Nghị định 51/2014/ND-CP

DECREE

PROVIDING THE ASSIGNMENT OF GIVEN SEA AREAS TO ORGANIZATIONS AND INDIVIDUALS FOR MARINE RESOURCE EXPLOITATION AND USE

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 21, 2012 Law on the Sea of Vietnam;

At the proposal of the Minister of Natural Resources and Environment;

The Government promulgates the Decree providing the assignment of given sea areas to organizations and individuals for marine resource exploitation and use.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Decree provides the assignment of given sea areas in Vietnamese sea regions to organizations and individuals for marine resource exploitation and use under investment certificates, marine resource exploitation and use permits or decisions of competent state management agencies; and responsibilities of state agencies, organizations and individuals involved in the assignment of sea areas.

2. The assignment of sea areas for petroleum exploration and exploitation complies with the law on petroleum; the aquatic resource exploitation and the lease of sea surface for aquaculture comply with the law on fisheries; the assignment of sea areas for defense and security purposes complies with regulations of the Government.

Article 2. Subjects of application

This Decree applies to agencies, organizations and individuals involved in the assignment of sea areas, marine resource exploitation and use.

Article 3. Interpretation of terms

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

1. A given sea area means a part of Vietnam’s sea, comprising water column, seabed and earth under the seabed, which is delimited with boundaries and planned for marine resource exploitation and use under law.

2. A 3-nautical mile sea region means a sea region with its outmost boundary lying at a distance of three nautical miles away from the average lowest sea level in many years in a parallel direction.

3. An inter-regional sea region means a sea region lying between two or more coastal provinces or centrally run cities; or between a 3-nautical mile sea region and a sea region beyond 3 miles.

4. Marine resource exploitation and use mean activities of acquiring marine resources or using marine resources for socio-economic development, national defense and security.

5. Investment certificates and marine resource exploitation and use permits or decisions are documents issued by competent state management agencies under specialized law, permitting organizations and individuals to exploit and use marine resources in the sea areas proposed for assignment.

Article 4. Sea area boundary and acreage

1. The sea area boundary and acreage are determined for every specific case on the basis of investment projects, investment certificates, marine resource exploitation and use permits or decisions of competent state management agencies as well as master plans and plans on use of sea areas.

2. A sea area is determined by line sections connecting angular points with specific coordinates and is demonstrated on sea charts of appropriate scales published by Vietnam People’s Navy.

Article 5. Principles for assignment of sea areas

1. To ensure the integrated, unified, inter-sectoral and inter-regional management; to ensure the close combination between socio-economic development and marine environment protection; to economically and efficiently exploit and use resources, to protect the marine environment and ensure sustainable development,

2. To ensure the national interests, the interests of organizations and individuals lawfully exploiting and using marine resources in the assigned sea areas; to ensure security and safety and to protect the national sovereignty on the sea.

3. To ensure the conformity with natural rules and utility of sea areas.

4. A sea area can be assigned only to one organization or individual.

Article 6. Grounds for assignment of sea areas

1. The demand for use of sea areas for marine resource exploitation and use of organizations or individuals.

2. Sea use master plans and plans already approved by competent authorities. In case of unavailability of sea use master plans and plans, the assignment of sea areas must be based on sectoral or local master plans already approved by competent authorities.

3. Natural rules and utility of sea areas and marine resource and environment protection requirements.

Article 7. Sea area assignment duration

1. The duration of sea area assignment to organizations or individuals for marine resource exploitation and use is considered and decided for every specific case based on written request for sea area assignment, investment project or marine resource exploitation and use plan, in conformity with sea use master plans and plans, the permitted duration for marine resource exploitation and use under the investment certificates, permits or decisions of competent state management agencies. The maximum sea area assignment duration must not exceed 30 years, which can be extended for many times, but the total extension duration must not exceed 20 years.

2. Where the sea area assignment duration defined at Clause 1 of this Article expires while the organizations or individuals assigned the sea areas still need to continue with the marine resource exploitation or use and are permitted by competent state management agencies and the use of assigned sea areas conforms with the sea use master plans and plans, new decisions on sea area assignment will be considered and issued under this Decree.

