DECREE
ON MANAGEMENT, USE AND OPERATION OF MARITIME INFRASTRUCTURE
|
THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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|
No.
43/2018/ND-CP
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Hanoi,
March 12, 2018
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DECREE
ON MANAGEMENT, USE AND OPERATION
OF MARITIME INFRASTRUCTURE
Pursuant
to Law on Government Organization dated June 19, 2015;
Pursuant
to Law on Management and Use of Public Property dated June 21, 2017;
Pursuant
to Maritime Code dated November 25, 2015;
At
the request of the Minister of Finance;
The
Government promulgates a Decree on management, use and operation of maritime
infrastructure.
Chapter I
GENERAL PROVISIONS
Article 1. Scope
1. This
Decree sets forth management, use and operation of maritime infrastructure
invested and managed by the state.
2. The
management, use and operation of maritime infrastructure invested by
organizations or individuals are not governed by this Decree.
Article 2. Regulated entities
1.
Maritime authorities.
2.
Authorities designated to manage maritime infrastructure (hereinafter referred
to as infrastructure supervisors).
3.
Agencies and enterprises designated to use and operate marine infrastructure
(hereinafter referred to as infrastructure operators).
4. Other
entities related to management, use and operation of maritime infrastructure.
Article 3. Rules for management, use and operation of maritime
infrastructure
1. Every
maritime infrastructure is handed over to eligible supervisors or operators as
per the law.
2. State
management of maritime infrastructure shall be consistent and present clear
decentralization, responsibilities of each regulatory body and responsibilities
for cooperation between regulatory bodies; and separation between roles of
regulatory bodies and business lines of enterprises.
3. The
maritime infrastructure shall be operated in conformity with market mechanism
and in an effective manner; the state encourages private sector involvement to
mobilize social resources to maintain, develop and operate the maritime
infrastructure.
4.
Physical maritime infrastructure and its value shall be reckoned up and
accounted for adequately, those at high risks of facing natural disasters,
conflagration and other force majeure events are eligible for risk management
through insurance and other instruments as per the law.
5. The
management, use and operation of maritime infrastructure must be undertaken
transparently; under supervision, inspection and audit; every violation against
property management and use shall be dealt with a timely and strict manner as
per the law.
Chapter II
MANAGEMENT, USE AND
OPERATION OF MARITIME INFRASTRUCTURE
Section 1: MANAGEMENT OF MARITIME INFRASTRUCTURE
Article 4: Maritime infrastructure
Maritime
infrastructure (including land area and water area associated with the
infrastructure), inclusive of:
1.
Seaport infrastructure:
a) Port
terminals (including waterfront of wharves), floating terminals;
b)
Portage areas, anchorage, storm shelters in port waters;
c)
Headquarters, facilities, warehouses, storage yards, buildings and other
auxiliary facilities;
d)
Traffic, communications, electricity and water system.
2.
Maritime safety infrastructure:
a)
Lighthouses and light stations connected to lighthouses;
b)
Floating beacons and floating beacon stations operating;
c)
Vessel Traffic Service (VTS);
d)
Breakwaters, sand breaks, flow-redirecting revetment, bank-protecting
revetments;
dd)
Navigable channels.
3.
Maritime telecommunications network infrastructure refers to assets,
structures, and equipment in service of Vietnam coastal communication system.
4.
Maritime infrastructure prescribed in Clause 1, Clause 2, Clause 3 of this
Article in conjunction with national defense and security shall be determined
according to law on protection of national importance works in conjunction with
national defense and security.
Article 5. Handover of maritime infrastructure
1.
Maritime infrastructure shall be handed over to infrastructure supervisors as
follows:
a)
Maritime infrastructure prescribed in Clause 1, Points c, d, and dd Clause 2
Article 4 of this Decree is handed over to infrastructure supervisors being
maritime authorities affiliated to the Ministry of Transport;
b)
Maritime infrastructure prescribed in Clause 3 Article 4 of this Decree is
handed over to coastal communication providers affiliated to the Ministry of
Transport in the form of investment of state capital in enterprises in
accordance with law on management and use of state capital invested in
enterprises;
c)
Maritime safety infrastructure prescribed in Points a and b Clause 2 Article 4
of this Decree is handed over to maritime safety providers affiliated to the
Ministry of Transport in the form of investment of state capital in enterprises
in accordance with law on management and use of state capital invested in
enterprises.
2. The
power to hand over maritime infrastructure prescribed in Point a Clause 1 of
this Article.
a) The
Prime Minister shall consider handing over maritime infrastructure in
conjunction with national defense and security or property formed from projects
subject to the Prime Minister’s decision to competent agencies at the request
of the Ministry of Transport and relevant agencies;
b) The
Minister of Transport shall consider handing over maritime infrastructure not
prescribed in Point a of this Clause to competent agencies.
3)
Request for management of maritime infrastructure prescribed in Point a Clause
1 of this Article includes:
a)
Request form of infrastructure supervisor: 1 original;
b) A
record of infrastructure classification or dossier of infrastructural
facilities being handed over and brought into operation: 1 original;
c) A
list of infrastructural facilities to be handed over (description, quantity,
state, input value, residual value): 1 original;
d) Other
documents (if any): 1 copy.
4.
Procedures for handing over maritime infrastructure prescribed in Point a Clause
1 of this Article:
a)
Within 12 months from the effective date of this Decree (in case of existing
maritime infrastructure) or 60 days from the date on which the maritime
infrastructure is brought into operation (in case of newly built or procured
maritime infrastructure), the Ministry of Transport shall direct infrastructure
supervisors to cooperate with entities which are managing or using
infrastructure in reviewing, classifying and valuing the facilities, and then
send a plan on handing over maritime infrastructure prescribed in Clause 3
hereof to Ministry of Transport. Funding for review and classification of
facilities shall be financed from the state budget as prescribed in law on
state budget;
b)
Within 30 days from the date on which a satisfactory application is received,
the Minister of Transport shall consider handing over maritime infrastructure
within its authority;
c)
Within 30 days from the date on which a satisfactory application is received,
the Ministry of Transport shall send requests for consultation together with
copies of the application provided in Clause 3 hereof to relevant agencies in
terms of the plan in question within authority of Prime Minister;
Within
30 days from the date on which a satisfactory application is received, the Ministry
of Transport and relevant agencies shall give consultations within their
competence in terms of the plan in question;
Within
30 days from the date on which all consultations are received, the Ministry of
Transport shall send a report on the plan in question (together with copies of
the application prescribed in Clause 3 hereof and consultations made by
relevant agencies) to the Prime Minister for consideration.
d) A
decision to hand over maritime infrastructure shall at least contain: Name of
infrastructure supervisor; a list of facilities to be handed over (description,
quantity, state, input value, and residual value); responsibilities for
implementation;
dd)
Within 30 days from the competent authority prescribed in Clause 2 of this
Article issues a decision, the Ministry of Transport shall entrust maritime
infrastructure as prescribed. The entrusting of facilities shall be recorded in
writing, using form No. 01 prescribed in Appendix thereto.
Article 6. Management of maritime infrastructure counted as
state capital portion of the enterprise
1. The
maritime infrastructure counted as state capital portion of the enterprise
shall be managed and operated in accordance with law on management and use of
state capital invested in enterprises, special law on maritime and relevant law
provisions.
2. The
Ministry of Transport shall direct infrastructure supervisors to cooperate with
maritime safety providers or coastal communication providers in revaluation of
infrastructural facilities prescribed in Point a, Point b Clause 2, Clause 3
Article 4 of this Decree, and then request the competent authority/person to
allocate or adjust capital to the enterprise in accordance with law on
management and use of state capital invested in enterprises.
