|
THE GOVERNMENT |
SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness Hanoi, 15 December 2000 |
DECREE OF THE GOVERNMENT
ON THE IMPLEMENTATION OF THE MINERAL LAW
(Revised)
THE GOVERNMENT
Pursuant to the Law on Organisation of the Government dated 30 September 1992;
Pursuant to the Mineral Law dated 20 March 1996;
Upon the proposal of the Minister of Industry,
DECREES
Chapter
I
GENERAL
PROVISIONS
Article 1.
This Decree provides detailed regulations for the implementation of the Mineral Law adopted by the National Assembly of the Socialist Republic of Vietnam on 20 March 1996.
Article 2.
The provisions of this Decree shall apply to the
management, protection, basic geological surveys of mineral resources and
mineral activities, including: mineral prospecting, exploration, mining and
processing activities conducted in Vietnam by Vietnamese and foreign
organisations and individuals.
Chapter
II
COMPETENCE
FOR STATE MANAGEMENT OF MINERAL RESOURCES
Article 3.
1. The Ministry of Industry which performs the functions of State management of mineral resources throughout the country shall have the following duties and powers:
a) To formulate and submit to the competent authorities for the promulgation of, or to promulgate, in accordance with its competence, legal documents on the management, protection, basic geological surveys of mineral resources and mineral activities;
b) To organise the elaboration of master plan and plan for development of basic geological surveys of mineral resources throughout the country;
To take the lead and to co-ordinate with various concerned Ministries, central agencies, People's Committees of provinces and cities under the central authority (hereinafter referred to as provincial People's Committees) to elaborate and submit to the Government for decision the strategies, master plans and policies on mineral resources and the development of mineral mining and processing industries;
c) To organise the evaluation and assessment of project proposals for mineral exploration, reports on the results of exploration of minerals to be used as common building materials, reports on feasibility studies of mineral mining and processing, and mine designs, in accordance with this Decree and other provisions of the law;
d) To issue, extend, withdraw and permit the surrender of licenses for mineral activities, to permit the transfer of the rights to mineral activities in accordance with this Decree and other provisions of the law;
e) To propagate, popularise, guide and check various concerned agencies, localities, organisations and individuals in the implementation of mineral legislation; to organise specialised mineral inspection in accordance with Articles 58, 59 and 60 of the Mineral Law; to check and inspect activities of basic geological surveys of mineral resources;
f) To settle disputes, complaints and denunciations relating to mineral activities in accordance with its competence prescribed in Articles 57 and 62 of the Mineral Law and the law on complaints and denunciations;
g) To manage international co-operation activities in the fields of basic geological surveys of mineral resources and mineral activities;
h) To register, monitor, evaluate and sum up the results of basic geological surveys of mineral resources and the situation of mineral activities throughout the country, and to periodically report those to the Government;
i) To co-ordinate with provincial People's Committees and concerned Ministries and agencies in the protection of untapped mineral resources.
2. The organisational structures, duties and powers of the Ministry of Industry’s organs in charge of State management of geology and minerals shall be prescribed by the Government in separate regulations.
Article 4.
1. Ministries, Ministerial-level agencies and Government agencies (hereinafter generally referred to as Ministries) shall, within their functions, duties and powers, co-ordinate with the Ministry of Industry in managing and protecting mineral resources and mineral activities.
2. Ministries having functions of State management of the sectors which produce, utilise and trade in mineral materials shall have the responsibilities:
a) To take the initiative in co-ordinating with the Ministry of Industry, concerned Ministries, central agencies and provincial People's Committees to formulate and submit to the Government for decision the policies on mineral resources, the strategies, master plans and plans for development of mineral mining, processing, utilising and trading, including exporting and importing industries, which are related to the sectoral management functions of respective Ministries;
b) To co-ordinate with the Ministry of Industry in formulating and submitting to the Government for promulgation of or adopting, under their respective competence, regulations guiding the exploitation, protection and utilisation of mineral resources, which are related to the sectoral management functions of respective Ministries;
c) To direct and check the units under direct management of respective Ministries in the implementation of strategies, policies, master plans and legislation on minerals;
d) To co-ordinate with the Ministry of Industry in performing other duties within the State management of basic geological surveys of mineral resources and mineral activities, which are related to the sectoral management functions of respective Ministries.
Article 5.
The Ministry of Planning and Investment, the Ministry of Science, Technology and Environment and the Ministry of Industry shall, within their respective functions, co-ordinate with one another and direct in a uniform manner the international co-operation in the fields of mineral activities. The Ministry of Industry shall take the lead in the co-ordination with the concerned Ministries, Central agencies and provincial People's Committees and act as the contact agency for State management of mineral activities of foreign organisations and/or individuals investing in Vietnam.
Article 6.
The Council for Evaluation of Mineral Reserves, based at the Ministry of Science, Technology and Environment, shall assist the Government in the evaluation, consideration and approval of the reserves, stated in the reports on mineral exploration for feasibility study on mining, except for minerals to be used as common building materials. The organisation and operation of the Council for Evaluation of Mineral Reserves shall be prescribed by the Prime Minister in separate regulations.
Article 7.
