Thông tư 188/2011/TT-BQP

CIRCULAR

GUIDING THE EXPERIMENTAL IMPLEMENTATION OF E-BORDER GUARD PROCEDURES AT SEAPORTS

Pursuant to the 2008 Law on Promulgation of Legal Documents;

Pursuant to the 2005 Law on E-Transactions;

Pursuant to the Government's Decree No. 71/2006/ND-CP of July 25, 2006, on management of seaports and maritime channels;

Pursuant to the Government's Decree No. 50/2008/ND-CP of April 21, 2008, on management and protection of security and order at border-gate seaports;

Pursuant to the Government's Decree No. 104/2008/ND-CP of September 16, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of National Defense-Pursuant to the Prime Minister's Decision No. 22/2011/QD-TTg of April 15, 2011, on the experimental implementation of e-border guard procedures at seaports;

At the proposal of the High Command of the Border Guard;

The Minister of National Defense guides the experimental implementation of e-border guard procedures at seaports as follows;

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides in detail the experimental implementation of e-border guard procedures at seaports; and border guard examination during and after implementation of e-border guard procedures at seaports.

Article 2. Subjects of application

1. Border guard units at border-gate seaports specified in Article 3 of the Prime Minister's Decision No. 22/2011/QD-TTg of April 15, 2011, on experimental implementation of e- border guard procedures at seaports (Decision No. 22/2011/QD-TTg);

2. Ship owners, ship managers, ship operators or persons authorized and registered to participate in the experimental implementation of c-border guard procedures at seaports (below referred to collectively as procedure implementers);

3. Vietnamese vessels on entry or exit; foreign vessels and crews on entry or exit, in transit or moving between border-gate seaports (including also petrol and gas prospecting, exploitation and service ships operating offshore) under the management of border guard units mentioned in Clause 1 of this Article.

This Circular does not apply to Vietnamese fishing ships and foreign vessels moving from border-gate seaports experimentally implementing e-border guard procedures to those not yet implementing these procedures; vessels of foreign agencies, organizations or individuals entitled to privileges and immunities under law; foreign nuclear-powered seagoing ships; foreign warships and marine police ships visiting to or being repaired or engaged in other activities in the Socialist Republic of Vietnam.

Article 3. Interpretation of terms

In this Circular, the terms and phrases below are construed as follows:

1. E-border guard procedures means that border guard units at seaports and procedure implemented declare, receive and process information and confirm completion of border guard procedures through the border guard web portal for vessels and crews to enter, leave or transit Vietnam or move from one port to another in Vietnam.

2. Border guard web portal means the only access point on the Internet where information, services and applications arc integrated to serve the implementation of e-border guard procedures via the Internet.

3. The processing system of e-border guard data means the system of equipment, software applications and database managed by the High Command of the Border Guard in a centralized and uniform manner and used for implementing e-border guard procedures.

4. E-border guard declaration means the declaration by procedure implementers of necessary information on declaration forms of e-border guard dossiers to implement border guard procedures through the border guard web portal for vessels and crews to enter, leave or transit Vietnam or move from one port to another in Vietnam.

5. Confirmation of completion of e-border guard procedures means that border guard units at border-gate seaports confirm completion of border guard procedures through the border guard web portal for vessels and crews to enter, leave or transit Vietnam or move from one port to another in Vietnam.

Article 4. Forms in e-border guard dossiers and related supporting forms

1. Forms in e-border guard dossiers are provided in Section 1 in the Appendix to this Circular (not printed herein).

2. Supporting forms related to e-border guard procedures are provided in Section 2 in the Appendix to this Circular (not printed herein).

Article 5. Management, exploitation and use of information relating to e-border guard procedures

1. The High Command of the Border Guard shall administer and process all data and information relating to e-border guard procedures to serve the Border Guard's professional work; and grant accounts to access the border guard web portal to border guard units at border-gate seaports experimentally implementing e-border guard procedures.

2. E-border guard procedures shall be posted on the border guard web portal.

3. Border guard units at border-gate seaports experimentally implementing e-border guard procedures shall grant accounts to access the border guard web portal to procedure implementers after receiving, considering and approving the latter's official letters on registration to participate in the experimental implementation of e-border guard procedures; re-grant accounts when procedure implementers cannot access the web portal; access the web portal to receive, check and process declared information and confirm completion of e-border guard procedures.

4. Procedure implementers shall be granted accounts to access the border guard web portal to make e-border guard declaration and exchange other relevant information with the border guard units at border-gate seaports experimentally implementing e-border guard procedures, and receive the latter's replies.

Article 6. Confidentiality of information relating to e-border guard procedures at seaports

1. Procedure implementers shall take responsibility for the information they supply on the Internet, protect and take responsibility for using passwords to access and declare e-border guard information.