Article 8. Finance related to sea area assignment

1. Organizations and individuals that are assigned sea areas for marine resource exploitation and use shall pay the sea area use levy under law.

2. The sea area use levy is determined on the basis of the sea acreages permitted for use, the sea area use duration and types of marine resource allowed for exploitation or use.

3. The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Natural Resources and Environment in, providing methods of calculating, mode of collecting, and regime of management and use of, sea area use levy.

Article 9. Prohibited acts

1. Abusing the use of sea areas to affect national defense or security, national interests, legitimate rights and interests of other organizations and individuals.

2. Exploiting or using marine resources without being assigned sea areas by competent state management agencies or authorities.

3. Using sea areas for improper purposes; encroaching upon, occupying the sea, destroying the marine environment.

4. Violating the sea use master plans and plans already approved by competent authorities.

5. Obstructing activities of basic surveys, scientific research of marine resources and environment; activities of marine navigation, lawful marine resource exploitation and use permitted by competent state management agencies in the assigned sea areas and other lawful activities on the sea as provided by law.

6. Illegally providing information on sea areas.

7. Obstructing investigation, inspection and supervision of competent state agencies in the course of using the sea areas.

Other prohibited acts prescribed by law.

Chapter II

SEA AREA ASSIGNMENT, AMENDMENT AND SUPPLEMENTATION OF DECISIONS ON SEA AREA ASSIGNMENT, RETURN OF SEA AREAS

Article 10. Competence for assignment of sea areas

1. Competence for sea area assignment

a/ The Prime Minister decides to assign sea areas to organizations or individuals for implementation of investment projects on marine resource exploitation or use, which fall under the investment undertaking-approving competence of the National Assembly, the Government or the Prime Minister;

b/ The Ministry of Natural Resources and Environment decides to assign sea areas lying outside the 3-nautical mile sea regions; the inter-regional sea areas, excluding sea areas under the assignment competence of the Prime Minister, defined at Point a of this Clause;

c/ The People’s Committees of coastal provinces or centrally run cities decide to assign sea areas within the scope of the 3-nautical mile-sea regions, excluding the sea areas under the assignment jurisdiction of the Prime Minister or the Ministry of Natural Resources and Environment, defined at Points a and b of this Clause.

2. The state management agencies or authorities that are competent to issue decisions on assignment of sea areas, are competent to extend, amend or supplement decisions on assignment, recovery or permitted return of such marine areas.

Article 11. Sea area assignment

1. The sea area assignment must satisfy the following conditions:

a/ Organizations or individuals have already been granted investment certificates, permits or decisions for marine resource exploitation or use in the sea areas proposed for assignment;

b/ The sea areas proposed for assignment conform with the sea use master plans or plans or sectoral or local master plans approved by competent authorities as provided at Clause 2, Article 6 of this Decree.

2. The assignment of sea areas to organizations or individuals for marine resource exploitation or use is demonstrated by sea area assignment decisions (made according to form No. 07 provided in the Appendix to this Decree).

3. A sea area assignment decision has the following contents:

a/ The name of organization or individual to be assigned the sea area;

b/ The purpose of using the sea area;

c/ The location, boundary and acreage of the sea area;

d/ The sea area assignment duration;

dd/ The obligations of the organization or individual assigned the sea area;

e/ The effect.

Article 12. Rights and obligations of organizations and individuals assigned sea areas

1. Organizations and individuals that are assigned sea areas have the following rights:

a/ To use the assigned sea areas for marine resource exploitation and use under investment certificates, marine resource exploitation or use permits or decisions of competent state management agencies;

b/ To propose the extension of assignment duration, the return of sea areas or part of the sea areas, the amendment and supplementation of sea area assignment decisions;

c/ To use information and data related to the assigned sea areas as provided by law;

d/ To receive compensation or support when competent state management agencies recover the sea areas for defense and security purposes or national interests under law;

dd/ To complain about or initiate lawsuits against sea area assignment decisions, decisions on extension, amendment or supplementation of sea area assignment decisions; decisions on recovery of sea areas;

e/ Other rights prescribed by law.

