Thông tư 80/2015/TT-BGTVT

CIRCULAR

PROVIDING FOR THE LICENSING RELATED TO CONSTRUCTION ACTIVITIES IN PROTECTION OF RAILWAY WORKS

Pursuant to the Law on Railway dated June 14, 2005;

Pursuant to Decree No. 14/2015/ND-CP dated February 13, 2015 by the Government providing guidance on the implementation of the Law of Railway;

Pursuant to the Decree No. 107/2012/ND-CP dated December 20, 2012 by the Government defining the functions, tasks, entitlements and organizational structure of the Ministry of Transport;

At the request of Director of Department of Transport Infrastructure and Director of Vietnam Railway Administration,

The Minister of Transport promulgates the Circular providing for the licensing related to construction activities in the protection of railway works.

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope

1. This Circular provides for the procedures for issuance of Licenses related to construction of works outside the railway infrastructure in the protection of national railways and specialized railways.

2. This Circular does not apply to railroad crossings.

Article 2. Regulated entities

This Circular applies to any organizations and individual relevant to the issuance of Licenses related to construction of works outside the railway infrastructure in the protection of national railways and specialized railways.

Article 3. Interpretation of terms

In this Circular, these terms can be construed as follows:

1. Railway infrastructure includes railway works, railway protection scope and safe railway traffic corridors.

2. Railway works are construction works for railway traffic, including roads, bridges, culverts, tunnels, embankments, retaining walls, stations, drainage system, signal and information system, power system and other auxiliary works and equipment of railway.

3. Railway protection scope is the area surrounding the railway works used for preventing violations against the stability and duration of works and for the maintenance of railway works.

Article 4. Principle of licensing

1. The licensing must be in accordance with the detailed planning for railway shall be approved by a competent authority; conformable to technical regulations and standards and shall conform with law provisions on protection of railway works, ensuring the safety of the works, the safety of railway traffic, and environment protection.

2. Licenses shall be issued only for the new construction, temporary construction, renovation and upgrade of works outside the required railway infrastructure in the railway protection scope.

Article 5. Works eligible for the License

1. The following works are eligible for the License:

a) New constructed works: works serving National defense and security; bridge, overpass, tunnel, culvert; irrigation, telecommunication and electricity works; water supply/drainage systems; petrol, oil and gas pipelines; works with special technical requirements that must be located inside the railway protection scope;

b) Works that are renovated or upgraded causing changes in shape, size, bearing structure of the works or relevant railway works;

c) Temporary works serving the construction.

2. Any works eligible for the License specified in clause 1 of this Article must be promptly relocated according to the request of competent regulatory agencies and must not request the compensation.

Chapter II

LICENSING RELATED TO CONSTRUCTION ACTIVITIES

Article 6. Application for the License

1. An application for the License shall include:

a) An application form for the License using the form in Appendix 1 enclosed with this Circular;

b) A decision on approval for the plan or a written investor authorization;

c) An approved technical design/construction drawing (enclosed with the Decision on approval); photos of current conditions (applicable to renovated/upgraded works).

2. Quantity of application: 01.

Article 7. Procedures for issuance of the License

1. Any organization/individual wishing to carry out the construction/renovation/upgrade of a work shall submit the application directly or via the postal system or other suitable means to a licensing agency specified in clause 1 and clause 2 Article 10 of this Circular.

2. Within 02 working days from the day on which the application is received, the licensing agency shall check the application; if the application is unsatisfactory, the application shall send the applicant a written notification and guidance for completion.

3. When the application has been completed, if necessary, the licensing agencies shall send the enquiry forms to relevant agencies/units, which are:

a) Enterprises managing, developing or trading railway infrastructure of works within the national railway protection scope;

b) Organizations managing and/or using specialized railways of works within specialized railway protection scope.

4. Within 05 working days from the day on which the enquiry forms are received, agencies and units specified in clause 3 of this Article shall make written response; after such period, any agency/unit that fails to make written response shall be considered approving.

5. On the basis of the application for the License and opinions of relevant agencies/units (if any) and depending on the technical regulations and standards for construction in relevant law documents, the licensing agency shall conduct appraisal of the application, conduct on-site inspection and decide the issuance of the License. If the licensing agency refuses to issue the License, a written notification containing explanation shall be issued.

6. Deadline for issuance of the License:

a) 05 working days from the day on which the satisfactory application is received according to regulations, applicable to cases not subject to collecting opinions from relevant agencies/units or on-site inspection;

b) 10 working days from the day on which the satisfactory application is received according to regulations, applicable to cases not subject to collecting opinions from relevant agencies/units but subject to on-site inspection;

c) 15 working days from the day on which the satisfactory application is received according to regulations, applicable to cases subject to collecting opinions from relevant agencies/units or on-site inspection.

7. The License shall be issued according to the form in Appendix 2 enclosed with this Circular.

8. Duration of the License must be in accordance with the application but not exceed the duration of work items in the railway protection scope.

Article 8. Extension of the License

1. If the work is not completed on the day written on the License, the in-charge organization/individual must carry out the application procedures for extension of the License.

2. Procedures:

a) An application form for extension of the License using the form in Appendix 3 enclosed with this Circular that is submitted directly or by post to the licensing agency;

b) The extension License shall be issued within 05 working days from the day on which the satisfactory application is received according to regulations; if the application is rejected, the licensing agency shall make a written notification containing explanation.

3. Each License shall be extended for not exceeding 2 times; duration of each extension must not exceed 12 months.

4. The Decision on extension of the License shall be issued according to the form in Appendix 4 enclosed with this Circular.

