure safety forfishing vessels and people workingon board. 3. Foreign fishing vessels may be engaged in fishery activitiesin Vietnam'ssea areasonlyafter they are granted fishery activity permits by competent Vietnamese agencies. 4. Foreign fishing vessels engaged in fishery activities in Vietnam's sea areas must strictly observe this Decree and other relevant regulations of Vietnam. Chapter II CONDITIONS, PROCEDURES AND COMPETENCE FOR THE GRANT, RE GRANT EXTENSION AND WITIIDRAL OF FISHERY ACTIVITY PERMITS OF FOREIGN FISHING VESSELS Article 5. FIsheryactivitypermits of foreign fishing vessels l. A fishery activity penrut (below referred to as permit) will be granted to each fishing vessel. A fishing vessel owner may apply for permits for more than one fishing vessel. The form of permits is provided in Appendix I to this Decree (not printed herein). 2. The maximum validity term of a granted permit is 12 months, for fishing activities, or 24 months. for other fishery activities. 3.Apermit may be extended for no more than 3 times. with each extension not exceeding 12 months. Article 6. First-time grant of permit A foreign fishing vessel will be considered and granted a permit if its owner satisfies the following conditions: L Having any of the following papers and documents: al The investment license, issued by a competent state management agency; bl Documentsof a projecton aquaticresource survey and exploration or exploration cooperation, approved by the Prime Minister; clDocumentsofa projectonaquaticresource relatedtechnicaltrainingand technology transfer, approved by the Minister of Agriculture and Rural Development; d/ Documents of a project on aquatic product trading. purchase and transportation, approved by the Minister of Agriculture and Rural Development or a provincial-level People's Committee chairperson. 2. A fishing vessel registration certificate, issued by a competent authority of the country of which the fishing vessel bears the nationality. 3.Afishing vessel technicalsafetycertificate, issued by a competent registry of the country of which the fishing vessel bears the nationalityor by the registry under the Vietnamese Ministry of Agriculture and Rural Development. 4. A permit for use of radio frequency and radio transceivers, issued by a Vietnamese competent authority 5. Captain and chief engine diplomas and © VIETNAM LAW & LEGAL FORUM Issue nos 01-Q2IMay 2010 (Gong Bao nos 206-207iMay 8, 2010) OFFICIAL GAZETTE 47 certificates accredited by a Vietnamese competent authority. 6.Alist of crew membersandpeople working on board. 7. At least 1 person proficient in Vietnamese or English working on board the fishing vessel. Article 7. Re-grant and extension of permits 1. A foreign fishing vessel will be considered for re-grant of its permit in the following cases: aJThe granted permit is tom or ragged from use; bl The permit is lost; cI The fishing vessel is changed. 2. A foreignfishing vessel will be considered for extension of its permit if it fully meets the following conditions: af Not having violated Vietnam's laws. bl Its investment license or the fishery cooperation agreement remains valid. The contentsof permitextensioncomplywith the form providedin Appendixn to this Decree (not printed lterein}. Article S.Orderand proceduresfor thegrant, re-grant and extension of permits 1. A dossier of application for the first-time grant of a permit comprises: aJ An applicationfor the grant of a permit for the fishing vessel (made according to the form provided in Appendix III to this Decree - not printed herein); bl Notarized copies uf paper:> and documents specified in Clauses 1, 2, 3, 4 and 5,Article 6 of this Decree; clA listof crew membersand peopleworking on board the fishing vessel (with their fuJl names. addressesof permanentresidenceand posts)and [heir photos. 2. A dossier of application for the re-grant of a permit comprises: a/ An application for the re-grant of a permit (made according to the form provided in Appendix IV to thisDecree - notprintedherein); bl The granted permit (in case the permit is torn or ragged); cI The writtencertification of the permit loss (clearly stating the reason), made by the administration of the locality where the permit is lost (if the license is lost); dIAreporton the change of the fishingvessel or its operation (if any). 3. A dossier of application for the extension of a permit comprises: aI An application for the extension of the permit (made according to the form provided in Appendix V to this Decree - not printed herein); hi A copy of the granted permit; cl A notarized copy of the fishing vessel's technical safety certificate; dJ A report on the operation of the fishing vessel during the validity term of its granted penult; el The logbook (for vessels with fishing permits). 4. Organizations and individualsapplyingfor the grant, re-grant or extension of permits shall submitdossiers to agenciesdefinedin Article 11 of this Decree. Article 9. Cases in which permits are invalidated L The fishing vessel terminates its operation in Vietnam's sea areas before its permit expires. © VIETNAM LAW s LEGAL FORUM 48 OFFICIAL GAZETTE Issue nos 01-Q2IMay 2010 (Cong BEw nos 206-2071May 8, 2010) 2. The investment license or cooperation contract is suspended or cancelled. 