The
revaluation of maritime infrastructure to determine its value counted as state
capital portion of the enterprise shall done in accordance with law on
management and use of state capital invested in enterprises, law on prices and
relevant law provisions.
Section 2: DOSSIER OF MANAGEMENT OR ACCOUNTING OF MARITIME
INFRASTRUCTURE
Article 7. Dossier of management of maritime infrastructure
1.
Dossier of management of maritime infrastructure includes:
a)
Documentation relevant to forming of and changes to maritime infrastructure as
prescribed in this Decree and relevant law provisions;
b)
Declarations and reports on management and operation of maritime infrastructure
prescribed in Article 28 of this Decree;
c)
Maritime infrastructure database prescribed in Article 29 of this Decree.
2.
Infrastructure supervisors shall:
a)
Prepare dossiers of infrastructural facilities within their scope of
management;
b)
Manage and maintain adequate dossiers of infrastructural facilities under their
management and send required reports to the Ministry of Transport and competent
authorities as prescribed in this Decree.
Article 8: Accounting of maritime infrastructure
1. Any
maritime infrastructure which is structurally-independent or a system combining
individual parts intended for performing one or certain functions is considered
as subject matter to be recorded.
If a
system is handed over to multiple supervisors, the subject matter to be
recorded is a part of infrastructure delivered to each supervisor.
2. An
infrastructure supervisor shall set up accounting books of maritime
infrastructure to be handed over in accordance with law on accounting.
3. Input
value and residual value of maritime infrastructure shall be determined
according to the following rules:
a) In
case of maritime infrastructure being operated before effective date of this
Decree: If the maritime infrastructure’s input value and residual value are
known, such value shall be recorded in accounting books; if the maritime
infrastructure’s costs and residual value remain unknown, the conventional
price based to determine its input value shall be recorded in accounting books;
the conventional price shall determined by the Ministry of Transport;
b) In
case of maritime infrastructure which is brought into operation from effective
date of this Decree, its value determined in procurement or investment shall be
recorded in accounting books as prescribed;
c) If
the maritime infrastructure is newly built and brought into operation but the
final accounts have not been approved by competent authority, the provisional
input value shall be recorded in accounting books. The provisional input value,
in this case, shall be chosen according to the order of precedence below:
Proposed value in the final accounts; value stated in the taking-over A-B; estimated
value of the approved project. When the final accounts are approved, the
accounting authority shall adjust the above value in accordance with law on
accounting;
d) If
the maritime infrastructure, during the operation period, is upgraded or
expanded according to a project approved by competent authority, an increase in
value shall be recorded.
4. The
Ministry of Finance shall take charge and cooperate with the Ministry of
Transport in stipulating accounting regulations and calculation of depreciation
of maritime infrastructure.
Section 3: MAINTENANCE OF MARITIME INFRASTRUCTURE
Article 9. Maintenance of maritime infrastructure
1.
Maritime infrastructure must maintained in accordance with this Decree and
relevant regulations and in compliance with prescribed procedures, plan and
standards to keep it in good conditions for ordinary and safe operation.
2.
Methods of maintenance of maritime infrastructure:
a)
Performance-based maintenance:
Performance-based
maintenance refers to maintenance carried out according to pre-determined
quality standards, in a specific term with certain amount of money as specified
in the contract.
The
infrastructure supervisor shall determine the fixed price of maintenance for
every facility under its management; and then submit it to competent authority
for approval. The fixed price of maintenance shall be determined according to
economic and technical norm approach or average cost approach in the last 3
consecutive years plus (+) inflation (if any) or a combination of above approaches.
The
Ministry of Transport shall stipulate criteria for supervision and inspection
of maintenance of maritime infrastructure according to the quality.
b)
Quantity-based maintenance:
Quantity-based
maintenance refers to maintenance and payments made according to workload which
has been performed.
c)
Maintenance and product exploitation shall be done in accordance with Article
11 of this Decree.
3. The
Ministry of Transport shall decide or designate competent authorities to decide
which maintenance approach is used as prescribed in Point a, Point b Clause 2
of this Article associated with maintenance of maritime infrastructure
prescribed in this Decree, law on quality management and construction
maintenance, and special law on maritime to ensure economical and effective
factors.
4. The
selection of a maritime infrastructure maintenance provider according to
approaches prescribed in Clause 2 of this Article shall be done in accordance
with law on bidding, special law on maritime and relevant law provisions.
In case
of maintenance of maritime infrastructure prescribed in Points a, b and c
Clause 5 of this Article, maintenance providers shall be selected in accordance
with relevant regulations and laws.
5.
Funding for maintenance of maritime infrastructure shall be allocated from
state budget in accordance with law on state budget and other sources of funds
as per the law; unless:
a) The
maritime infrastructure has been counted as state capital portion of the
enterprise;
b) The
right to operate the maritime infrastructure has been leased to an operator
which is obliged to carry out the maintenance as specified in the contract;
c) The
right to operate the maritime infrastructure has been transferred, for a
specific term, to the transferee which is obliged to carry out the maintenance
as specified in the contract.
Article 10. State budgetary estimate of expenditures on
maintenance of maritime infrastructure
1.
Procedures for preparation and giving of annual budgetary estimates of
expenditures on maintenance of maritime infrastructure shall be done in
accordance with law on state budget:
a)
According to technical standards, economic and technical norms, unit prices,
workload to be performed and a maintenance plan that is approved by competent
authority, the infrastructure supervisor shall prepare a budgetary estimate of
expenditures on maintenance of maritime infrastructure (except for the case
prescribed in Points a, b and c Clause 5 Article 9 of this Decree), and then
submit it for the Ministry of Transport’s consideration in accordance with law
on state budget;
b) On
the basis of decision to give aforesaid estimate made by the competent
authority, the Ministry of Transport shall give such estimate to the
infrastructure supervisor;
c) The
infrastructure supervisor shall initiate the state budgetary estimate of
expenditures on maintenance of maritime infrastructure as per the law.
2.
Procedures for preparation and giving of 3-year or 5-year estimates of
expenditures on maintenance of maritime infrastructure shall be done in
accordance with law on 3-year and 5-year financial plans.
Article 11. Maintenance and exploitation of product
1.
Maintenance and exploitation of product means the state designates a
maintenance provider to dredge and repair navigable channels in combination of
exploitation of product to pay maintenance costs. This maintenance approach
applies to the case of dredging and repairing navigable channels with presence
of exploited products.
2. The
maintenance and exploitation of product must be in form of a project which is
executed in accordance with law on public investment and law on bidding.
3.
Funding for maintenance of navigable channels and value of exploited products
are determined as follows:
a)
Funding for maintenance of navigable channels shall be determined and allocated
in accordance with law on public investment, law on government budget and other
relevant provisions;
b) The
exploited products shall be valued according to their weight (reserves) and
prices set by the People's Committee of province as per the law; excluding
charges for granting mineral extraction right, taxes, fees and charges payable
in accordance with law on taxes, fees and charges.
4.
Funding for maintenance of navigable channels and value of exploited products
prescribed in Clause 3 of this Article shall be adjusted in the event a
competent authority:
a)
Adjust scope and design of the navigable channels indicated in the plan
approved by the competent authority;
b)
Adjust weight (reserves) of exploited products as compared with those
determined by competent authority.