1. Provincial People's Committees, within their delegated functions, duties and powers, shall have the responsibility:
a) To promulgate, within their competence, guidelines of the implementation of regulations of the Government, the Prime Minister and the Ministry of Industry on the management and protection of mineral resources and mineral activities in their respective localities;
b) To take the lead and co-ordinate with the Ministry of Planning and Investment, the Ministry of Defence, the Ministry of Construction, the Ministry of Public Security, the Ministry of Culture and Information, the Ministry of Agriculture and Rural Development, and the Ministry of Transport to delineate the areas in which mineral activities are prohibited or temporarily prohibited in accordance with Item 1, Article 14 of the Mineral Law;
c) To work out or take part in working out master plans for the development of mineral mining and processing industries within their respective territories;
d) To organise and guide the implementation of measures for the protection of untapped mineral resources located in their respective localities, in combination with the protection of environment and other natural resources, the assurance of social order and security and the protection of people's health and lives as well as the properties of the State and citizens;
e) To organise the evaluation and approval of reports on feasibility studies of mineral mining and processing and mine designs, in accordance with the provisions of this Decree and other provisions of the law;
f) To grant, extend and withdraw mining and processing licenses for minerals to be used as common building materials, or peat and licenses for artisanal mining according to their competence as prescribed in this Decree; within the scope of their responsibilities and powers, to deal with issues related to land rental and use of infrastructure as well as other related conditions for organisations and individuals permitted to conduct mineral activities and basic geological surveys of mineral resources in the localities;
g) To propagate, educate, supervise and check the implementation of legislation on minerals by all organisations and individuals in the localities;
h) To settle or take part in settlement of disputes in relation to mineral activities and handle violations of legislation on minerals, committed in the localities, in accordance with the competence prescribed in Article 57 of the Mineral Law and other provisions of the law.
2. The local Industrial Departments shall assist the provincial People's Committees in performing the functions of State management of minerals in accordance with the provisions of the Mineral Law and this Decree. The duties and powers of local Industrial Departments in State management of minerals shall be defined by the Minister of Industry.
Article 8.
People's Committees of municipal districts, provincial cities, towns, townships, communes and wards (hereinafter referred to as district, commune), within their functions, duties and powers, shall have the be responsibility:
1. To take measures for the protection of untapped mineral resources in the localities, in combination with the protection of environment and other natural resources, the assurance of social order and security and the protection of people's health and lives as well as the properties of the State and citizens;
2. To deal with, within their responsibilities and powers, issues related to land rental and use of infrastructure as well as other related conditions for organisations and individuals who are permitted to conduct mineral activities and basic geological surveys of mineral resources in the localities in accordance with the provisions of law and the guidance of the provincial People's Committees;
3. To propagate, educate and supervise the implementation of legislation on minerals; to take part in the settlement of disputes in relation to mineral activities and handle, within their competence, violations of legislation on minerals committed in the localities.
Article 9.
The competence for granting, extending, withdrawing and permitting the surrender of licenses for mineral activities and permitting the transfer of rights to mineral activities shall be as follows:
1. The Ministry of Industry shall issue the following licenses:
a) Mineral Prospecting Permits;
b) Mineral Exploration Licenses;
c) Mining and processing licenses for minerals of all kinds, except for those falling under the issuing competence of the provincial People's Committees, as prescribed in Item 2 of this Article;
d) Mining and Processing Licenses for minerals to be used as common building materials granted to foreign organisations or individuals or to a joint venture with foreign partner(s).
2. The provincial People's Committees shall grant the following licenses for the areas falling under their administrative management:
a) Licenses for artisanal mining of minerals of all kinds in the areas where artisanal mining activities are approved by the Ministry of Industry in accordance with Articles 66 and 67 of this Decree;
b) icenses for mining and processing minerals to be used as common building materials (including adjacent areas between provinces, after the Ministry of Industry has granted exploration licenses and approved the reports on the results of exploration) and peat to domestic organisations or individuals, except for licenses which fall under the issuing competence of the Ministry of Industry as prescribed in Item 1 of this Article. The Ministry of Industry shall provide guidance on the issuance of licenses for mining and processing minerals to be used as common building materials with regard to adjacent areas between provinces.
3. The authorities competent to grant any kinds of licenses for mineral activities shall be entitled to extend, withdraw and permit the surrender of such kinds of licenses and permit the transfer of the rights to mineral activities under such kinds of licenses.
Chapter
III
BASIC
GEOLOGICAL SURVEYS OF MINERAL RESOURCES
Article 10.
Basic geological surveys of mineral resources shall include the following activities:
1. Surveying and discovering the potential mineral resources as well as producing regional geological maps, thematic maps and conducting specialised researches on geology and minerals.
2. Assessing the potential of types or groups of minerals as well as the prospective geological structures, in order to discover new mineral deposits.
Article 11.
Basic geological surveys of mineral resources shall be conducted at the same time and in combination with basic geological surveys in accordance with the State master plans and plans.
The Ministry of Industry shall submit to the Prime Minister the master plan and planning of basic geological surveys of mineral resources, the Ministry of Planning and Investment shall evaluate and submit the same to the Prime Minister for approval.
Article 12.
Organisations conducting basic geological surveys of mineral resources shall have the following rights and duties:
1. To register tasks and plans of basic geological surveys of mineral resources in accordance with the regulations of the Ministry of Industry;
2. To conduct activities of basic geological surveys of mineral resources in accordance with the approved projects and the assigned plans;
3. To comply with the process, regulations and technico-economic criteria in geological surveys, which have been enacted by the Ministry of Industry;
4. To ensure the truthfulness and adequacy in collecting data and information on geology and minerals; to keep State secrets of information on minerals in accordance with the law;
5. To potect the environment, mineral resources and other natural resources while conducting basic geological surveys and basic geological surveys of mineral resources;
6. To submit reports on the results of basic geological surveys of mineral resources to the State archives of geology and to hand over the geological and mineral samples and specimens to the geological museum in accordance with the regulations of the Ministry of Industry;
7. To be rewarded by the State for achievements in conducting research and making discoveries of geology and mineral resources;
8. To be permitted to send samples abroad for analysis and tests in accordance with the provisions of law.
Article 13.