3.The fishing vessel has its permit withdrawn. 4. The permit expires. 5. The fishing vessel is destroyed, sunk or rrussmg, Article 10. Cases in which permits are withdrawn 1. The permit is erased or modified. 2.The permit is used not for the fishing vessel for which it is granted. 3. The fishing vessel uses prohibited fishing methods or fails to comply with the provisions of its permit. 4. The fishing vessel or people on board the fishing vessel violate Vietnam's law or regulations of international organizations of which Vietnam is a member. Article 11. Competence to grant, re-grant. extend and withdraw permits 1. The Ministry of Agriculture and Rural Development is the agency competent to grant, re-grant, extend and withdraw permits of foreign fishing vessels operating in Vietnam's sea areas. 2.The srant, re-grant and extension of permits shall be carried out as follows: aJ The time limit for the grant of a permit is 10 working days after receiving a valid and complete dossier; bl The time limit for re-grant of a permit is 7 working days after receiving a valid and complete dossier; cl The time limit for extension of a permit is 3 working days after receiving a valid and complete dossier. Chapter 1lJ RIGHTS AND RESPONSIBILITIES OF OWNERS OF FOREIGN FISHING VESSELS Article 12. Rights of owners of foreign fishing vessels 1.To carry out fishery activities in Vietnam's sea areas according to their permits. 2. To be promptly notified of the weather conditions by specialized state agencies of Vietnam; to be provided with information relating to their fishery activities and guidance on Vietnam's law upon request. 3. To have their lawful rights and interests protected by the Vietnamese State in the course of currying out fishery activities in Vietnam. 4. To have other rights provided by Vietnam's law. Article 13. Responsibilities of owners of foreign fishing vessels 1.To fully pay charges and fees as prescribed and buy insurance for supervisors. 2. At least 7 days before their fishing vessels enter Vietnam's sea areas, to notify such in writing (by fax, e-mail or post) to the General Fisheries Office under the Vietnamese Ministry of Agriculture and Rural Development. Upon anival in Vietnam, to carry out entry procedures under regulations. 3.To carry along on board their fishing vessels the following papers (originals): aJThe fishery activity permit; bl The fishing vessel registration certificate; cl The fishing vessel technical safety certi ficate: © VIETNAM LAW & LEGAL FORUM Issue nos01·02lMay 2010 (Gong BaD nos 206·2071May 8, 2010) OFFICIAL GAZETTE 49 dJ The permit for use of radio frequency and transceivers. el The registerofcrewmembersand passports of crewmembers and people working on board the fishing vessel. 4. To make entries in logbooks and report on the operation of fishing vessels according to the following provisions: aJ Tomake reports on each voyage.for fishing vessels engaged in aquatic resource survey and exploration; b/ To make entries ill fi~hillg logbuoks (according to the form provided in Appendix VI to this Circular - not printed herein) and make reports on each voyage, for fishing vessels engaged in fishing activities; c/ To make reports 011 each voyage, fur fishing vessels engaged in technical training or technology transfer activities; dJ To make reports for each voyage. for fishing vessels engaged in the trading in. purchase or transportation of aquatic products. Reports and logbooks shall be presented by captains in either Vietnamese or English and he sent to the Ministry of Agriculture and Rural Development (the General Fisheries Office) within 3 days after (he vessel arrives at a Vietnamese port. 5. Toobserve all relevant lawsof Vietnam and treaties which Vietnam has signed or acceded to. 6. To receive and return supervisors: al To receive and return supervisors at designated places approved by the Ministry of Agriculture and Rural Development (the General Fisheries Office); bl To ensure working and living conditions for Vietnamesesupervisors likeofficerson board fishingvesselsand comply withtheir instructions under Article 17 of this Decree. 7. To submit to the inspection and control by control forces in Vietnam's sea areas under Clause 1, Article 22 of this Decree. 8. When meeting with incidents or accidents or being in distress, to send SOS messages according to regulations and immediately notify such to the concerned Vietnamese authority in the nearest place and notify the Ministry of Agricultureand Rural Development(the General Fisheries Office) and local border guards when the vessels call at Vietnamese fishing ports or wharves in all circumstances. 9. Owners of foreign fishing vessels engaged in fishing activities may only sell their products in Vietnam(unless an export contract is included in the approved cooperation projects). Article 14. Responsibilities of owners of foreign fishing vessels when the vessels terminate operation 1. When a foreign fishing vessel terminates its operation and leaves Vietnam's sea areas, its owner shall fulfill all obligations stated in the granteAl investment license, approved project or signed contract (unless otherwise agreed upon in the contract) and prescribed by other relevant laws of Vietnam. 