5. Price
of contract for maintenance and exploitation of product comprises difference
between funding for maintenance of navigable channels and value of exploited
products according to the contract and adjusted value prescribed in Clause 4 of
this Article (if any). The price of contract for maintenance and exploitation
of product shall be paid as follows:
a) If
the funding for maintenance of navigable channels is less than the value of
exploited products, the maintenance provider must pay the difference amount to
the state budget;
b) If
the funding for maintenance of navigable channels is greater than the value of
exploited products, the state must pay the difference amount to the maintenance
provider. The above-mentioned difference shall be financed from the funding for
maintenance of maritime infrastructure of the realized year (if it is has been
allocated) or included in plan and estimate of maintenance of maritime
infrastructure in the subsequent year in accordance with law on state budget.
6.
Matters prescribed in Clauses 3, 4 and 5 of this Article shall be stated in
bidding documents, economic contract and Appendices of the contract between
contracting parties (if any).
7. The
power and procedures for maintenance in forms of dredging and repairing
navigable channels and exploitation of product; criteria for supervision and
inspection of navigable channels which are dredged and repaired and other
relevant matters as prescribed by the Government on dredging management in
seaport waters, inland waterways and relevant law provisions.
Section 4: OPERATION OF MARITIME INFRASTRUCTURE
Article 12. Operation methods and revenue sources from
maritime infrastructure
1. The
operation of maritime infrastructure shall be carried out according to
following methods:
a)
Designating the infrastructure supervisor to operate the maritime
infrastructure directly;
b)
Maritime infrastructure lease;
c)
Maritime infrastructure concession for a specific term.
2.
Revenue sources from maritime infrastructure:
a) Fees
and charges in compliance with law on fees and charges;
b)
Revenue earned from using price or services price as per the law;
c)
Revenue earned from maritime infrastructure lease or concession for a specific
term as prescribed in this Decree.
3. In
case of maritime infrastructure serving the public interests that not applying
any operation method prescribed in Clause 1, Clause 2 of this Article, the
infrastructure supervisor shall manage and use it as prescribed; it is not
required to prepare an operation scheme and submit it for competent authority’s
approval as prescribed in this Section. The Minister of Transport shall
determine a list of maritime infrastructure serving public interests not
applying any operation method prescribed in Clause 1 and Clause 2 of this
Article in consideration of the infrastructure supervisor’s request.
Article 13. Infrastructure supervisor operating the maritime
infrastructure directly
1. The
infrastructure supervisor operates the maritime infrastructure directly in any
of the following cases:
a) The
maritime infrastructure is related to national security;
b) The
directly-operating method proved more effective than the method prescribed in
Points b and c Clause 1 Article 12 of this Decree;
c) No
maintenance provider registers any method prescribed in Points b and c Clause 1
Article 12 of this Decree.
2. The
power to approve operation scheme:
a) The
Prime Minister shall consider approving operation schemes in conjunction with
national defense and security or property formed from projects subject to the
Prime Minister’s decision to competent authorities at the request of the
Ministry of Transport and relevant agencies;
b) The
Minister of Transport shall consider approving operation schemes not prescribed
in Point a of this Clause to competent authorities.
3.
Request for approving operation scheme includes:
a) An
request form of infrastructure supervisor: 1 original;
b) An
operation scheme (using Form No. 07 of Appendix thereto): 1 original;
c) Other
documents (if any): 1 copy.
4.
Preparation and approval for operation scheme:
a) The
infrastructure supervisor shall prepare and send an request for operating
maritime infrastructure as prescribed in Clause 3 of this Article to the
Ministry of Transport;
b)
Within 30 days, from the date on which a satisfactory application is received,
the Minister of Transport shall consider approving the operation scheme within
its authority or providing explanation in writing if the application is
refused;
c)
Within 30 days from the date on which a satisfactory application is received,
the Ministry of Transport shall send requests for consultation together with
copies of the application provided in Clause 3 hereof to the Ministry of
Finance and relevant agencies in terms of the maritime infrastructure within
authority of Prime Minister.
Within
30 days from the date on which a satisfactory application is received, the
Ministry of Transport, the Ministry of Finance and relevant agencies shall give
opinions within their competence in terms of the scheme in question;
Within
30 days from the date on which all consultations are received, the Ministry of
Transport shall send a report on the plan in question (together with copies of
the application prescribed in Clause 3 hereof and consultations made by
relevant agencies) to the Prime Minister; the Prime Minister shall then
consider approving the scheme in question and provide guidance if the
application is refused.
5.
According to the operation scheme approved by competent authority, the infrastructure
supervisor shall operate the maritime infrastructure as per the law.
Article 14. Maritime infrastructure lease
1.
Maritime infrastructure lease means the state enters into an agreement with an
maritime infrastructure operator to assign the right to operate maritime
infrastructure for a given period to receive a fixed sum of money.
2. The
power to approve maritime infrastructure lease scheme:
a) The
Prime Minister shall consider approving maritime infrastructure lease schemes
in conjunction with national defense and security or property formed from
projects subject to the Prime Minister’s decision to competent authorities at
the request of the Ministry of Transport and relevant agencies;
b) The
Minister of Transport shall consider approving maritime infrastructure lease
schemes not prescribed in Point a of this Clause with consultation of the
Ministry of Finance and relevant agencies.
3.
Request for approving maritime infrastructure lease scheme includes:
a)
Request form for approving maritime infrastructure lease scheme: 1 original;
b) A
maritime infrastructure lease scheme (using Form No. 07 of Appendix thereto); 1
original;
c) Other
documents (if any): 1 copy.
4.
Preparation of and approval for maritime infrastructure lease scheme.
a) The
infrastructure supervisor shall prepare and send an request for maritime
infrastructure lease as prescribed in Clause 3 of this Article to the Ministry
of Transport;
b)
Within 30 days from the date on which a satisfactory application is received,
the Ministry of Transport shall send requests for consultation together with
copies of the application provided in Clause 3 hereof to relevant agencies in
terms of the maritime infrastructure lease scheme;
c)
Within 30 days, from the date on which satisfactory application is received,
the Ministry of Finance and relevant agencies shall raise opinions: whether the
application is adequate and valid, whether the scheme is deemed essential and
appropriate to the operator, laws and regulations on management an use of
public property, special law and relevant law provisions; whether the basis and
method for valuation of leasing right to operate maritime infrastructure is
suitable; and matters in the scheme that need modifications;
d)
Within 30 days, from receiving consultations from the Ministry of Finance and
relevant agencies, the Ministry of Transport shall direct the infrastructure
supervisor to complete the application;
dd) The
Minister of Transport shall consider approving the maritime infrastructure
lease scheme within its authority or providing explanation in writing if the
application is refused;
e) The
Minister of Transport shall send a report on the plan in question (together
with copies of the application prescribed in Clause 3 hereof and consultations
made by relevant agencies) to the Prime Minister; the Prime Minister shall then
consider approving the scheme in question and provide guidance if the
application is refused.
5.
According to the maritime infrastructure lease scheme approved by competent
authority prescribed in Clause 2 of this Article, the Ministry of Transport
shall direct the infrastructure supervisor to hold an auction to choose the
maritime infrastructure operator as prescribed in law on auction and enter into
a lease contract as per the law. The auction participants must meet conditions
for qualifications in maritime infrastructure business in accordance with
special law on maritime and relevant law provisions.
6. The
lease contract shall at least contain:
a)
Details of lessor;
b)
Details of lessee;
c) A list
of infrastructural facilities to be leased;
d) Lease
term; lease price; payment method and period; maintenance responsibility and
other necessities;
dd)
Rights and obligations of parties;
e)
Responsibilities for contract performance.