All reports on the results of basic geological surveys of mineral resources must be assessed, registered and deposit with the State Geological Archives in accordance with the regulation of the Ministry of Industry.
The State Geological Archives shall keep the State secrets relating to mineral resources, create favourable conditions to all organisations and individuals permitted to use results of basic geological surveys of mineral resources as well as other information and documents related to minerals, in accordance with the regulations of the Ministry of Industry.
Article 14.
The Ministry of Industry shall provide detailed regulations on the contents of projects on basic geological surveys of mineral resources, and on the state geological archives and geological museum; promulgate
and provide guidance on the implementation of legal documents, technico-economic criteria and unit price of basic geological surveys of mineral resources.
Chapter
IV
ORGANISATIONS
AND INDIVIDUALS ENGAGED IN MINERAL ACTIVITIES
Article 15.
Organisations and individuals who are permitted to carry out mineral activities in accordance with the Mineral Law shall include:
1. Vietnamese organisations and individuals having fully met the conditions prescribed by the Law on State Enterprises, the Law on Enterprises and the Law on Co-operatives, and other economic organisations, established, permitted to be established, registered or recognised by competent State authorities, for mineral activities, or Vietnamese individuals having fully met the conditions prescribed by law;
2. Foreign organisations and individuals or joint ventures with foreign parties operating in Vietnam under the legislation on foreign investment in Vietnam.
Article 16.
In order to obtain licenses for mineral activities, organisations and individuals prescribed in Article 15 of this Decree must fully meet the conditions in accordance with the regulations of the Ministry of Industry .
Article 17.
Organisations and individuals conducting mineral exploration must possess technical equipment and acquire professional qualification in accordance with the regulations of the Ministry of Industry.
Article 18.
Organisations and individuals granted with licenses for mineral mining may only conduct the mining activities under the respective licenses after having appointed the qualified mine managers as prescribed by the Ministry of Industry.
The Minister of Industry shall prescribe the criteria of mine managers in accordance with Article 36 of the Mineral Law.
Chapter
V
REGIONS,
AREA AND DURATION OF MINERAL ACTIVITIES
Article 19.
1. Regions prohibited from mineral activities shall include:
a) Regions with classified and registered historical and cultural relics;
b) National garden forests, protection forests, geological preservation areas;
c) Regions marked off for the purposes of national defence and security or affecting national defence and security duties;
d) Regions for the protection of dykes, retaining walls, river banks, and important traffic works;
e) Regions marked off for religious purposes;
f) Urban regions or regions with important infrastructure works.
2. The Ministry of Defence, the Ministry of Public Security, the Ministry of Culture and Information, the Ministry of Agriculture and Rural Development and the Ministry of Communication and Transport shall, according to their functions, duties and powers, co-ordinate with provincial Peoples' Committees to delineate the boundaries of the regions where mineral activities are prohibited within the scope of each province's administrative management. The Chairpersons of provincial People' Committees shall submit to the Prime Minister for decision and notify the Ministry of Industry in writing of the regions where mineral activities are prohibited.
3. With respect to regions determined as being temporarily prohibited from mineral activities under the law, the State authorities competent for managing such regions shall notify in writing the concerned provincial People’s Committees and the Ministry of Industry .
4. The mining of underground minerals in regions prohibited from mineral activities without using surface land must also be approved, in writing, by the State authorities competent for managing such regions.
Article 20.
1. Regions of restricted mineral activities are regions where the State restricts mineral activities in one of the following forms:
a) Reserving exclusively for one or several certain State organisations to conduct mineral activities;
b) Restricting mining output;
c) Restricting exportation of the exploited products.
2. Regions of restricted mineral activities shall be stipulated by the Prime Minister.
Article 21.
Regions opened to biddings for mineral activities shall include:
1. Regions required by the Prime Minister to be subject to biddings for mineral exploration and mining;
2. Regions or mineral deposits, which have been explored with State capital and are currently opened to biddings or selection of contractors for mining.
Article 22.
1.The area for prospecting covered by a mineral prospecting permit shall not exceed two thousand square kilometres (2,000km2) delineated in square co-ordinates, without limiting the types of minerals to be prospected in the region. In special cases when an area larger than two thousand square kilometres (2,000 km2) is needed for prospecting, the Ministry of Industry shall submit to the Prime Minister for consideration and decision before granting the permit .
2. Mineral prospecting permits may be granted to several organisations or individuals operating in the same region. Exploration or mining applications submitted by any organisations or individuals n earlier and in conformity with the procedures prescribed by law shall be considered first.
Article 23.
1. The duration of a mineral prospecting permit shall not exceed twelve months.
2. Mineral prospecting permits covering an area of one hundred square kilometres (100 km2) or more may be extended once for not more than twelve months, provided that at the time the application for extension is submitted:
a) No other organisation or individual has submitted application for exploration in that area;
b) Organisations and individuals allowed to conduct prospecting activities have fulfilled all obligations as prescribed in the previous permits;
c) Mineral prospecting permits remain valid for not less than thirty days;
d) Organisations and individuals allowed to conduct mineral prospecting must submit reports on the results of mineral prospecting to the Ministry of Industry, clearly stating the reasons for extension and the programs for further prospecting, attached to the applications for the extension of the permits.
Article 24.
1. The exploration area covered by a license for exploring precious metallic minerals (gold, silver, platinum), precious gems (diamond, ruby, sapphire, emerald) shall not exceed one hundred square kilometres (100 km2).
