Vietnam: How to calculate amount of fees evaded in case an organization or individual does not have a decision on assignment of sea area but still uses such sea area without payment?

In Vietnam: How to calculate amount of fees evaded in case an organization or individual does not have a decision on assignment of sea area but still uses such sea area without payment?

Pursuant to Clause 3.b Article 21 of the Circular 105/2022/TT-BQP, in case an organization or individual does not have a decision on assignment of sea area but still uses such sea area without payment of sea area usage fee, the amount payable is calculated as follows:

Amount of fees evaded = actual size of the used sea area (x) the highest specific rates of sea area usage fees in the range of sea area usage fees (x) actual time limit within which the violation against regulation on use of sea area is committed

Where:

- Specific rates of sea area usage fees are provided at Circular No. 18/2021/TT-BTNMT dated October 29, 2021 of the Ministry of Natural Resources and Environment.

- The time limit within which the violation against regulation on use of sea area is committed is the period beginning from the date on which an organization or individual that uses the sea area without the decision on assignment of such sea area; or after the expiry of the prescribed time limit or on which the use of sea area of such organization or individual is suspended by the competent authority to the date on which the competent authority carries out an inspection and notifies the suspension.

What are the fines for using the sea area without a decision on allocating the sea area from the competent authority affecting scientific research in Vietnam?

Pursuant to Decree 162/2013/NĐ-CP (amended by Clause 19 Article 3 of the Decree 37/2022/NĐ-CP) stipulating the fines  for using the sea area without a decision on allocating the sea area from the competent authority affecting scientific research in Vietnam as follows:

Article 27a. Violation of using the sea area when there is no decision to assign the sea area

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7. A fine ranging from VND 900,000,000 to VND 1,000,000,000 shall be imposed for using the sea area without a decision on allocating the sea area from the competent authority to allocate the sea area, which affects or obstructs access to the sea area during basic investigation, scientific research, exploration, exploitation and use of marine resources and environment and other lawful activities; except for the case of violations specified in Clause 1 of this Article.

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Pursuant to Clause 2 Article 3 of the Decree 162/2013/NĐ-CP (amended by Clause 3.a Article 3 of the Decree 37/2022/NĐ-CP) stipulating as follows:

Fines and power to impose fines

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2. Fines for administrative violations prescribed in Chapter II herein are imposed on individuals.The fine incurred by an organization is twice as much as that incurred by an individual for the same administrative violation.

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As regulations above, a fine ranging from VND 900,000,000 to VND 1,000,000,000 shall be imposed forusing the sea area without a decision on allocating the sea area from the competent authority affecting scientific research in Vietnam. If the violator is an organization, it shall be fined from VND 1,800,000,000 to VND 2,000,000,000.

What cases can be called as violation against regulation on assignment of sea areas in Vietnam?

Pursuant to Clause 2 Article 21 of the Circular 105/2022/TT-BQP stipulating violations against regulations on use of a sea area without a decision on sea area assignment as follows:

Violation against regulation on assignment of sea areas specified in Articles 27, 27a and 27b of Decree No. 162/2013/ND-CP, amended in Clauses 17, 18 and 19 Article 3 of Decree No. 37/2022/ND-CP

1. “Assignment of sea area(s)” means a competent authority deciding to permit an organization or individual to use one or more certain sea areas for a given period of time in order to extract and use marine resources specified in Clause 1 Article 2 of Government’s Decree No. 11/2021/ND-CP dated February 10, 2021 on assignment of certain sea areas to organizations and individuals for extraction and use of marine resources.

2. Violations against regulations on use of a sea area without a decision on sea area assignment:

a) An organization or individual uses a sea area to extract or use marine resources in case the competent authority has not decided to assign such sea area, or when the decision on sea area assignment has been expired, revoked or suspended; the organization or individual keep using the sea area or the competent authority has not granted approval for the use of the sea area, the organization or individual keep using the sea area.

b) From July 15, 2014, an organization or individual that uses a sea area shall have a decision on assignment of such sea area (according to regulations at Government’s Decree No. 51/2014/ND-CP dated May 21, 2014 on assignment of given sea areas to organizations and individuals for extraction and use of marine resource). It is not considered as a violation if the organization or individual uses the sea area before July 15, 2014 without the decision on assignment of sea area.

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As regulations above, violations against regulations on use of a sea area without a decision on sea area assignment are:

+ An organization or individual uses a sea area to extract or use marine resources in case the competent authority has not decided to assign such sea area

+ When the decision on sea area assignment has been expired, revoked or suspended

+ the organization or individual keep using the sea area or the competent authority has not granted approval for the use of the sea area, the organization or individual keep using the sea area.

Note: The time when organizations and individuals exploit and use the sea area before July 15, 2014 without a decision on the allocation of the sea area is not considered a violation.

Best regards!