7. The
lessee of right to operate maritime infrastructure has rights to:
a)
Operate maritime infrastructure in accordance with laws and regulations and the
contract;
b)
Decide methods deemed suitable for operating maritime infrastructure in an
effective manner;
c)
Charge using price or service price as per the law and according to the
contract;
d) have
its rights and legitimate interests protected by the state; file a claim or
lawsuit as per the law;
dd)
Perform other rights of the lessee as per the law.
8. The
lessee of right to operate maritime infrastructure has obligations to:
a)
Preserve the leased infrastructure (including land and water surface); prevent
loss and encroachment and other violations as per the law;
b) Use
the leased infrastructure with proper purposes; refrain from transferring,
selling, giving, mortgaging it, or contributing it as capital;
c)
Maintain the collateral as specified in the contract;
d) Pay
the rent fully and on schedule as specified in the contract; if the lessee
fails to make payment or make full payment when it is due under the contract,
it must pay a sum of late payment interest in compliance with law on tax
administration. The infrastructure supervisor shall send a report enclosed with
a copy or contract and payment document (if any) to the Department of Taxation
(of province where the property is located) for consideration; the Department
of Taxation shall then give notice of late payment interest amount in
accordance with law on tax administration;
dd)
Facilitate the inspection and supervision of the lessor and, in cooperation
with the lessor, deal with difficulties arising;
e) Hand
over the maritime infrastructure upon expiry of the contract and other cases
prescribed in Clause 9 hereof;
g)
Notify the infrastructure supervisor of the state of the maritime
infrastructure on a regular or irregular basis as specified in the contract to
ensure that the maritime transport operation keeps safe and smooth;
h)
Fulfill other obligations of the lessee as per the law and under the contract.
9. During
the lease term, if the maritime infrastructure operator voluntarily returns the
property, or breaks the terms of contract, or the state deemed necessary to
revoke it for national defense and security, national interests, public
interests, actions against parties’ rights and obligations (if any) shall be
taken in accordance with the contract, civil law and relevant law provisions.
Article 15. Maritime infrastructure concession for a specific
term
1.
Maritime infrastructure concession for a specific term means the state enters
into an agreement with an enterprise to assign the right to operate maritime
infrastructure for a given period associated with investment in upgrade and
extension of existing maritime infrastructure according to a plan approved by
the competent authority to receive a fixed sum of money.
2. The
Prime Minister shall consider approving maritime infrastructure concession
schemes in conjunction with national defense and security or property formed
from projects subject to the Prime Minister’s decision to competent authorities
at the request of the Ministry of Transport and relevant agencies.
3. The
maritime infrastructure concession for a specific term shall be done through
auctions. Criteria for selecting auction participants:
a) Their
qualifications in maritime infrastructure investment and business in accordance
with special law on maritime and relevant law provisions;
b)
Financial capacity to execute the project in accordance with law on investment.
4. The
specific transfer term shall be determined in every transfer contract but not
exceeding 50 years.
5. A
request for approving maritime infrastructure concession scheme includes:
a) A
request form for maritime infrastructure concession: 1 original;
b) A
scheme for transferring right to operate maritime infrastructure (using Form
No. 07 of Appendix thereto); 1 original;
c) Other
documents (if any): 1 copy.
6.
Preparation of and approval for request for approving maritime infrastructure
concession scheme:
a) The
infrastructure supervisor shall prepare and send an request for transferring
maritime infrastructure as prescribed in Clause 5 of this Article to the
Ministry of Transport;
b)
Within 30 days from the date on which a satisfactory application is received,
the Ministry of Transport shall send requests for consultation together with
copies of the application provided in Clause 5 hereof to relevant agencies in
terms of the maritime infrastructure concession scheme;
c)
Within 30 days, from the date on which satisfactory application is received,
the Ministry of Finance and relevant agencies shall raise opinions about:
whether the application is adequate and valid, whether the scheme is deemed
essential and appropriate to the operator, laws and regulations on management
an use of public property, special law and relevant law provisions; whether the
basis and method for valuation of transferring right to operate maritime
infrastructure is suitable; and matters in the scheme that need modifications;
d)
Within 30 days, from receiving consultations from the Ministry of Finance and
relevant agencies, the Ministry of Transport shall direct the infrastructure
supervisor to complete the application; The Minister of Transport shall send a
report on the scheme in question (together with copies of the application
prescribed in Clause 5 hereof and consultations made by relevant agencies) to
the Prime Minister; the Prime Minister shall then consider approving the scheme
in question and provide guidance if the application is refused;
dd)
According to the scheme for transferring right to operate maritime
infrastructure approved by the Prime Minister prescribed in Clause 3 of this
Article, the Ministry of Transport shall direct the infrastructure supervisor
to hold an auction to choose the maritime infrastructure operator as prescribed
in Clause 3 of this Article and enter into a concession contract as per the
law.
7. The
concession contract shall at least contain:
a)
Details of transferor;
b)
Details of transferee;
c) A
list of infrastructural facilities to be conceded;
d)
Transfer term; price; payment method and period; sections to be invested or
upgraded and other necessities;
dd)
Rights and obligations of parties;
e)
Responsibilities for contract performance.
8.
Within 90 days, from the date on which the contract is signed, the transferee
shall pay a sum of concession price to the infrastructure supervisor. The
infrastructure supervisor shall pay a sum of concession price to an escrow
account within 3 working days from the date on which the concession payment is received.
Upon
expiry of the aforesaid time limit in this Clause, if the transferee fails to
pay or pay fully the sum under the contract, the infrastructure supervisor
shall send a report enclosed with a copy or contract and payment document (if
any) to the Department of Taxation (of province where the property is located)
for consideration; the Department of Taxation shall then give notice of late
payment interest amount in accordance with law on tax administration.
Deadline
for payment and regulations on payment of late payment interest shall be
specified in the Regulation on auctions and the concession contract.
9. The
transferee has rights to:
a) Use
and operate maritime infrastructure under the contract;
b)
Charge using price or service price as per the law and according to the
contract;
c) Enjoy
incentive policies, investment incentives as prescribed in law on investment
and relevant provisions;
d) Use
property rights and conceded property to contribute as capital as per the law;
dd) File
complaints or lawsuits as per the law if its rights and interests are
infringed.
10. The
transferee has obligations to:
a)
Upgrade and extend the project as planned, on schedule and in good quality;
maintain the infrastructure in accordance with the contract;
b)
Notify the infrastructure supervisor of the state of infrastructure on a
regular or irregular basis to ensure that the maritime transport operation
keeps safe and smooth.
c) Take
legal responsibility for any breach of the contract.
Article 16. Maritime infrastructure rent and maritime
infrastructure concession price
1.
Maritime infrastructure rent or maritime infrastructure concession price means
a sum of money that a lessee or a transferee must pay to the state to operate
the maritime infrastructure under the contract.
2. The
maritime infrastructure rent includes fixed price and adjustable price.
Starting
rent of facilities, warehouses, storage yards, buildings or auxiliary
facilities shall be determined in conformity with market rents of the like-kind
property or property that meets the same technical standards and quality
requirements when the property is leased and fit for lease purposes.
3. The
starting price of maritime infrastructure concession auction shall be
determined as follows:
a) Fixed
price is determined according to depreciation of property, principal and
interests (if any), costs incurred when managing and operating the property;
b)
Adjustable price is determined according to a percentage of annual revenue
earned from operation of the maritime infrastructure;
c) The
authority competent to approve the lease scheme shall choose the starting price
either the fixed price or adjustable price according the rules that the fixed
price is preferred when factors considered to determine fixed price are
sufficient; in particular: If fixed price is used, the adjustable price remains
unchanged; if the adjustable price is used, the fixed price remains unchanged.