2. The High Command of the Border Guard shall assure security for all data and information relating to e-border guard procedures. The management and storage of data shall be conducted in the server managed by the High Command of the Border Guard.

3. Border guard units at border-gate seaports experimentally implementing e-border guard procedures may use personal information of procedure implementers only for accurately identifying the names and legal status of procedure implementers to serve the grant of accounts to access the border guard web portal and for management work. They may neither supply nor share personal information of procedure implementers to third parties, unless it is so consented by individuals concerned or provided by law;

Border guard units at border-gate seaports experimentally implementing e-border guard procedures may use and share with specialized state management agencies at seaports declared information on vessels, crews, passengers and cargoes supplied by procedure implementers to complete procedures for Vietnamese vessels on entry or exit; foreign vessels and crews on entry or exit, in transit or moving from one port to another at border-gate seaports experimentally implementing e-border guard procedures.

Article 7. Handling of violations and settlement of complaints and denunciations in the implementation of e-border guard procedures

1. Organizations and individuals that violate regulations in declaring e-border guard procedures shall, depending on the nature and seriousness of their violations, be administratively sanctioned or banned from the experimental implementation of e-border guard procedures and. if causing damage, shall pay compensation under law.

2. Border guard officers and members who violate regulations in experimentally implementing e-border guard procedures shall, depending on the nature and seriousness of their violations, be disciplined under the Vietnamese People's Army's statutes on management of army men and, if causing damage, shall pay compensation under law.

3. The lodging and settlement of complaints and denunciations concerning the experimental implementation of e-border guard procedures comply with the laws on complaints and denunciations.

Chapter II

E-BORDER GUARD PROCEDURES

Article 8. Registration for participation in the experimental implementation of e-border guard procedures

Procedure implemented shall make written registration for participation in the experimental implementation of e-border guard procedures according to form 12 in the Appendix to this Circular. Within three working days after receiving such written registration, the border guard units at border-gate seaports shall issue a written reply to approve or disapprove the registration according to form 13 or 14 in the Appendix to this Circular.

Article 9. Deadlines for implementation of e-border guard procedures

1. At least 8 hours before a vessel is expected to arrive at a seaport or at least 2 hours before a vessel is expected to leave a seaport, information relating to the vessel and its crew on entry or exit, in transit or moving from one port to another; cargoes imported, exported, transited or transported from one border-gate seaport to another shall be declared by the procedure implementer according to the forms of the e- border guard dossier.

The time of starting e-border guard procedures is the time the processing system of e-border guard data receives all necessary information sent from the procedure implementer.

2. Within 1 hour after receiving all information sent from the procedure implementer according to the e-dossier, the border guard unit at the border-gate seaport shall confirm the completion of e-border guard procedures. The time of confirmation is the time the border guard unit sends the confirmation to the procedure implementer through the border guard web portal.

After completing e-border guard procedures and procedures required by other specialized state management agencies at the seaport, vessels on entry or moving from one port to another may have cargoes loaded or unloaded and engage in other activities according to program or plan; crews on board these vessels may go onshore under Article 18 of the Government's Decree No. 50/2008/ND-CP of April 21, 2008, on management and protection of security and order at border-gate seaports.

3. Within 2 hours after vessels are safely moored at a pier or within 4 hours after vessels are safely moored on a river or lagoon within port waters, procedure implemented shall submit paper dossiers to the border guard unit at the border-gate seaport.

For oil and gas prospecting, exploitation or service vessels operating offshore, within 2 hours after they arrive ashore, procedure implementers shall submit paper dossiers to the border guards unit of the border-gate seaport.

4. If a vessel has no change in its voyage itinerary, crew complement and passengers (if any) and commits no violation of Vietnamese law, within 2 hours, for a vessel moored at a pier, or 4 hours, for a vessel moored on a river or lagoon, after it leaves the seaport, the procedure implementer shall submit the paper dossier to the border guard unit at the border-gate seaport.

5. For foreign vessels moving between border-gate seaports experimentally implementing e-border guard procedures, their border guard dossiers shall be created electronically and transmitted via the processing system of e-border guard data; after completing e-border guard procedures for these vessels, procedure implemented are not required to submit paper dossiers for these vessels to the border guard units at the border-gate seaports.

In case a vessel moving from one port to another has different types of permits granted by the border guard at the border-gate seaport to the vessel and its crew and passengers which are valid for use at the seaport of destination or has documents on cases related to the vessel and its crew or passengers which need to be handed to the border guard of the port of destination for handling, the border guard of the port of departure shall make a paper dossier for transfer onboard the vessel to the border guard of the seaport of destination. At the seaport of departure, at least 1 hour before the vessel leaves the port, the procedure implementer shall come to the office of the border guard at the seaport to receive the paper dossier of the vessel, hand it to the vessel master for transfer to the border guard of the port of destination. At the seaport of destination, within 2 hours, for vessels moored at a pier, or 4 hours, for vessels moored on a river or lagoon, the procedure implementer shall submit the paper dossier of the vessel to the border guard unit of the seaport of destination.