2. The exploration area covered by a license for exploring coal, metallic minerals (except precious metals) and non-metallic minerals (except common building materials) in mainland regions, with or without water surface, shall not exceed two hundred square kilometres (200 km2).
3. The exploration area covered by a license for exploring minerals of all kinds in the continental shelf shall not exceed five hundred square kilometres (500 km2).
4. The exploration area covered by a license for exploring minerals to be used as common building materials in mainland regions, with or without water surface, shall nor exceed ten square kilometres (10 km2).
5.The exploration area covered by a license for exploring natural mineral water and thermal water shall not exceed twenty square kilometres (20 km2).
6. Organisations and individuals who meet all conditions prescribed in Articles 15 and 16 of this Decree may be granted with several exploration licenses, but not exceeding five licenses.
Article 25.
The duration of a mineral exploration license, including the time for making reports on exploration results and on feasibility studies of mining, shall be six months at least and not exceeding twenty four months, and may be extended in accordance with the following conditions:
1. By the time of applying for extension, the organisation and/or individual allowed to conduct mineral exploration has fulfilled all obligations prescribed in the previous license; and the exploration license remains valid for not less than thirty days;
2. For each time of extension, at least thirty per cent (30%) of the exploration area covered by the previous license must be relinquished;
3. The applications for extension submitted to the Ministry of Industry must be attached with reports on the exploration results and the actual costs, explanation of reasons for extension of the license, the program and plan as well as costs of further exploration;
The mineral exploration licenses prescribed in Clauses 1, 2 and 3 of Article 24 of this Decree may be extended not more than twice, provided that the total extended duration shall not exceed twenty four months; in case an exploration license has already been extended, the exploration period has lasted for forty eight months and the organisation or individual allowed to conduct the exploration has fulfilled or exceeded the work volumes and expenditures as stated in the plan, but has not yet acquired enough grounds for making the feasibility study report or still needs more time to conduct feasibility study of mining, the exploration license may be re-granted if the organisation or individual allowed to conduct exploration has submitted eligible application.
Article 26.
The mining area covered by a mineral mining license shall be determined on the basis of the mineral mining feasibility study report which has been evaluated and approved in accordance with the provisions of Article 44 of this Decree.
Article 27.
The duration of a mineral mining license shall be determined on the basis of the mineral mining feasibility study report which has been evaluated and approved according to the provisions of Article 44 of this Decree, but not exceeding thirty years, and may be extended according to the following conditions:
1. By the time of applying for extension, the organisation and/or individual granted with mining license has fulfilled all obligations prescribed by the Mineral Law and other relevant laws;
2. The mining license remains valid for not less than three months;
3. The application for extension submitted to the agency competent to grant the license must be attached with a report on the mining results up to the time of applying for extension, enclosed with a map of the mine status, the untapped area and unexploited mineral reserves of the mine, the program and plan for further mining;
In case a license was granted before the entry into force of the Mineral Law, the related mine design and a report on the assessment of environmental impacts, which have already been approved by the competent authority, must also be submitted;
4. A mineral mining license may be extended several times on the basis of further mining plan which has already been approved by the agency competent to grant the license, provided that the total extended duration shall not exceed twenty years.
Chapter
VI
PROVISIONS
ON FINANCE AND PROPERTY RIGHTS
Article 28.
The license fees mean fees charged for the issuance and extension of licenses for mineral activities.
The rates, procedures for collection and payment, management and use of the license fees shall be prescribed by the Ministry of Finance.
Article 29.
The fees for exclusive rights to exploration shall be calculated on the basis of the exploration area unit and the valid term of the mineral exploration license, in accordance with the following provisions:
The 1st year : 300,000 VND/km2/year;
The 2nd year : 400,000 VND/km2/year;
The 3rd year : 550,000 VND/km2/year;
From the 4th year onward: 700,000 VND/km2/year. The fees for exclusive rights to exploration shall not apply to mineral exploration licenses with terms, including the extended duration, of less than twelve months and shall not apply to exploration activities in the mining areas of organisations or individuals allowed to conduct mining.
Procedures for collection, payment, management and use of fees for exclusive rights to exploration shall be prescribed by the Ministry of Finance.
Article 30.
The payment of deposit for exploration license shall be made once upon the issuance of the mineral exploration license and shall not apply to licenses for activities funded by the State budget.
The rate of deposit shall be equal to twenty five per cent (25%) of the value of the estimated exploration expenses of the first year of exploration, which has been determined in the exploration project or plan already approved by the license-granting agency.
Six months after the mineral exploration license takes effect, if the exploration has not been commenced while the license is terminated, the deposit money shall be remitted into the State budget.
Six months after the mineral exploration license takes effect, if the exploration has been carried out as planned, the organisation or individual entitled to conduct exploration may get back his/her deposit money.
Organisations and individuals allowed to conduct mineral exploration shall be entitled to use the form of collateral at a Vietnamese bank or a foreign bank permitted to operate in Vietnam instead of the form of deposit payment.
The Ministry of Finance shall guide the procedures for payment, registration, and management of deposit or collateral money for mineral exploration licenses.
Article 31.
The minimum exploration costs calculated in Vietnamese currency unit/km2/year mean the minimum costs for implementing technical tasks of mineral exploration on an exploration area unit of one square kilometre (1 km2) within one year from the date the license takes effect.
The Ministry of Industry shall approve the minimum exploration costs for projects using State capital or accept the minimum exploration costs for projects without using State capital when granting or extending mineral exploration licenses.
Article 32.