4. The
starting price of maritime infrastructure concession in the auction is
determined according to residual value of the property at the concession time
according to revaluation, remaining depreciation time, additional investment
value, estimated expenses and revenues from the operation of maritime
infrastructure during the concession time.
5. The
Minister of Transport shall consider deciding the starting price of maritime
infrastructure lease, starting price of maritime infrastructure concession as
prescribed in Clauses 2, 3 and 4 of this Article.
6. In
case of maritime infrastructure associated with land and water surface not
intended for business, the price of maritime infrastructure lease or concession
is not inclusive of land rents or water surface rents.
In case
of maritime infrastructure associated with land and water surface intended for
business, the price of maritime infrastructure lease or concession is not
inclusive of land rents or water surface rents.
7. The
Ministry of Finance shall provide guidelines for this Article.
Article 17. Operation of land and water surface resources to
establish funds for development of maritime infrastructure
1. The
operation of land and water surface resources to establish funds for
development of maritime infrastructure shall be carried out in accordance with
Article 118 of Law on Management and Use of Public Property and legislation on
land.
2. The
infrastructure supervisor shall prepare and send a scheme for operating land
and water surface to the Ministry of Transport, then the Ministry of Transport
shall consult with the Ministry of Finance, relevant agencies and the People's
Committee of province (where the land is located), and send the final scheme to
the Prime Minister for consideration.
3.
Contents of the scheme:
a) Bases
and the necessity of scheme;
b) Area
of land or water surface to be operated;
c)
Methods for operating land or water surface;
d) Total
investment in maritime infrastructure construction;
dd)
Estimated proceeds from operation of land and water surface resources;
e) Other
information about operation of land and water surface resources;
g) Responsibilities
for scheme execution.
Article 18. Maritime-related fees
1.
Schedules of maritime-related fees shall be made in accordance with laws and
regulations on fees.
2.
Maritime-related fees shall be collected, paid and managed in accordance with
laws and regulations on fees and state budget and relevant law provisions.
3. The
state shall empower maritime authorities to collect maritime-related fees.
Article 19. Management and use of proceeds from operation of
maritime infrastructure and land and water surface resources to establish funds
for development of maritime infrastructure
1. If
the infrastructure supervisor operates the maritime infrastructure directly as
prescribed in Article 13 hereof:
a) The
proceeds from operation of maritime infrastructure being fees prescribed in
Point a Clause 2 Article 12 hereof shall be managed and used in accordance with
regulations and laws on fees and state budget;
b) The
proceeds from operation of maritime infrastructure being revenues from
provision of services prescribed in Point b Clause 2 Article 12 hereof shall be
managed and used in accordance with financial mechanism applicable to the
infrastructure supervisor as prescribed.
2. If
maritime infrastructure or land and water surface resources are operated as
prescribed in Articles 14, 15 and 17 hereof:
a) The
proceeds from maritime infrastructure lease, maritime infrastructure concession
and proceeds from operation of land and water surface resources shall be
remitted to escrow accounts in the State Treasury held by:
The
agency empowered to manage property prescribed in Clause 1 Article 19 of Law on
Management and Use of Public Property, the operation scheme of which is subject
to the Prime Minister’s approval;
or the
Department of Finance (of province where the infrastructure supervisor is
headquartered), if operation scheme of property is subject to the Minister of
Transport’s approval.
b)
Expenses associated with operation of property or land and water surface
resources shall be estimated and submitted to the Ministry of Transport for
approval, including costs of :
Stocktaking,
determination of starting price, auction holding and other involved costs in
case of maritime infrastructure lease prescribed in Article 14 hereof;
Stocktaking,
determination of starting price, auction holding and other involved costs in
case of maritime infrastructure concession prescribed in Article 15 hereof;
Operation
of land and water surface resources to establish funds for development of
maritime infrastructure as prescribed in Article 17 hereof.
3. The
making of expense estimates; procedures for payment of expenses associated with
operation of maritime infrastructure and land and water surface resources shall
be carried out in accordance with Article 27 hereof.
4.
Quarterly, the escrow account holder shall remit the remaining sum of proceeds
from operation of property with paid costs to state budget in accordance with
laws and regulations on state budget.
5. The
proceeds from operation of maritime infrastructure and land and water surface
resources that have remitted to state budget shall be preferred to be allocated
in public projects, state budget expenditure estimates to build, upgrade, and
innovate maritime infrastructure in accordance with law on public investment,
state budget and relevant laws and regulations.
Section 5: ACTIONS AGAINST MARITIME INFRASTRUCTURE
Article 20. Actions against maritime infrastructure
1.
Withdrawal.
2.
Transfer.
3. Sale.
4. Using
maritime infrastructure for payment to an investor in executing a construction
project under a build-transfer contract (BT contract).
5.
Disposal.
6.
Action against maritime infrastructure in case of loss or damage.
7. Other
actions as per the law.
Article 21. Withdrawal of maritime infrastructure
1. A
maritime infrastructural facility shall be withdrawn in any of the following
cases:
a) Any
change to planning or decentralization takes place;
b) The
facility is handed over to improper entities or for improper purposes; it is
borrowed;
c) The
facility is sold, leased, given, mortgaged, contributed as capital, and used in
joint venture against the law;
d) The
facility is handed over but no longer need for use or is operated in an
ineffective manner;
dd)
Other cases as per the law.
2. The
power to withdraw:
a) The
Prime Minister shall consider withdrawing maritime infrastructure in
conjunction with national defense and security in consideration of request of
Minister of Transport;
b) The
Minister of Transport shall consider withdrawing maritime infrastructure which
are associated with land and water surface not prescribed in Point a of this
Clause in consideration of request of the Ministry of Transport;
c) The
Minister of Transport shall consider withdrawing maritime infrastructure not
prescribed in Points a and b of this Clause.
3. The
maritime infrastructure to be withdrawn shall be:
a)
transferred by competent authorities as prescribed in Article 22 hereof; or
b) sold
as prescribed in Article 23 hereof.
4. A
request for withdrawal of maritime infrastructure includes:
a) An
request form of infrastructure supervisor: 1 original;
b) A
request for withdrawal of the superior agency: 1 original;
c) A
list of maritime infrastructural facilities to be withdrawn (using Form No. 06
of Appendix thereto): 1 original;
d) Other
documents (if any): 1 copy;
5.
Procedures for withdrawal of maritime infrastructure in case of voluntary
return
a) The
infrastructure supervisor shall prepare and send a request for withdrawal of
maritime infrastructure as prescribed in Clause 4 of this Article to the
Ministry of Transport;
b)
Within 30 days from the date on which a valid request is received, the Minister
of Transport shall consider withdrawing or request the competent authority
(enclosed with copies of documentation prescribed in Clause 4 hereof)
prescribed in Clause 2 hereof to consider withdrawing the maritime
infrastructure;
c) The
decision on withdrawal shall at least contain: The infrastructure supervisor
which has the maritime infrastructure withdrawn; the authority which enforce
the withdrawal decision; a list of infrastructural facilities (description,
quantity, input value, and residual value); reasons for withdrawal; and
implementation;
d) Upon
receipt of the withdrawal decision, the decision enforcer shall receive
maritime infrastructure in question; plan the actions against the
infrastructure as prescribed in Clause 3 hereof; take planned actions which are
approved as prescribed; and preserve and protect it while awaiting actions.
6.