6. For foreign vessels moving from a border-gate seaport not yet experimentally implementing e-seaport border guard procedures to a sea border gate experimentally implementing these procedures, within 2 hours after such vessels are safely moored at a pier or within 4 hours after they are safely moored on a river or lagoon within port waters, procedure implementers shall submit paper dossiers of these vessels to the border guards of the seaport of destination.

Article 10. Places of implementation of e-seaport border guard procedures

1. In case of force majeure events (natural disaster, fire, transmission line interruption caused by service provider), procedure implementers that are unable to make e-declaration through the border guard web portal shall directly come to the border guard offices at the border-gate seaports for making declaration and receiving confirmation of completion of e-seaport border guard procedures.

2. Places of receipt of declarations and confirmation of completion of e-seaport border guard procedures are border guard offices at border gate seaports.

Article 11. Declaration of e-border guard procedures

1. When declaring e-border guard procedures, procedure implementers shall use c-declaration forms 1, 2, 3, 4 and 5 in the Appendix to this Circular on the border guard web portal; the declaration must be complete and accurate and declarers shall take responsibility before law for declared information.

2. If receiving a request for re-declaration from the border guard of the border-gate seaport, a procedure implementer shall follow the guidance and make modifications and additions as requested.

3. If receiving no reply within 1 hour after sending all completed e-declaration forms to the border guard, the procedure implementer shall promptly notify such to the border guard for checking and handling.

Article 12. Receipt and processing of declared information and implementation of e-border guard procedures

1. E-border guard procedures shall be implemented around the clock everyday. In case of force majeure events (natural disaster, fire, transmission line interruption caused by service provider), border guards at border-gate seaports are unable to implement these procedures via the border guard web portal, border guard procedures for vessels and crews shall be carried out under the Government's Decree No. 50/ 2008/ND-CP of April 21, 2008, on management and protection of security and order at border-gate seaports.

2. On the basis of information analysis results of the processing system of e-border guard data combined with other information sources, the border guards at border-gate seaports shall approve or disapprove the implementation of e-border guard procedures for vessels and crews and promptly notify such to procedure implementers for implementation and to specialized state management agencies at seaports for coordinated implementation.

3. Confirmation of completion of c-border guard procedures or notice of refusal to implement e-border guard procedures shall be sent by border guards at border-gate seaports via the processing system of e-border guard procedures or in writing in case of inability to receive in electronic form (with signature and full name of responsible person). A notice of refusal to implement e-border guard procedures must clearly state the reason and measures to be taken by the border guard.

4. Confirmation of completion of e-border guard procedures, requests for modification and addition of declared information and notice of refusal to implement e-border guard procedures shall be made on forms 7, 8, 9 and 11 in the Appendix to this Circular, respectively.

5. If vessels on exit or moving from one port to another, after receiving confirmation of completion of e- border guard procedures, change their voyage itinerary, crew complement and passengers (if any) or violate Vietnamese law and therefore are penalized, they are required to implement border guard procedures again.

6. If vessels show signs of violation of Vietnamese law; there are persons illegally hiding on board; declared information is incomplete or inaccurate, border guards at border-gate seaports shall refuse to implement e-border guard procedures and they shall implement border-guard procedures for vessels and crews under the Government's Decree No.50/2008/ND-CP of April 21, 2008, on management and protection of security and order at border-gate seaports and directly inspect the vessels.

Refusal to implement e-border guard procedures shall be decided by commanders of border guard units at border-gate seaports experimentally implementing e-border guard procedures according to form 15 in the Appendix to this Circular.

Article 13. Correction and addition of declared information in e-border guard dossiers

1. Procedure implemented may correct and add information declared on the forms of e- border guard dossiers in the following cases:

a/ Within 1 hour after sending e-declaration forms to border guards at border-gate seaports, procedure implemented themselves detect mistakes and request to correct and add declared information according to form 10 in the Appendix to this Circular;

b/ Only after making e-declaration, can, procedure implementers, for objective reasons, be aware of information to be additionally declared or to be declared as required, which emerges after the time of completion of e-border guard procedures, according to form 10 in the Appendix to this Circular;

c/ It is so requested by border guards at border-gate seaports.

Procedure implementers shall clearly state reasons for making corrections and additions according to Point a or b, Clause 1 of this Article.

Handling of dossiers with corrected and additionally declared information

a/ Border guards at border-gate seaports shall permit corrections and additions after checking and verifying the reasons stated by procedure implemented;

b/ Old declarations and corrected and added declarations shall be stored in the processing system of e-border guard data as a basis for the checking, comparison and verification of authenticity of declared information in e-border guard dossiers.