Article 9. Revocation and cancellation of the License

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

a) The License is issued unconformably with current regulations;

b) The organization/individual obtaining the License fails to fulfill the requirements of competent authority that are written on the document on penalties for violations pertaining to construction within the railway protection scope.

2. Cancellation of the License

After 10 days from the day on which the decision on revocation of the License from the competent authority is received, if an organization/individual obtaining the License fails to return the License, the licensing agency or the competent authority shall issue a decision on cancellation of the License and send a notification to the organization/unit that is using the License.

Article 10. Competence in revocation, extension, revocation and cancellation of the License

1. The Director of Vietnam Railway Administration is responsible for issuing the License for works within the national railway protection scope.

2. The owner of the specialized railway or the person authorized to issue the License for works within the specialized railway protection scope.

3. Any agency responsible for issuing the License is entitled to grant the extension or impose the revocation or cancellation of the License it has issued.

4. The superior agency of the authority competent to issue the License is in charge of making decision on revocation or cancellation of the License that is unconformably issued by the inferior agency.

Chapter III

RESPONSIBILITIES, ENTITLEMENTS AND OBLIGATIONS OF ORGANIZATIONS AND INDIVIDUALS RELEVANT TO THE LICENSING

Article 11. Responsibilities and entitlements of licensing agencies

1. Responsibilities:

a) Publish the procedures for licensing at their offices;

b) Provide information related to the issuance of the License, including the regulations, methods and basis for performing administrative procedures at the request of the applicant for the License. Time limit for the provision of information is within 07 working days from the day on which the written application is received;

c) Issue and grant extension for the License according to regulations and take legal responsibility for the issuance of the License;

d) Retain the documents related to the issuance of the License for supervision and management;

dd) Collect, manage and use the collected amount of fees for the License (if any) according to current regulations;

e) Conduct inspection, and supervise the use of the issued License.

2. Entitlements:

A licensing agency is entitled to:

a) Impose the suspension of construction in case the construction is discovered unconformable to the issued License. When the decision on suspension is issued, if the organization/individual continues the violation, the License shall be revoked or cancelled according to regulations or transferred to a competent authority for handling according to regulations;

b) Refuse to issue or grant extension of the License if the requirements specified in Articles 4 and 5 of this Circular are not fulfilled.

Article 12. Responsibilities and entitlements of the enterprises in change of the management and trade of railway infrastructure or the organizations in charge of the management and use of specialized railway

1. Responsibilities:

a) Offer opinions about the impacts of the construction work applying for the License on the railway works and railway traffic safety on request;

b) Transfer the premise to the organization/individual issued with the License to carry out the construction and receive the transfer when the construction finishes;

c) Negotiate with the organization/individual issued with the License about the time of blockage of the premise for the construction;

d) Conduct inspection of the implementation of regulations on construction safety and railway traffic safety during the construction according to the provisions of the License and laws;

dd) Participate in the acceptance inspection, receive the construction as-built dossiers for supervision according to regulations.

2. Entitlements:

a) Request organizations/individuals issued with the License to comply with regulations on railway construction safety and railway traffic safety during the construction process;

b) If any risk of unsafety is discovered during the construction process, organizations/individuals issued with the License shall suspend the construction and shall take remedial measures and expeditiously report the case to the licensing agency for guidance.

Article 13. Responsibilities and entitlements of organizations/individuals applying for the License and the manager/user of the work

1. Responsibilities:

a) Comply with regulations in clause 2 Article 33 of this Law on Railway;

b) Take legal responsibility for the honesty of the application for the License and extension of the License according to the regulations;

c) Carry out the construction only when the License has been obtained;

d) Negotiate with the Enterprise in change of the management and trade of railway infrastructure or Organizations in charge of the management and use of specialized railway about the time of blockage serving the construction; carry out the procedures for receiving of transfer of the premise before the construction;

dd) Comply with the provisions in the issued License;

a) Transfer the site and the as-built dossiers to Enterprises in change of the management and trade of railway infrastructure or Organizations in charge of the management and use of specialized railway when the construction has finished;

g) Provide compensation for the damage they cause according to law provisions;

h) Pay fees for the License (if any) according to current regulations (if any);

i) Take responsibility for ensuring the construction safety and railway traffic safety during the construction process and carry out the maintenance during the use of the work

k) Promptly take measures to ensure the construction safety and railway traffic safety when any notification of the error in construction is received;

l) Initiatively relocate or renovate the work without claiming compensation at the request of competent authority; initiatively demolish the work and pay all the cost of the demolition when the service life of the temporary work expires.

m) Negotate with the Enterprise in charge of management and development of railway infrastructure when carrying out the maintenance of works outside the railway infrastructure that are lawfully constructed within the railway construction protection scope.

2. Entitlements:

a) Request the licensing agency to provide explanation and guidance and comply with regulations on licensing;

b) Make complaints and denunciation of violations against regulations on licensing.

Chapter IV

IMPLEMENTARY CLAUSE

Article 14. Effect

1. This Circular comes into effect from February 01, 2016.

2. The following documents are annulled:

a) Decision No. 60/2005/QD-BGTVT dated November 30, 2005 by the Minister of Transport;

b) Article 1 Circular No. 28/2011/TT-BGTVT dated April 14, 2011 by the Minister of Transport.

Article 15. Organization of implementation

1. The Chief of the Ministry Office, the Chief Inspector of the Ministry Office, Director of Vietnam Road Administration, Director of Vietnam Railway Administration, Director of the Services of Transport, Heads of agencies, organizations and individuals that are relevant shall be responsible for implementing this Circular.

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