Procedures for withdrawal of maritime infrastructure in cases other than those
prescribed in Clause 5, Clause 7 of this Article:
a)
According to the request of an authority competent to inspect, audit, or impose
penalties for administrative violations or a regulatory agency, the Minister of
Transport shall consider withdrawing or request the competent authority
prescribed in Clause 2 hereof to consider withdrawing the infrastructure;
b)
Contents of the withdrawal decision and responsibilities of the infrastructure
supervisor and decision enforcer as prescribed in Point c, Point d Clause 5
hereof.
7. In
case of withdrawal of maritime infrastructure associated with land as
prescribed in laws and regulations on land, before a decision on appropriation
of land associated with maritime infrastructure, the competent authority shall
appropriate land with consultation from the Ministry of Finance. The Ministry
of Finance shall take charge and cooperate with involved agencies in providing
consultation of plan for appropriation of land associated with maritime
infrastructure.
The
request for consultation must specify reasons for land appropriation, land area
to be appropriated, proof that the land appropriation plan conforms to the
land-use planning approved by competent authorities and other contents deemed
necessary.
Article 22. Transfer of maritime infrastructure by competent
authorities
1. A
maritime infrastructural facility shall be transferred by competent authority
in any of the following cases:
a) Any
change to supervisor, decentralization, or property category;
b) The
facility is handed over but no longer need for use or is operated in an
ineffective manner;
c) Other
cases as prescribed.
2. The
power to decide transfer:
a) The
Prime Minister shall consider transferring maritime infrastructure from an
infrastructure supervisor affiliated to the Ministry of Transport to another
enterprise in form of investment of state capital in enterprises or maritime
infrastructure in conjunction with national defense and security at the request
of the Minister of Transport, the Minister of Finance and involved agencies;
b) The
Minister of Transport shall consider transferring maritime infrastructure not
prescribed in Point a of this Clause between the Ministry of Transport and
central and local ministries and agencies;
c) The
Minister of Transport shall consider transferring maritime infrastructure not
prescribed in Point a of this Clause between inferior agencies.
3. A
request for transfer of maritime infrastructure includes:
a) A
request for transferring maritime infrastructure made by infrastructure
supervisor: 1 original;
b) A
request for receipt of maritime infrastructure made by the recipient: 1
original;
c) A list of
infrastructural facilities to be transferred using form No. 06 in the Appendix
thereto (stating current purposes of use and expected purposes of use after
transfer if the transfer is associated with switch of functional use): 1
original; <0}
d)
Documentation in respect of switch of functional use (in case of transfer
associated with switch of functional use): 1 copy;
dd)
Other documents (if any): 1 copy.
4.
Procedures for transfer of maritime infrastructure
a) The
infrastructure supervisor shall prepare and send an request for transferring
maritime infrastructure as prescribed in Clause 3 of this Article to the
Ministry of Transport;
b)
Within 30 days from the date on which a valid application is received, the
Minister of Transport shall consider transferring the maritime infrastructure
within their competence or give a reply if the application is not valid; or
request the competent authority prescribed in Point a, Point b Clause 2 hereof
for consideration after receiving consultation from involved agencies or give a
reply if the application is not valid;
c) The
decision on transfer shall at least contain: The infrastructure supervisor;
infrastructure recipient; the list of infrastructural facilities to be
transferred (description, quantity, input value, residual value); reasons for
transfer; responsibilities for implementation;
d)
Within 30 days, from the date on which the decision on transfer is issued, the
infrastructure supervisor and the recipient shall: Hand over and receive the
maritime infrastructure using Form No. 01 in Appendix thereto; record increase
or decrease in property according to current accounting system; register
ownership or use as per the law (if any); make declaration of property
variation as prescribed in Article 28 hereof;
dd)
Reasonable costs associated with transfer and receipt of maritime
infrastructure shall be covered by the recipient as prescribed;
e) The
infrastructure value shall not be paid upon its transfer.
Article 23. Selling maritime infrastructure
1. A
maritime infrastructural facility shall be sold in any of the following cases:
a) It is
withdrawn as prescribed in Article 21 hereof and is no longer intended for use;
b) The
facility is handed over but no longer need for use or is operated in an
ineffective manner;
c) The
change in purpose of land use associated with change in functional use of
maritime infrastructure takes place according to the planning approved by
competent authority;
d) Other
cases as per the law.
2. The
power to sell maritime infrastructure
a) The
Prime Minister shall consider selling maritime infrastructure in conjunction
with national defense and security or property formed from projects subject to
the Prime Minister’s decision to competent authorities at the request of the
Ministry of Transport and relevant agencies;
b) The
Minister of Transport shall consider selling maritime infrastructure which are
associated with land and water surface not prescribed in Point a of this Clause
in consideration of request of the Ministry of Transport and involved agencies;
c) The
Minister of Transport shall consider selling maritime infrastructure not
prescribed in Points a and b of this Clause.
3. The
maritime infrastructure shall be sold in accordance with laws and regulations
on property auction.
4. A
request for sale of maritime infrastructure includes:
a) A
request for sale made by infrastructure supervisor: 1 original;
b) A
list of infrastructural facilities to be sold using Form No. 06 in Appendix
thereto (stating reasons for sale, current purposes of use): 1 original;
c)
Opinions of the specialized agency about land-use planning (in case of sale of
infrastructure associated with land or water surface): 1 copy;
d) Other
documents (if any): 1 copy.
5.
Procedures for sale of maritime infrastructure
a) The
infrastructure supervisor shall prepare and send a request for sale of maritime
infrastructure as prescribed in Clause 4 of this Article to the Ministry of
Transport;
b)
Within 30 days from the date on which a valid request is received, the Minister
of Transport shall consider selling the maritime infrastructure within their
competence or give a reply if the request is not valid; or request the
competent authority prescribed in Point a, Point b Clause 2 hereof for
consideration after receiving consultation from involved agencies or give a
reply if the application is not valid;
c) The
decision on sale shall at least contain: The infrastructure supervisor; the
list of facilities to be sold (description, quantity, input value, residual
value according to accounting records); methods of sale; management and use of
proceeds from the sale; responsibilities and deadline;
d)
According to the decision on sale, the infrastructure supervisor shall
determine the starting price and submit it to the competent authority for
approval, and then sell the infrastructure as prescribed;
dd)
Within 90 days, from the day on which the sale contract is signed, the purchaser
shall make payment to the infrastructure supervisor. The infrastructure
supervisor shall remit such a sum of purchase price to an escrow account within
3 working days from the date on which the payment is received.
Upon
expiry of deadline prescribed in this Point, if the purchaser fails to pay or
pay fully the purchase price under the contract, a late payment interest will
be charged as prescribed in laws and regulations on tax administration. In this
case, the infrastructure supervisor shall send a request enclosed with a copy
of property sale contract and payment documents (if any) to the Department of
Taxation (of province where the property is located) for consideration; the
Department of Taxation shall then give notice of late payment interest amount
in accordance with law on tax administration.
Deadline
for payment and regulations on payment of late payment interest shall be
specified in the Regulation on auctions and the sale contract.
e) The
infrastructure supervisor shall issue sale invoice for public property to the
purchaser in accordance with regulations and laws on management and use of
public property. The infrastructure shall be handed over at the place where it
is located after the purchaser makes the full payment;
g)
Within 30 days, from the completion date of property auction, the
infrastructure supervisor shall record the decrease in property and make a
declaration of property variation as prescribed in Article 28 hereof.
Article 24. Disposal of maritime infrastructure
1. A
maritime infrastructural facility shall be disposed of in any of the following
cases:
a) The
facility is damaged and cannot be used or the repair does not work;
b)
Demolishing old maritime infrastructure to build new maritime infrastructure
according to a project approved by the competent authority;
c) The
competent authority adjusts a planning that leads a part or the whole of
maritime infrastructure unusable, not as normal as its functions;
d) Other
cases as per the law.