With regard to a license for mineral exploration without using State capital, covering an exploration area of one hundred square kilometres (100 km2) or more, having a duration up to two years from the date the license takes effect, if the actual exploration expenses for the execution of the project in a period of two years are lower than the estimated costs already approved by the Ministry of Industry, the difference thereof shall be remitted into the State budget upon the expiration or extension of the exploration license.
Article 33.
Organisations and individuals allowed to conduct exploration shall perform the exploration work volumes and spend correspondingly in accordance with the exploration projects and plans approved by the Ministry of Industry.
In case the actual exploration costs of the previous year is larger than the estimate and the exploration plan of that year, the value of the excessive expense shall be brought forward to the actual costs of the succeeding year.
Article 34.
1. Organisations and individuals using State data and information on mineral prospecting and exploration results shall pay charges to the State in lump sum or in instalments based on the mining output.
2. Organisations and individuals having paid the charges for the use of State information on mineral prospecting and exploration results in lump-sum shall be entitled to use or transfer such information to another organisation or individual.
3. Organisations and individuals allowed to pay charges for the use of State information on mineral prospecting and exploration results in based on the mining output shall be entitled to use such information for their own mineral activities, but shall not be entitled to transfer, sell or disclose such information to other organisations or individuals.
The Ministry of Finance and the Ministry of Industry shall issue guidance on the methods of determining the value, modes and procedures of payment of charges for the use of State data and information on mineral prospecting and exploration results.
Article 35.
1. Organisations or individuals allowed to conduct mineral activities shall be entitled to use or transfer the information concerning the results of mineral prospecting or exploration funded by themselves.
2. Organisations which and individuals allowed to conduct mineral activities, partly or totally using State capital for conducting mineral prospecting and exploration, shall not be entitled to provide or transfer the information on the results of mineral prospecting and exploration to other organisations and individuals, except where such information is provided to State agencies competent or responsible for managing and using them in accordance with the provisions of law.
3.Six months after the expiration of a mineral exploration license, if the organisation or individual allowed to conduct exploration fails to submit application for mining license or six months after the expiration of a mining license, if the organisation or individual allowed to conduct mining fails to submit the application for the extension of the mining license, the competent State authorities may provide other organisations and individuals with the information related to such licenses.
Article 36.
When being permitted to transfer or bequeath rights to mineral exploration or rights to mineral mining, organisations and individuals allowed to conduct mineral exploration or mining shall be entitled to transfer or bequeath all properties under their lawful ownership, including data, information, geological and mineral samples and specimens, works and facilities constructed, built, equipped and attached to the mining sites.
When the mineral mining right is allowed to be transferred, the land lease contract shall be re-signed without going through the procedures for the transfer of the land use right.
The transfer of the State-owned property already assigned to organisations or individuals who are allowed to conduct mineral exploration or mining shall comply with the provisions of law.
Article 37.
Upon the expiration of a license for mineral exploration or mining l, the ownership over the properties related to mineral exploration or mining activities shall be settled in accordance with the Point b, Clause 2 of Article 30 and Points b and c, Clause 2 of Article 40 of the Mineral Law.
The Ministry of Finance and the Ministry of Industry shall guide the methods to determine the value of the properties to be transferred and the procedures for the transfer of properties of organisations or individuals allowed to conduct mineral exploration or mining to the State in case the licenses are terminated in accordance with the provisions of the Mineral Law and other relevant provisions of law.
Article 38.
Organisations or individuals permitted to conduct mineral mining shall make an escrow at a Vietnamese bank, or a foreign bank licensed to operate in Vietnam to guarantee the rehabilitation of the environment and land upon the completion of activities over each part of the mine areas and upon the closure of the mines.
The amount of the escrow for rehabilitating the environment and land shall be calculated on the basis of the process and tempo of mining and rehabilitation as well as the estimated costs of rehabilitation as specified in the feasibility study report, the mine design and the report on assessment of environmental impacts, which have already been evaluated and approved by the competent State authorities.
The Ministry of Finance, the Ministry of Industry and the Ministry of Science, Technology and Environment shall prescribe the methods of determining the amount of escrow and provide guidance on the procedures for registration, management and use of for the rehabilitation of the environment and land in mineral mining.
Article 39.
The Ministry of Finance shall work out and submit to the Prime Minister for promulgation the regime of allocation and use of State revenues from mineral activities for the implementation of policies to protect the rights and interests of the people in the localities where minerals are exploited and processed in accordance with Article 7 of the Mineral Law and for the protection of the untapped mineral resources.
Article 40.
With regard to the minerals which are important for the implementation of socio-economic development plans of the country, and the attraction of investment from other sources is difficult, the Prime Minister shall decide to fund a state-owned enterprise to carry out exploration.
The Ministry of Industry shall take the lead and with the Ministry of Planning and Investment and the Ministry of Finance to submit to the Prime Minister proposed projects for undertaking mineral exploration by state fundings, in accordance with this provision.
For other cases, State-owned enterprises shall be entitled to borrow preferential credits for mineral exploration. The State capital invested in mineral exploration and the preferential loans shall be gradually retrieved when the mines are put into mining operations.
The Ministry of Finance shall take the lead and with the Ministry of Industry and the Ministry of Planning and Investment to enact regulations and guidance on procedures for State capital allocation, for preferential loans and for the exemption or reduction of capital retrieval in mineral exploration.
Chapter
VII
EVALUATION
AND APPROVAL OF PROJECTS AND REPORTS ON MINERAL ACTIVITIES
Article 41.
Organisations or individuals allowed to conduct mineral activities shall be entitled to work out and evaluate plans, projects, mine designs or mine closure in mineral activities by themselves or through the service of legal geological or mining consultant organisations or individuals. .