2. Organizations and individuals that are assigned sea areas have the following obligations:

a/ To use the assigned sea areas for the proper purposes stated in the sea area assignment decisions; not to transfer the right to use the assigned sea areas to other organizations or individuals;

b/ To conduct marine resource exploitation and use only within the assigned sea areas;

c/ To pay taxes, charges and fees as provided by law as well as fulfill financial obligations related to the use of sea areas under this Decree and other relevant laws;

d/ To protect the marine environment; to report and provide information on the use of sea areas and the marine resource exploitation and use in the assigned sea areas to competent state agencies as provided by law;

dd/ To submit to the inspection and supervision by competent state agencies in the course of using the sea areas for marine resource exploitation and use;

e/ Not to obstruct activities of basic surveys, scientific research of marine resources and environment; marine navigation as well as lawful marine resource exploitation and use permitted by competent state management agencies in the assigned sea areas and other lawful activities on the sea;

g/ Not to conduct activities affecting the national security and sovereignty on the sea in the assigned sea areas;

h/ Other obligations prescribed by law.

Article 13. Extension of sea area assignment duration

1. The extension of sea area assignment duration is considered when the following conditions are met:

a/ The investment certificates, marine resource exploitation or use permits or decisions have been extended by competent state management agencies;

b/ Organizations or individuals use the sea areas for the proper purposes; fully observe regulations on marine environment protection;

c/ By the time of proposing the extension, organizations or individuals have fulfilled their financial obligations as provided by law;

d/ The organizations or individuals that demand the sea area assignment duration extension must submit complete dossiers as provided in Clause 2, Article 16 of this Decree to the dossier-receiving agencies when the sea area assignment decisions remain valid for at least 60 days.

2. The time limit for extension of sea area assignment decisions is considered for every specific case, ensuring the conformity with sea use master plans and plans, the duration allowed for continued marine resource exploitation or use under investment certificates, marine resource exploitation or use permits or decisions of competent state management agencies. The approval of duration extension is demonstrated by the grant of new decisions on assignment of sea areas.

Article 14. Amendment and supplementation of sea area assignment decisions

1. Sea area assignment decisions are amended and supplemented in the following cases:

a/ Change of organizations or individuals permitted to exploit or use marine resources;

b/ Change of names of organizations or individuals permitted to exploit or use marine resources;

c/ Change of marine resources exploitation or use scale or acreages, which leads to the change of acreage of the assigned sea areas.

2. The amendment and supplementation of sea area assignment decisions will be considered when the following requirements are met:

a/ The organizations or individuals proposing the amendment and supplementation of sea area assignment decisions have submitted complete dossiers as provided in Clause 4, Article 16 of this Decree to the dossier-receiving agencies;

b/ By the time of proposing the amendment and supplementation of sea area assignment decisions, the organizations or individuals assigned the sea areas have fulfilled the obligations defined at Points a, b, c and d, Clause 2, Article 12 of this Decree;

c/ The sea area assignment decisions remain valid.

3. The approval of amendment and supplementation of issued sea area assignment decisions is demonstrated by the grant of new sea area assignment decisions. The sea area assignment duration is the remaining duration of the previous assignment decisions.

Article 15. Return of sea areas

1. Organizations or individuals may return part or the whole of the assigned sea areas when they no longer have the use demand.

2. The return of sea areas is approved by competent state management agencies or authorities under the following regulations:

a/ Where organizations or individuals propose the return of the whole of the assigned sea areas, the approval of the return is demonstrated by decisions permitting the return of sea areas (made according to form No. 10 provided in the Appendix to this Decree);

b/ Where organizations or individuals propose the return of part of the assigned sea areas, the approval of the return is demonstrated by the grant of new decisions on assignment of the remaining sea areas.

Article 16. Dossiers of proposing the assignment, extension and return of sea area, and amendment and supplementation of sea area assignment decisions

1. A dossier of request for the assignment of a sea area comprises:

a/ The written request for assignment of the sea area (made according to form No. 01 provided in the Appendix to this Decree);

b/ The investment certificate, the permit or decision on exploitation or use of marine resources in the sea area proposed for assignment of competent state management agency;

c/ The report on assessment of environmental impacts, the written commitment to protect the environment of marine resource exploitation and use in the sea area proposed for assignment, which is approved by a competent state management agency;

d/ The map of the sea area proposed for assignment (made according to form No. 06 provided in the Appendix to this Decree).