2. In case a foreign fishing vessel terminates its operation before its permit expires, irs owner shall report such in writing to the permit-granting agency at least 7 working days in advance, Chapter IV ASHING VESSEL SUPERVISORS Article 15. Fishing vessel supervisors 1. To supervise foreign fishing vessels in: aJ Fishing activities: © VIETNAM LAW & LEGAL FORUM 50 OFFICIAL GAZETTE Issue nos 01·02IMay 2010 (Gong Bso nos 2fJ6.2071May 8, 2010) bl Aquatic resource survey and exploration; cl Fishery-related technical training and technology transfer. In case an officer of the Agriculture and Rural Development Ministry's marine product research agency currently works on board a foreign fishing vessel under an approved project or contract, appointment of a fishing vessel supervisor is not required. 2.Afishing vessel supervisor must satisfy the following conditions: at Being a public employee appointed by a state management agency; bl Having experience in and thorough knowledge about the fisheries law and activities which he/she is assigned to supervise; cl Being physically fit and having a good seafaring capacity; dJ Bei~ proficient in English or the language used on the foreign vessel. 3. Competence to appoint supervisors The Ministry of Agriculture and Rural Development (the General Fisheries Office) shall decide to appoint I or 2 supervisors to work on board each foreign fishing vessel under this Article. Arti~e 16. Responsibilities of supervisors 1. To supervise activities of. operation and the observance of Vietnam's law by, people and fishing vessels engaged in fishery activities in Vietnam's sea areas. 2.To fully and promptly report to the Ministry of Agriculture and Rural Development (tile General Fisheries Office) and competent authorities information relating to activities of foreign fishing vessels according to their assigned tasks. Article 17. Powers of supervisors 1. To request officers, crewrnembers and people working on board fishing vessels to strictly comply with Vietnam's law and the provisions of their permits. 2. To request captains to steer vessels to the nearest port or landing place, upon detecting serious violations of Vietnam's law committed by foreign people or fishing vessels. 3.To inspect and supervise all activities carried out on board vessels, including the operation of fish finders and communication devices. 4. To use foreign fishing vessels' communi cation devices for working purposes when necessary. Article 18. Interests of supervisors 1. To enjoy full insurance bought by owners of foreign fishing vessels during the period of working on board the vessels. 2. To have their working and living conditions on board foreign fishing vessels secured by the vessel owners like officers working on board fishing vessels. 3. To enjoy salaries, working-trip allowances, seafaring allowances and other entitlements (if any) provided by law. 4. To enjoy other allowance and remunera tions from cooperative partners, if so stated in the cooperation agreements, projects or contracts. Chapter V RESPONSIBILITIES OF STATE MANAGEMENTAGENCffiS Article 19. Responsibilities of the Ministry of Agriculture and Rural Development The Ministry of Agriculture and Rural © VIETNAM LAW & LEGAL FORUM Issue nos 01-o2lMay 2010 (Gong Baa nos 206-2071May 8,2010) OFFICIAL GAZETTE 51 Development shall assist the Government in uniformly managing fishery activities of foreign fishing vessels nationwide: 1. To manage fishery activities of foreign fishing vessels in Vietnam's sea areas under this Decree and relevant law of Vietnam. 2.To notifyrelatedmatters and send copiesof granted. re-granted or extendedpermitsofforeign fishing vesselsto the Ministryof National Defense (the Border Guard High Command and the Department of Marine Police), the Ministry of Public Security (the General Department of Security), the Ministry of Transport(the Vietnam Maritime Administration), the Ministry of Finance. the Ministry of Natural Resources and Environment and concerned provincial-level People'sCommittees forcoordinated management of operations of foreign fishing vessels. 3. To inspect, examine, and settle complaints and denunciations and handle violations according to its competence and law. Article 20. Responsibilities of ministriesand branches 1. The Ministry of Planning and Investment shall coordinate with the Ministry of Agriculture and Rural Development and provincial-level People's Committees in appraising and granting investment licenses to investment projects involving fishery activities of foreign fishing vessels in Vietnam's sea areas. 2. The Ministry of National Defense, the Ministry of Public Security. the Ministry of Transport. the Ministry of Natural Resourcesand Environment, the Ministry of Finance and other ministriesand branches. within the ambit of their functions, tasks and powers, shall: aI Coordinate with the Ministry ofAgriculture and Rural Development in performing the state management of fishery activities of foreign fishing vessels in Vietnam's sea areas; bl Inspect. examine and settlecomplaintsand denunciations and handle violations of taw according to their competence and law. Article 21. Responsibilities of provincial~ level People's Committees 1.Tocoordinatewith the MinistryofPlanning and Investment and the Ministry of Agricu.lt:un and Rural Development in appraising and granting investment licenses to investment projects involving activities of foreign f\Shing vessels in Vietnam's sea areas. 