Article 42.
1. The Ministry of Industry shall enact regulations and guidances on and organise the evaluation of mineral prospecting and/or exploration projects before deciding to grant the prospecting and/or exploration licenses.
2. The Minister of Industry shall, based on the results of evaluation, approve exploration projects to be partially or totally financed by the State.
3.For projects not financed with State capital, the contents of the project approval shall be stated in the mineral exploration licenses.
Article 43.
All reports on the results of mineral exploration partially or totally financed with State capital must be evaluated and approved before being lodged with the State geological archives or used for mineral mining feasibility study.
Reports on results of mineral exploration not funded with State capital, if being used as materials for mineral mining feasibility study, shall also be evaluated by the competent State authorities as provided for in Clauses 4 and 5 of this Article and be submitted to the State geological archives.
Requirements and contents of the evaluation of reports on mineral exploration shall include:
a) The reliability on the quality and quantity of minerals, including accompanied mineral; the finding of shortcomings in exploration leading to the omission of mineral resources;
b) The extent and quality of the determination of hydro-geological, geo-engineering conditions as well as technical and technological conditions related to the selection of technology for mining, processing and rational utilisation of mineral resources;
c) The exploration results, the efficiency of investment in exploration (if State capital is used) as compared to the objectives of the projects which have already been evaluated, accepted or approved.
4. The Ministry of Industry shall evaluate and approve reports on exploration of minerals for common building materials, which shall be used in mining feasibility study.
5. The Council for Evaluation of Mineral Reserves shall evaluate and approve the reserves stated in the exploration reports to be used for making feasibility study of mining of all minerals, except for those used as common building materials.
Article 44.
1. The evaluation and approval of feasibility studies of mineral mining under domestic investment projects shall comply with the Regulation on Investment and Construction Management promulgated by the Government.
2. The evaluation of feasibility studies of mineral mining under foreign direct investment projects shall comply with the Regulation on Evaluation and Implementation of Foreign Direct Investment Projects promulgated by the Government.
Article 45.
1. Organisations or individuals evaluating the mine designs must be those whose interest are independent from the designing organisations or individuals, and shall be responsible before the law for their evaluation results.
2. The mine designs of investment projects for mineral mining shall be evaluated and approved in accordance with the Regulation on Investment and Construction Management promulgated by the Government.
3.The Ministry of Industry shall provide guidance on the design contents and the procedures for evaluation and approval of the mine designs.
Article 46.
The Ministry of Industry shall enact regulations on the regime and contents of periodical reports on mineral activities.
Article 47.
All plans for mine closure must be evaluated and approved in terms of their contents, requirements on safety, environment and land rehabilitation as well as other requirements as prescribed in Points b and d of Clause 2, Article 40 of the Mineral Law.
The Ministry of Industry shall promulgate regulations on mine closure.
Chapter
VIII
PRINCIPLES
AND PROCEDURES FOR GRANTING LICENSES FOR MINERAL ACTIVITIES, TRANSFERRING,
BEQUEATHING OF RIGHTS TO XPLORATION,
MINING OR PROCESSING OF MINERAL RESOURCES
Article 48.
The main bases for considering and granting mineral activity licenses shall include:
1. The State’s strategies on socio-economic development in general, particularly strategies on development of mineral-related industrial sectors, such as energy, metallurgy, building materials, mineral fertilisers, chemicals, transport and mineral raw materials production and trading;
2. The Party’s and State’s policies on mineral resources and strategies as well as planning on the development of the mining industry in each province, region or zone and the entire country, in conformity with the socio-economic development strategy and the strategy on development of industries in each period;
3. The socio-economic efficiency of specific mineral activities, closely linked with the requirements to ensure security and defence, protect ecological environment, protect and use rationally natural resources in general, and protect historical and cultural relics and other public facilities in accordance with the provisions of the relevant legislation;
4. The legal capacity of the applicants (investors) as prescribed by law and other specific conditions as provided for in this Decree.
Article 49.
Apart from the main bases as prescribed in Article 48 of this Decree, the issuance of a mineral exploration license shall also be based on the opinions in writing of the provincial People’s Committee on whether an area planned to be covered by the exploration license is related to areas where mineral activities are prohibited or temporally prohibited, or areas where the provincial People’s Committee has already granted license for mineral mining in accordance with its competence.
The provincial People’s Committees shall, in accordance with their competence of State management in their respective localities, take the prime responsibility and co-ordinate with relevant competent authorities at central and local levels to define regions where mineral activities are prohibited or temporarily prohibited in accordance with Clause 1, Article 14 of the Mineral Law and Point b, Clause 1, Article 7 of this Decree.
In special cases where it is necessary to conduct mineral exploration or mining in areas belonging to regions in which mineral activities are prohibited or temporarily prohibited as prescribed in Article 19 of this Decree, the Ministry of Industry shall report to the Prime Minister for consideration and decision on the issuance of licenses for exploration or mining in those areas.
Article 50.
The grating of licenses for mineral mining or processing shall be based on feasibility study reports, reports on the assessment of impacts to the environment and of mineral reserves, which have already been evaluated or approved by the competent authorities in accordance with the provisions of law.
Article 51.
Prior to the issuance of mineral mining licenses, opinions in writing of provincial People’s Committees on matters prescribed in Article 49 of this Decree must be obtained, if such opinions had not been obtained when the exploration licenses were granted.
The provincial People’s Committees shall, in accordance with their competence, have to reply in writing to the application-receiving agencies no later than fifteen days after the receipt of the letters asking for their opinions.