2. A dossier of request for extension comprises:

a/ The written request for extension of sea area assignment decision (made according to Form No. 02 provided in the Appendix to this Decree);

b/ The issued decision on assignment of the sea area;

c/ The investment certificate, marine resource exploitation and use permit or decision already extended by a competent state management agency;

d/ The report on marine resource exploitation or use results; environmental protection and fulfillment of obligations prescribed in Clause 2, Article 12 of this Decree by the time of requesting the extension.

3. A dossier for return of a sea area comprises:

a/ The written request for return of the sea area (made according to form No. 03 provided in the Appendix to this Decree);

b/ The issued decision on assignment of the sea area;

c/ The sea area map showing the sea area for continued use, in case of return of part of the sea area (made according to form No. 06 provided in the Appendix to this Decree);

d/ The report on marine resource exploitation or use results; environmental protection and fulfillment of obligations prescribed in Clause 2, Article 12 of this Decree by the time of return.

4. A dossier of request for amendment and supplementation of a sea area assignment decision comprises:

a/ The written request for amendment and supplementation of the decision on assignment of sea area (made according to form No. 04 provided in the Appendix to this Decree);

b/ The issued decision on assignment of the sea area;

c/ The contents in Clause 1, Article 14 of this Decree, which have been approved by competent state management agencies and demonstrated in the investment certificate, and marine resource exploitation or use permit or decision;

d/ The map of the sea area in case of change in the boundary of the sea area (made according to form No. 06 provided in the Appendix to this Decree);

dd/ The report on marine resource exploitation or use results; environmental protection and fulfillment of obligations prescribed in Clause 2, Article 12 of this Decree by the time of submitting the dossiers of request for amendment and supplementation.

Article 17. Agencies receiving the dossiers of request for assignment, extension, amendment and supplementation of decisions on assignment of sea areas, return of sea areas

1. The Vietnam Administration of Seas and Islands is the agency receiving the dossiers of request for assignment, extension, amendment and supplementation of decisions on assignment of sea areas, return of sea areas, which fall under the assignment competence of the Prime Minister or the Ministry of Natural Resources and Environment.

2. Provincial-level Departments of Natural Resources and Environment are agencies receiving dossiers of request for the assignment, extension, amendment and supplementation of decisions on assignment of sea areas, return of sea areas, which fall under the assignment competence of the People’s Committees of coastal provinces or centrally run cities.

Article 18. Forms of receipt, and return of the results of handling of, dossiers of request for assignment, extension, amendment and supplementation of decisions on assignment of sea areas or return of sea areas

1. Dossiers of request for assignment, extension, amendment and supplementation of decisions on assignment of sea areas, return of sea areas shall be submitted directly or by post to the dossier-receiving agencies defined in Article 17 of this Decree.

2. The return of results of dossier handling is made directly at the dossier-receiving agencies.

Article 19. Contents of appraisal of dossiers of request for the assignment, extension, amendment and supplementation of decisions on assignment of sea areas, return of sea areas

1. The completeness in form and content of the dossiers.

2. The proposed sea areas’ conformity with the sea use master plans and plans; the conformity of projected marine resource exploitation and use activities with natural laws and utility of the sea areas.

3. The contradictions and conflicts between the projected marine resource exploitation and use activities and the on-going marine resource exploitation and use activities in the sea areas proposed for assignment (if any).

4. The suitability of solutions to environmental protection in marine resource exploitation and use in the sea areas proposed for assignment.

Article 20. Order of carrying out the procedures for assignment, extension, amendment and supplementation of decisions on assignment of sea areas or return of sea areas

1. The receipt of dossiers is carried out as follows:

a/ Organizations and individuals that request the assignment of sea areas, extension of decisions on assignment of sea areas or request the amendment and supplementation of decisions on assignment of sea areas or partial or entire return of sea areas shall submit two sets of dossiers to the dossier-receiving agencies. If the dossiers are sent by post, the date of dossier receipt is the date when the postal service transfers the dossiers to the dossier-receiving agencies.

b/ Within 5 working days after the receipt of dossiers, the dossier-receiving agencies shall examine the dossiers. If the dossiers are valid, the dossier-receiving agencies shall issue written receipts and make appointment for handling (made according to form No. 12 provided in the Appendix to this Decree). If the dossiers are invalid, the dossier-receiving agencies shall guide in writing the organizations and individuals for supplementation and completion of the dossiers.