Chapter III

BORDER GUARD EXAMINATION DURING AND AFTER IMPLEMENTATION OF E-BORDER GUARD PROCEDURES

Article 14. Objects of examination

1. E-border guard dossiers and paper dossiers.

2. Crews on board vessel s and their passports or valid substitute papers.

Article 15. Forms and levels of examination

During and after implementation of e-border guard procedures, border guards at border-gate seaports may conduct examination in the following forms and at the following levels:

1. Examining e-border guard dossiers through the processing system of c-border guard data; checking and comparing declared information in these dossiers and paper dossiers submitted by procedure implementers after completing c-border guard procedures and passports or valid substitute papers of crews produced upon their getting onshore in order to detect and handle violations under law.

2. Unexpectedly examining vessels to compare declared information in the e-border guard dossiers with reality or request procedure implementers to produce passports and valid substitute papers of crews after completing c-border guard procedures in order to assess the observance of law of objects of examination.

3. Directly examining vessels when detecting vessels, crews or passengers (if any) show signs of violation, there are persons illegally hiding on board vessels, or declared information on vessels, crews and passengers (if any) is incomplete or inaccurate so as to take handling measures under law.

Article 16. Competence to decide on forms and levels of examination

On the basis of results of analysis and assessment of declared information of e-border guard procedures in the processing system of e-border guard data and other information sources, commanders of border guard units at border-gate seaports experimentally implementing e-seaport border guard procedures shall decide on or change the forms and levels of examination according to Clause 2 or 3, Article 15 of this Circular.

Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 17. Stages of implementation of e-border guard procedures

1. Stage I will be implemented for 1 year from June 9, 2011 (the effective date of Decision No. 22/2011/QD-TTg):

a/ First three months: To publicly notify the experimental implementation of e-border guard procedures among concerned organizations and individuals in provinces and centrally run cities with seaports selected for the experimental implementation; to build a border guard web portal to serve the experimental implemen­tation; to develop and promulgate the process of implementing e-border guard procedures;

b/ Subsequent months: To start registration of participation in the experimental implementation of e-border guard procedures for organizations and individuals and organize the experimental implementation at 7 border guard units at border gate seaports stated in Article 3 of Decision No. 22/2011/QD-TTg.

2. Stage II will be implemented in 1 year (from the end of Stage I):

a/ First six months: To review and draw experiences and report to the Prime Minister on the process of the experimental implementation in Stage I;

b/ Subsequent six months: To perfect the process in order to review the experimental implementation before expansion to all border-gate seaports nationwide; and report to the Prime Minister and propose details of the implementation in all border-gate seaports nationwide.

Article 18. Organization of implementation

1. The High Command of the Border Guard shall:

a/ Assume the prime responsibility for, and coordinate with related agencies and organizations in, implementing this Circular;

b/ Direct the border guard commands of provinces and cities with border-gate seaports experimentally implementing e-border guard procedures to assume the prime responsibility for, and coordinate with provincial-level Justice Departments and related functional sectors in, advising provincial-level People's Committees on holding meetings to disseminate Decision No. 22/2011/QD-TTg and this Circular to local administrations and sectors at all levels; popularize them among the transport business community and related organizations and persons, and encourage and assist enterprises, organizations and persons in experimentally implementing e-border guard procedures.

2. Border guard units experimentally implementing e-border guard procedures shall:

a/ Assume the prime responsibility for, and coordinate with specialized state management agencies at seaports in, implementing e-border guard procedures. Receive registration requests and carry out registration procedures for enterprises, organizations and persons to participate in the experimental implementation:

b/ Provide software applications and forms; guide the installation and declaration of information for procedure implementers to participate in the experimental implementation; c/Provide and share information relating to vessels and crews implementing e-border guard procedures to specialized state management agencies at seaports for coordinated implementation; connect data transmission lines with these agencies at seaports experimentally implementing e-border guard procedures (if requested).

3. Specialized state management agencies at seaports experimentally implementing e- border guard procedures shall

a/ Coordinate with and create favorable conditions for border guards at border-gate seaports to experimentally implement e-border guard procedures;

b/ Provide and share information relating to security and order of vessels, crews, passengers and cargoes to border guards at border-gate seaports;

c/ Coordinate with border guards at border-gate seaports in handling violations of vessels, crews and passengers and other related organizations and individuals at home and abroad (when so requested).

4. Organizations and individuals experiment-tally implementing the e-declaration of border guard procedures at border-gate seaports shall strictly comply with Decision No. 22/2011/QD-TTg and guidance in this Circular and 'other relevant laws.

Article 19. Effect

This Circular takes effect 45 days after the date of its signing.

Any problems arising in the course of implementation shall be promptly reported to (he Ministry of National Defense (via the High Command of the Border Guard) for consideration and settlement.-