In case of necessity, the agencies receiving applications for mineral mining may make public applications for mineral mining on mass media at least fifteen days before granting mining licenses in order to gather comments.
Article 52.
1. Upon the receipt of proper dossiers and applications for licenses for investment in mineral mining or processing or in activities related to mineral mining or processing with foreign direct investment capital, the Ministry of Planning and Investment shall co-ordinate with the Ministry of Industry to consider and gather comments from the concerned agencies, then submit them to the Prime Minister for decision or make decision by itself in accordance with its competence after obtaining written consent of the Ministry of Industry.
2. Foreign organisations, individuals or joint ventures with foreign parties, that are granted licenses for exploration, shall be entitled to enjoy preferential treatment as provided for by law for conducting the exploration under the approved projects.
3. Mineral mining or processing licenses shall be granted to foreign organisations, individuals or joint ventures involving foreign parties together with investment licenses in accordance with the provisions of the Law on Foreign Investment in Vietnam.
4.An investment license granted to a foreign organisation, individual or a joint venture with foreign party for the execution of a mineral mining project may cover the mineral exploration, mining and processing activities.
Article 53.
The maximum time limits for the evaluation of dossiers and applications for mineral activity licenses, excluding the time for gathering opinions from the concerned agencies as provided for in Articles 49 and 51 of this Decree, shall be prescribed as follows:
1. Forty five days after the date of receipt of all proper dossiers from domestic organisations or individuals;
2. Sixty days after the date of receipt of all proper dossiers from foreign organisations, individuals or joint ventures with foreign parties;
3. The above time limits do not include the time when organisations or individuals supplement data to their dossiers at the request of the receiving agencies.
No later than seven days after the above time limits, the competent authorities shall grant licenses or reply to the applicants in writing about the refusal to grant the licenses.
Article 54.
After the mineral activity licenses are granted in accordance with the provisions of this Decree, the competent State authorities at central and local levels shall be responsible for promptly solving issues related to the land rent, use of infrastructure and other relevant conditions for the organisations and individuals allowed to conduct mineral activities.
Article 55.
The organisation or individual allowed to conduct mineral activities shall be entitled to relinquish part of the area covered by their licenses or to surrender the mineral activity licenses under the following conditions:
1. Organisations or individuals permitted to conduct mineral activities have fulfilled all obligations under the law by the time of applying for the surrender of licenses; rehabilitated the environment, land and ensured safety within the area to be relinquished;
2. Within a period not exceeding three months after the surrender of the mineral exploration licenses, the organisations or individuals allowed to conduct the exploration shall fulfil all obligations as prescribed in Point b, Clause 2, Article 30 of the Mineral Law;
Within a period not exceeding six months after the surrender of the mining licenses, the organisations or individuals licensed to mine minerals shall fulfil all obligations as prescribed in Points b, c and d of Clause 2, Article 40 of the Mineral Law;
3. Being granted with written authorisation for the surrender of licenses by the competent authorities who have granted such licenses.
Article 56.
The transfer of rights to mineral exploration or mining shall comply with the following provisions:
1. Organisations or individuals allowed to conduct mineral exploration or mining shall be entitled to transfer their rights to mineral exploration or mining under the granted licenses to other organisations or individuals for continuing to exercise their rights and fulfil their obligations as prescribed in the licenses and in accordance with the provisions of law;
2. Property, documents and values to be transferred, as well as the unfulfilled financial obligations of organisations and/or individuals allowed to conduct mineral exploration or mining, which will be transferred together with the rights to mineral exploration or mining must be inventoried and assessed fully, clearly and authentically in the contracts of transfer between the parties;
3. Together with the contracts and the applications for transfer of the mineral exploration or mining rights, organisations or individuals allowed to conduct mineral exploration or mining must enclose reports on the exploration or miming results, achieved by the time of applying for the transfer;
4. Organisations or individuals transferred with the rights to mineral exploration or mining must meet all requirements as provided for in Article 15 of this Decree;
5. Transferees, that are foreign organisations or individuals or joint ventures with foreign parties, must have the investment licenses granted by the State competent authorities in accordance with the provisions of the Law on Foreign Investment in Vietnam;
6. The transfer of the exploration or mining rights of organisations and individuals allowed to conduct mineral exploration or mining must be permitted by the competent authorities who have granted such licenses, and shall be subject to tax payment as prescribed by law;
Article 57.
The mineral exploration or mining rights of individuals allowed to conduct mineral exploration or mining may be bequeathed, provided that the lawful heirs of such individuals fully meet the conditions as prescribed in Articles 15 and 16 of this Decree. In case the lawful heirs of the individuals granted with licenses for mineral exploration or mining fail to satisfy the conditions for continuing the operations as defined in the relevant licenses, the case can be settled as follows:
1. The lawful heirs to the property of an individual granted with license to mineral exploration or mining may transfer the rights to mineral exploration or mining under the license, provided that the factual conditions are in conformity with the provisions of Article 56 of this Decree;
2. The mineral exploration or mining licenses shall be withdrawn, the heirs to the property of the individuals licensed to explore for minerals shall have the rights and obligations as prescribed in Point b, Clause 2, Article 30 of the Mineral Law; the lawful heirs to the property of the individuals licensed to mine minerals shall have the rights and obligations as prescribed in Points b, c and d, Clause 2, Article 40 of the Mineral Law.
Article 58.
The mineral prospecting permits shall be withdrawn in accordance with the provisions of Article 24 of the Mineral Law. In case an organisation or individual granted with mineral prospecting permit breaches one of the provisions of Article 23 of the Mineral Law, the time limit for remedy shall not exceed thirty days after the date of the issuance of written notice by the bodies in charge of State management of minerals under the Ministry of Industry.