2. The
Minister of Transport shall consider disposing of maritime infrastructure or
empower certain authorities to do so.
3. A
maritime infrastructural facility shall be disposed of in the form of
demolition or destruction. The withdrawn materials shall be:
a)
handed over to the agency acquiring the property to be disposed of to use them
in maintenance if the property is usable: The Minister of Transport shall
consider bringing withdrawn materials into operation; in this circumstance,
their value shall be recorded as increase in the estimate or maintenance
contract;
b)
transferred to other entities for management and operation. The Minister of
Transport shall consider transferring such materials to its inferior agencies;
the Minister of Finance shall consider transferring such materials to agencies
not affiliated to the Ministry of Transport at the request of the Ministry of
Transport, central ministries, or involved the People's Committee of province;
c) sold,
if they cannot be used<0}
4. A
request for disposal of maritime infrastructure includes:
a) A
request for disposal made by infrastructure supervisor: 1 original;
b) A
list of infrastructural facilities to be disposed of using Form No. 06 in
Appendix thereto (stating reasons for disposal): 1 original;
c) Other
documents (if any): 1 copy.
5. Procedures
for disposal of maritime infrastructure:
a) The
infrastructure supervisor shall prepare and send a request for disposal of
infrastructure prescribed in Clause 4 hereof to the competent authority
prescribed in Clause 2 hereof;
b)
Within 30 days, from the date on which a valid request is received, the
competent authority prescribed in Clause 2 hereof shall consider disposing of
the maritime infrastructure or give a reply if the request is invalid. If the
materials withdrawn from disposal are transferred to an agency not affiliated
to the Ministry of Transport, the Ministry of Transport shall request the
Ministry of Finance to consider within its authority,
c) The
decision on disposal shall at least contain: The infrastructure supervisor; a
list of infrastructural facilities to be disposed of (description, quantity,
input value, residual value, reasons for disposal); disposal method; actions
against withdrawn materials; management and use of proceeds from disposal;
responsibilities for implementation;
d)
According to the decision on disposal made by the competent authority, the
infrastructure supervisor shall demolish or destroy the infrastructure and take
actions against the withdrawn materials as prescribed. The withdrawn materials
shall be sold in accordance with Article 31 of Decree No. 151/2017/ND-CP dated
December 26, 2017 on guidelines for Law on Management and Use of Public
Property.
dd) From
the completion date of disposal, the infrastructure supervisor shall record the
decrease in property and make a declaration of property variation as prescribed
in Article 28 hereof and relevant law provisions.
Article 25. Action against maritime infrastructure in case of
loss or damage
1. The
maritime infrastructure is considered lost or damaged it is so due to natural
disasters or conflagration or other reasons.
2. The
Minister of Transport shall take an action against maritime infrastructure or
empower certain authorities to do so as prescribed in Clause 1 hereof.
3. A
request for action against maritime infrastructure in case of loss or damage
includes:
a) A
request form for actions against maritime infrastructure being lost or damaged:
1 original;
b) A
report confirming that the infrastructure is lost or damaged: 1 original;
c) A
list of maritime infrastructural facilities which are lost or damaged (using
Form No. 06 of Appendix thereto): 1 original;
d) Proof
of loss or damage (if any): 1 copy.
4.
Procedures for actions against maritime infrastructure in case of loss or
damage
a)
Within 30 days from the date on which the infrastructure is discover lost or
damaged, the infrastructure supervisor shall prepare and send a request
prescribed in Clause 3 hereof to the competent authority for consideration;
b)
Within 30 days, from the date on which a valid request is received, the
competent authority prescribed in Clause 2 hereof shall issue a decision on
actions against the maritime infrastructure in case of loss or damage;
c) The
decision on actions against the maritime infrastructure in case of loss or
damage shall at least contain: the infrastructure supervisor; a list of lost or
damaged infrastructural facilities accounted for as a decrease in accounting
record (description, quantity, input value, residual value according to
accounting records); reasons for loss or damage; responsibilities for
implementation.
5.
Within 30 days from the date on which the aforesaid decision is issued, the
infrastructure supervisor shall account for a decrease as prescribed in laws
and regulations on accounting; and make a declaration of property variation as
prescribed in Article 28 hereof.
6. The
state budget shall finance a source of fund for rectify the loss or damage to
ensure that the maritime operation keeps safe and smooth.
If a sum
of money is given as payment for damage or loss by an insurer or a relevant
entity, such sum of money shall be managed as prescribed in Clause 1 Article 27
hereof, less relevant costs (if any) which are remitted to state budget and
then allocated to a public project or state budget expenditure estimate to
build an alternative infrastructure as prescribed in law on state budget,
public investment and relevant law provisions.
Article 26. Management and use of maritime infrastructure in
form of public-private partnership (PPP)
1. The
building, management, and operation of maritime infrastructure in form of PPP
and transfer of maritime infrastructure under PPP shall be done in accordance
with Article 95, Article 96 of Law on Management and Use of Public Property.
2. If
the maritime infrastructure is used to pay to the investor when executing
construction project under the BT contract in accordance with Government's
corresponding regulations on public property paid to investors.
3. The
use of maritime infrastructure to participate in an investment project under
PPP, other than the contract prescribed in Clause 2 of this Article is provided
for as follows:
a) The
Prime Minister shall consider using existing maritime infrastructure to
participate in PPP investment projects at the request of the Minister of Transport,
opinions of the Ministry of Finance and involved agencies.
A Prime
Minister’s decision on use of existing property to participate in PPP
investment projects is the rationale for the competent authority to decide or
request other competent authorities to decide investment policies in accordance
with laws on investment and public investment;
b)
According to the Prime Minister’s decision on use of existing property to
participate in PPP investment projects, the PPP investment projects approved by
the competent authority and the equivalent contract, the infrastructure
supervisor shall hand over the property to the investor for project execution.
The handover shall be recorded in writing, using form No. 01 prescribed in
Appendix thereto.
Article 27. Management and use of proceeds from actions
against maritime infrastructure
1. All
of proceeds from actions against maritime infrastructure shall be remitted to
escrow accounts in State Treasury held by:
a) The
agency empowered to manage property prescribed in Clause 1 Article 19 of Law on
Management and Use of Public Property, the operation scheme of which is subject
to the Prime Minister’s approval or the Minister of Finance’s approval;
b) The
Department of Finance (of province where the supervisor is headquartered), if
the maritime infrastructure is subject to the Minister of Transport’s approval.
2. The
escrow account shall be monitored individually.
3. The
infrastructure supervisor shall make budget estimates of expenses associated
with actions against maritime infrastructure and send them to the Ministry of
Transport for approval. The expenses associated with actions against maritime
infrastructure include those incurred in:
a)
Stocktaking, drawing;
b)
Relocation, demolition, and destruction;
c)
Valuation and appraisal;
d) Sale
holding;
dd)
Other reasonable involved costs.
4.
Grounds for making of estimates prescribed in Clause 3 hereof:
a)
Specific expenditures, expenditures with quotas and polices prescribed by
competent authorities shall be estimated according to corresponding
regulations;
b)
Services relevant to actions against the maritime infrastructure shall be
performed in conformity with the equivalent contract concluded by the
infrastructure supervisor and the provider. The aforesaid provider shall be
selected as per the law;
c)
Amounts of expenditures not specified in Point a, Point b of this Clause shall
be determined by the agency empowered to sell or dispose of maritime
infrastructure in accordance with current financial management regulations and
that agency shall take responsibility for such a determination.
5.