2. The appraisal of dossiers is carried out as follows:

Within 45 days, for dossiers of request for assignment of sea areas; 30 days for the dossiers of request for extension of decisions on assignment of sea areas, return of part or the whole of sea areas; 20 days for dossiers of request for amendment and supplementation of decisions on assignment of sea areas, after the issuance of dossier receipts, the dossier-receiving agencies shall:

a/ Complete the dossier appraisal in accordance with Article 19 of this Decree. The appraisal results must be notified in writing.

When necessary, the dossier-receiving agencies shall send consultation documents of concerned agencies and organize site inspections (the time for comment collection and site inspection is not counted in the appraisal time). Within 20 days after receiving the comment-collecting documents of the dossier-receiving agencies, the agencies asked for comments shall reply in writing on relevant matters;

b/ Determine the financial obligations to be fulfilled by organizations and individuals.

3. The dossier submission and handling are carried out as follows:

a/ Within 5 working days after the completion of appraisal, the dossier-receiving agencies shall submit the dossiers to state management agencies or authorities competent to assign marine areas;

b/ Within 7 working days after the dossier-receiving agencies submit the dossiers, the state management agencies or authorities competent to assign sea areas shall consider and issue decisions to assign sea areas, to extend the assignment decisions, to permit the return of part or the whole of sea areas, to amend and supplement decisions on assignment of sea areas. If they do not issue decisions, they shall reply in writing clearly stating the reason.

4. Notification and return of results

Within 5 working days after the receipt of results of handling the dossiers from the state management agencies or authorities competent to assign the sea areas, the dossier- receiving agencies shall notify the dossier-submitting organizations or individuals of the dossier receipt and fulfillment of relevant obligations.

Chapter III

RECOVERY OF SEA AREAS, INVALIDATION OF DECISIONS ON ASSIGNMENT OF SEA AREAS

Article 21. Recovery of sea areas

1. Sea areas shall be recovered in the following cases:

a/ Organizations or individuals that are assigned sea areas abuse the use of sea areas to affect defense, security and national interests;

b/ The assigned sea areas are used for defense, security or national interests as provided by law;

c/ Organizations or individuals use sea areas in contravention of the sea use master plans or plans approved by competent authorities;

d/ Investment certificates, marine resource exploitation and use permits or decisions are revoked or 12 months after being assigned the sea areas, the sea area- assigned organizations or individuals fail to carry out marine resource exploitation or use, except for force majeure cases.

2. The recovery of sea areas under Points a, c and d, Clause 1 of this Article will be carried out as follows:

a/ Within 30 days after the receipt of conclusions of competent state agencies on violations of Point a, c or d, Clause 1 of this Article by organizations or individuals that are assigned sea areas, the dossier-receiving agencies shall conduct site inspection or verification when necessary and report it to competent state management agencies or authorities for decision on the recovery of sea areas.

b/ Within 10 days after the receipt of reports of the dossier-receiving agencies, the competent state agencies or authorities that have assigned the sea areas shall consider and decide on the recovery;

c/ Within 5 working days after the competent state management agencies or authorities issue the recovery decisions, the dossier-receiving agencies shall send the sea area recovery decisions to organizations or individuals and notify the recovery of sea areas to concerned agencies.

3. The recovery of sea areas under Point b, Clause 1 of this Article is carried out as follows:

a/ Within 20 days after the competent state agencies decide to use the assigned sea areas for defense and security purposes or national interests, the dossier-receiving agencies shall make and submit reports to the state management agencies or authorities competent to assigned the sea areas, for issuance of decisions on recovery of sea areas;

b/ Within 10 days after the receipt of reports of the dossier-receiving agencies, the state management agencies or authorities competent to assign sea areas issue decisions to recover the sea areas;

c/ Within 5 working days after the competent state management agencies or authorities issue decisions on recovery of the sea areas, the dossier-receiving agencies shall send the recovery decisions to organizations or individuals and notify the recovery to concerned agencies.

4. The recovery of sea areas is demonstrated by decisions (made according to form No. 11 provided in the Appendix to this Decree).