2. To approve in principle projects on cooperation with foreign parties in trading in, purchase and transportation of aquatic products in conformity with localandsectoralc£ve]opment plans. 3. To inspect, examine, and settle complaints and denunciations and handle viotauons of law according to their competence and law. Chapter VI EXAMINATION, CONTROL, HANDLING OF ADMINISTRATIVE VIOLATiONS AND SETTLEMENT OF COMPLAINTS AND DENUNCIATIONS Article 22. Examination and control of fishery activities of foreign fishing vessels in Vietnam's sea areas 1.Theforcesexamining andcontrolling fishety activities of foreign fishing vessels in Vietnam's seaareasinclude thefisheries inspectorate, marine police, border guard. waterway traffic police. customs and other competent forces. © VIETNAM LAW & LEGAL FORUM 52 OFFICIAL GAZETTE Issue nos 01.021May 2010 (Gong BaD nos 206-2071May 8, 2010) Theseforces shall examineandcontrol fishery activities of foreign fishing vessels in Vietnam's sea areas which are related to domains or sectors under their respective management according to Vietnam's law; handle administrative violations according to their competence defined in the Ordinance on Handling of Administrative Violations. and concurrently coordinate with concerned forces in performing their tasks. 2. While on duty, the Iorcesdefined ill Clause 1 of this Article must wear uniforms, badges, insignias andspecializedinspectorcardsaccording to law. Ships and boats engaged in examination and control operations at sea, must display the Vietnamese national flag, pennants and signs of specialized forces according to law. Article 23. Handling of administrative violations committed by foreign fishing vessels If the owner of a foreign fishing vessel with a permit commits violations of Vietnam's law when carrying out fishing activities in Vietnam's sea areas, he/she shall be sanctioned under the Government's Decree on sanctioning of administrative violations in the fisheries domain and other relevant laws of Vietnam. Upon detecting any of violations defined in Article 10 of this Decree, persons competent to handleadministrative violations shallimmediately seize the permit and vessel and notify such to the Ministry of Agriculture and Rural Development (the General Fisheries Office) for issuance of a decision to withdraw the permit, Article 24. Procedures for handling administrative violations, executing sanctioning decisions and applying measures to prevent administrative violations 1. The procedures for handlingadministrative violations comply with the Ordinance on Handling of Administrative Violations and relevant legal documents. 2. The application of measures to prevent adrninisuati ve violations and secure the handling of administrative violation and management of foreign violators.complies with the Ordinance on Handlingof AdministrativeViolationsand the Government's Decree on sanctioning of administrative violations in the fisheries domain. 3. Incasea foreign fishing vessel is temporarily seized fOT handling of administrativeviolations: atWithin24 hoursaftera vessel is temporarily seized. the force which seizes the vessel or receives it for investigation shall report the case to the Ministry of Foreign Affairs (the Consular Department), the Ministry ofPublic Security (the General Department of Security) and the Ministry of Agriculture and Rural Development (the General Fisheries Office) for coordinated handling and propose the expulsion of foreign violators when necessary; bl The owner of the fishing vessel shall bear all expenses for the preservation of the fishing vessel and the lodging and repatriation of violators during the time theyare kept in custody or managed in Vietnam. Article 25. Handlingof violationscommitted by persons competent to handle administrative violations Violations of this Decree committed by persons competent to handle administrative violations will be handled under the 2002 Ordinance on Handling of Administrative Violations and its guiding decree. Article 26. Complaints and denunciations 1. Individuals may lodge complaints and © VIETNAM LAW &LEGAL FORUM Issue nos 01·02/May 2010 (Gong eeo nos 206-207/May8, 2010; OFFICIAL GAZETTE denunciations about violations of this Decree according to the law on complaints and denunciations. 2.Competence,procedures and time limits for settlement of complaints and denunciations comply with the law on complaints and denunciations. Chapter VII IMPLEMENTATION PROVISIONS Article 27. Effect This Decree takes effect on June 1, 2010, and replaces the Government'sDecree No. 191/2004/ ND-CP of November 18,2004. on management of fishery activities of foreign fishing vessels in Vietnam's sea areas. Article 28. Organization of implementation Ministers, headsof ministerial-level agencies, heads of government-attached agencies and chairpersons of People's Committees of coastal provincesandcentrallyruncities shall implement this Decree. On behalfofthe Government Prime Minister NGUYEN TAN DUNG © VIETNAM LAW & LEGAL FORUM