Within 30 days, from the completion date of actions against maritime
infrastructure, the infrastructure supervisor shall prepare and send a request
for payment to the escrow account holder. The head shall take legal
responsibility for the accuracy of the proposed payment. The request consists
of:
a) A
request form made by the infrastructure supervisor (stating proceeds from
actions against maritime infrastructure, total costs thereof, details of
accounts receiving payment) enclosed with a detailed list of expenses: 1
original;
b) A
decision on action against maritime infrastructure: 1 copy;
c)
Documents proving expenses: Expenditure estimate; contracts for valuation,
auction, and demolition; invoices (if any): 1 copy.
6.
Within 30 days, from the date on which satisfactory application, the escrow
account holder shall allocate the sum of money to the agency empowered to sell
or dispose of maritime infrastructure for paying costs associated with actions
against maritime infrastructure.
7.
Quarterly, the escrow account holder shall remit the remaining sum of proceeds
from actions against maritime infrastructure with paid costs to state budget in
accordance with laws and regulations on state budget.
8. If
the proceeds from sale or disposal of maritime infrastructure are insufficient
to cover the costs, the deficit shall be financed from state budget estimated
fund managed by the infrastructure supervisor.
Section 6: REPORTING AND MARITIME INFRASTRUCTURE DATABASE
Article 28. Maritime infrastructure-related reports
1.
Maritime infrastructure shall be declared and updated in the maritime
infrastructure database for consistent management.
2. Forms
of maritime infrastructure declarations:
a)
Initial declaration in case of maritime infrastructure under management on the
effective date of this Decree;
b)
Additional declarations in case of new maritime infrastructure or maritime
infrastructure from which any change to infrastructure supervisor or itself
arises after the effective date of this Decree.
3. The
infrastructure supervisor shall make and send declarations using Form No. 02 in
Appendix thereto to the Ministry of Transport; the declarations bearing
confirmation of the Ministry of Transport shall be inserted to the maritime
infrastructure database. A declaration shall be submitted within 30 days, from
the date on which maritime infrastructure is received according to the decision
made by competent authority or any change to the supervisor or the maritime
infrastructure itself arises.
4.
Reports on management, use and operation of maritime infrastructure: The
infrastructure supervisor shall send annual reports on management, use and
operation of maritime infrastructure in the previous year and irregular reports
at the request of competent authorities.
5. Forms
of reports:
a)
Report on management of maritime infrastructure (using Form No. 03 of Appendix
thereto);
b)
Report on actions against maritime infrastructure (using Form No. 04 of
Appendix thereto);
c)
Report on operation of maritime infrastructure (using Form No. 05 of Appendix
thereto).
6.
Deadline for submitting annual reports on management, use and operation of
maritime infrastructure:
a) The
infrastructure supervisor shall send such a report to the Ministry of Transport
prior to February 28;
b) The
Ministry of Transport shall send a final report on management and use of
maritime infrastructure to the Ministry of Finance prior to March 15;
c) The
Ministry of Finance shall send a report on management and use of maritime
infrastructure nationwide to the Government for reporting to the National
Assembly at the request and announcing the public maritime infrastructure.
Article 29. Maritime infrastructure database
1. The
maritime infrastructure database is an integral part of the national database
in respect of public property, which is built and managed nationwide; its
contents are considered as lawful as those in hard copies.
2. The
Ministry of Transport shall take charge and cooperate with the Ministry of
Finance and involved agencies in building and managing maritime infrastructure
database provided meeting the following requirements:
a) In
accordance with Vietnam electronic government architectural framework, in
conformity with national database technical standards, technical regulations
and standards for information technology, information safety and security and
economic and technical norms;
b)
Ensure interoperability, the ability to integrate, and connect to the national
database of public property; ensure information sharing and extensibility of
data fields in system design and application software.
3. The
Ministry of Transport shall direct the infrastructure supervisor to make and
send declarations and insert them to the maritime infrastructure database as
prescribed.
Chapter III
IMPLEMENTATION
Article 30. Implementation
1.
Responsibilities of the Ministry of Transport
a) Take
charge for promulgating and issuing regulations on maintenance of maritime
infrastructure;
b)
Direct and provide guidelines for making of lists of maritime infrastructural
facilities for the purposes of accounting, depreciation determination,
reporting, and building of the maritime infrastructure database;
c) Take
charge and cooperate with the Ministry of Finance in building maritime
infrastructure database nationwide to integrate it into the national database
of public property; send reports on management, use, and operation of maritime
infrastructure in accordance with law on management and use of public property
and at the request of competent authorities;
d)
Cooperate with the Ministry of Finance in providing guidelines for
determination of starting price for auction of maritime infrastructure
operation in form of lease or concession;
dd)
Perform other duties and rights as prescribed in this Decree.
2.
Responsibilities of the Ministry of Finance:
a)
Stipulate accounting regulations on maritime infrastructure;
b)
Stipulate regulations on management and determination of maritime
infrastructure depreciation;
c)
Provide guidelines for determination of starting price for auction of maritime
infrastructure operation in form of lease or concession;
d) Take
charge and cooperate with the Ministry of Transport in provide guidelines for
integrating maritime infrastructure database into national database of public
property;
dd)
Perform other duties and rights as prescribed in this Decree.
3.
Ministries, central ministries and People's Committees of provinces shall
cooperate with the Ministry of Transport and the Ministry of Finance in managing,
using and operating maritime infrastructure as prescribed in this Decree.
Article 31. Transitional regulations
1.
Within 12 months from the effective date of this Decree, the Ministry of
Transport shall direct infrastructure supervisors prescribed in Clause 2
Article 2 of this Decree to cooperate with relevant agencies in reviewing,
classifying, and valuing existing maritime infrastructure for the purposes of
management, use and operation as prescribed in this Decree.
While
the reviewing, classification, making, and approval for the plans for
management of maritime infrastructure are in progress, the Ministry of
Transport shall direct relevant agencies to manage and use maritime
infrastructure in accordance with law on public property, special law on
maritime and relevant law provisions, ensure that the maritime operation keeps
safe and smooth.
2.
Contracts for operation of maritime infrastructure signed by competent
authorities before effective date of this Decree shall keep being executed
until their expiry dates. All revisions to contracts made from the effective
date of this Decree shall be conformable to this Decree.
3. Tasks
stated in a document issued by a competent authority determining actions
against maritime infrastructure before effective date of this Decree shall keep
being performed; tasks remain unperformed until effective date of this Decree
and management and use of proceeds from actions against the maritime
infrastructure shall be done in accordance with this Decree.
4. In
case of other state-funded maritime infrastructure under management of a
ministry (other than the Ministry of Transport), central ministry, or local
government, the corresponding ministry, central ministry, or the People's
Committee of province shall request the Ministry of Finance to cooperate with
the Ministry of Transport to report on management and use of maritime
infrastructure to the Prime Minister in accordance with this Decree.
Article 32. Entry in force
1. This
Decree comes into force as of March 12, 2018.
2. Section
5 of Government's Decree No. 58/2017/ND-CP dated May 10, 2017 on guidelines for
Vietnam Maritime Code in terms of management of maritime operation shall cease
to be effective from effective date of this Decree.
3.
Ministers, Heads of ministerial-level agencies, Heads of governmental agencies,
Chairpersons of provincial People's Committees and heads of involved agencies
shall implement this Decree./.
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Xuan Phuc
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IF YOU HAVE ANY CONCERN, PLEASE CONTACT US THROUGH THE LEGAL CONSULTANT SWITCHBOARD 19006248
Head Office: LK9-38, 5 General Soldier Residence, Tan Trieu, Thanh Tri Hanoi