5. In case of recovery of sea areas under Point b, Clause 1 of this Article, the organizations or individuals that are assigned sea areas shall enjoy assistance and compensations as provided by law.

Article 22. Invalidation of decisions on assignment of sea areas

1. The decisions on assignment of sea areas are invalidated in one of the following cases:

a/ The sea areas are recovered;

b/ The decisions on assignment of sea areas expire;

c/ The sea areas are allowed for return;

d/ The organizations or individuals that are assigned sea areas dissolve or go bankrupt under law.

2. When decisions on assignment of sea areas are invalidated under Clause 1 of this Article, the organizations or individuals that are assigned sea areas shall handle sea resource exploitation or use facilities and equipment and improve and restore the environment in the assigned sea areas as provided by specialized law and report implementation results to state management agencies or authorities competent to assign the sea areas for inspection of implementation results.

Chapter IV

RESPONSIBILITIES OF AGENCIES IN THE ASSIGNMENT, EXTENSION, RECOVERY, PERMITTED RETURN, AMENDMENT AND SUPPLEMENTATION OF DECISIONS ON ASSIGNMENT, OF SEA AREAS

Article 23. Responsibilities of the Ministry of Resources and Environment

1. To assist the Government in performing the unified management of assignment of sea areas for marine resource exploitation and use.

2. To effect the assignment, extension or recovery, permit the return of part or the whole of, sea areas, the amendment and supplementation of decisions on assignment of sea areas in accordance with this Decree; to coordinate with state management agencies with competent to permit the marine resource exploitation and use and other concerned agencies in the course of implementation.

3. To establish and manage the system of information and data on assignment and use of sea areas nationwide.

4. To inspect and examine the observance of the law on assignment and use of sea areas nationwide; to settle disputes over the use of sea areas under its assignment competence as provided by law.

5. To sum up and assess the assignment and use of sea areas nationwide and biannually and annually report them to the Prime Minister.

Article 24. Responsibilities of the People’s Committees of coastal provinces or centrally run cities

1. To effect the assignment, extension or recovery, permit the return of part or the whole of, sea areas, the amendment and supplementation of decisions on assignment of sea areas in accordance with this Decree; to coordinate with state management agencies competent to permit the marine resource exploitation and use and other concerned agencies in the course of implementation.

2. To manage the use of sea areas for marine resource exploitation; to establish and manage the system of information and data on assignment and use of sea areas in their respective localities.

3. To sum up and assess the assignment and use of sea areas under the competence and biannually and annually report them to the Ministry of Resources and Environment.

4. To inspect and examine the observance of the law on the use of sea areas in their respective localities; to settle disputes over the use of sea areas under their respective assignment competence in localities as provided by law.

Article 25. Responsibilities of concerned agencies

1. The state management agencies, which are competent to license the investment and marine resource exploitation and use, when issuing investment certificates or marine resource exploitation permits or decisions, shall collect comments of, and consult, the state management agencies competent to assign sea areas on the coordinates, boundaries and acreages of sea areas projected for marine resource exploitation or use.

2. The Ministry of National Defense shall provide sea maps defined in Clause 2, Article 4 of this Decree for the state management agencies competent to assign sea areas in service of the assignment of sea areas and the management of the use of sea areas by organizations and individuals.

Chapter V

IMPLEMENTATION PROVISIONS

Article 26. Transitional handling

1. Sea areas used by organizations or individuals for marine resource exploitation and use under investment certificates, marine resource exploitation and use permits or decisions, which are issued before this Decree takes effect, may be further used by such organizations or individuals until the expiry of the investment certificates, marine resource exploitation and use permits or decisions if they conform with the sea use master plans or plans.

2. Marine resource-exploiting or -using organizations and individuals, defined in Clause 1 of this Article, must send reports on use of sea areas, enclosed with the maps of currently used marine areas to the state management agencies or authorities, that are competent to assign sea areas, for consideration and recognition. The recognition shall be demonstrated in decisions on assignment of sea areas.

Article 27. Effect

1. This Decree takes effect on July 15, 2014.

2. The Minister of Resources and Environment shall inspect the implementation of this Decree.

3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of the People’s Committees of coastal provinces or centrally run cities shall implement this Decree.-