Article 59.
Mineral exploration licenses shall be withdrawn in accordance with the provisions of Article 29 of the Mineral Law. In case organisations or individuals licensed to explore minerals breach one of the provisions of Article 27 of the Mineral Law, the time limit for remedy shall not exceed sixty days after the date of the issuance of written notice by the bodies in charge of State management of minerals under the Ministry of Industry.
Article 60.
Mineral mining licenses shall be withdrawn in accordance with the provisions of Article 39 of the Mineral Law. In case organisations or individuals licensed to mine minerals breach one of the provisions of Article 33 of the Mineral Law, the time limit for remedy shall not exceed ninety days after the date of the issuance of written notice by the bodies in charge of State management of minerals under the Ministry of Industry or of provincial Departments of Industry in accordance with their delegated authority.
Article 61.
1. Mineral processing licenses shall be granted to organisations or individuals other than those licensed to mine minerals, based on the following conditions:
a) Organisations or individuals applying for mineral processing licenses fully meet the conditions prescribed in Articles 15 and 16 of this Decree;
b) Reports on mineral processing feasibility study have been evaluated, approved and accepted in accordance with the provisions of Article 44 of this Decree;
c) Reports on environmental impact assessment have been evaluated and approved by competent State authorities.
2. The term of a mineral processing license shall be based on the feasibility study report of each project and in conformity with the investment license or the investment decision.
3. A mineral processing license shall be withdrawn when the organisation or individual allowed to conduct mineral processing breach one of the provisions on obligations as provided for in Article 46 of the Mineral Law.
4. The transfer or bequest of mineral processing rights shall comply with the provisions of Articles 56 and 57 of this Decree.
Article 62.
Mining minerals for use as common building materials in the following cases shall not be required to apply for mineral mining licenses:
1. Mining minerals for use as common building materials within the framework of State projects on infrastructure construction, such as contraction of dams, excavating works for hydro-electric power generation or irrigation, levelling road ground, digging tunnels, dredging lakes, rivers and ports, defence works and other works of the State of similar nature, provided that the mineral mining is not conducted outside construction areas, the mining is only for the purpose of scraping up minerals, not for the main purpose of mineral trading, and investment projects and construction designs have already been evaluated and approved by competent State authorities in accordance with the law;
2. Mining minerals for use as common building materials for the purpose of scraping up minerals, not for the main purpose of mineral trading within the land areas allocated by the Government to organisations or individuals for use;
3. Prior to the commencement of the artisanal mining for minerals for common building materials as provided for in Clauses 1 and 2 of this Article, the licensed organisations or individuals must register the mining capacity, volumes and equipment together with the mining plans at the provincial Departments of Industry in their respective localities.
Article 63.
Mining soil of various kinds for the purpose of providing materials for reclamation in urban construction projects may be conducted, under the following conditions :
1. Documents on geological surveys of the mining area showing that no minerals of higher value are available in this area have been certified in writing by the provincial Departments of Industry;
2. The mining site is not in areas for agriculture or protection forest;
3. The mining activities shall not cause adverse impacts on the ecological environment and landscapes of the area, or damages to public facilities, infrastructure, historical or cultural relicts, defence works and terrain of military significance;
4. Being permitted by the provincial People's Committee.
Article 64.
The Ministry of Industry shall enact guidance on the procedures for the issuance, extension, allowing the surrender of mineral activity licenses, allowing the transfer or bequest of the rights to mineral exploration, mining or processing, and registration of mineral activities for uniform application throughout the country.
Chapter
IX
ARTISANAL
MINING
Article 65.
Artisanal mining is a form of mineral activities suitable with the following conditions:
1. Exploration of the licensed area is not compulsory before commencing mining operations;
2. The volume of excavation, including both tailings and minerals covered by an artisanal mining license shall not exceed five thousand (5,000) tons/year if such license was granted to an individual (not an enterprise), or not exceed one hundred thousand (100,000) tons/year if such license was granted to an organisation;
3. In case explosive is used, permission must be obtained in accordance with the law; use of toxic chemicals are not allowed;
4. Each individual shall only be granted with one artisanal mining license.
Article 66.
Areas where licenses for artisanal mining may be granted shall include:
1. Areas where minerals in the forms of placers, boulders or small ore bodies exist without concentration, which have been surveyed and evaluated and the industrial mining of which may not be economic;
2. Areas where minerals for common building materials are located away from the roads, lakes, rivers, canals and urban populated quarters, and socio-economic conditions as well as consumption demands are not appropriate for investment in industrial mining;
3. Mining sites where decisions on mine closure have been made in order to liquidate or close the mines for the purpose of protection, and the reactivation of industrial -mining shall not yield economic efficiency and artisanal mining shall not cause unsafety to the closed mines.
Article 67.
At the proposal of provincial People's Committees, the Ministry of Industry shall approve areas for artisanal mining of minerals, except precious metallic minerals and precious gemstones, for the provincial People's Committees to manage and grant licenses for artisanal mining, in accordance with Article 66 of this Decree and the guidance of the Ministry of Industry. Artisanal mining licenses shall not be granted with respect to any mineral deposits not yet approved by the Ministry of Industry.
Article 68.
The area for artisanal mining covered by a license shall not exceed twenty hectares if the license is granted to an organisation, and shall not exceed one hectare if the license is granted to an individual.
Article 69.
The duration of an artisanal mining license shall not exceed thirty-six months and may be extended several times but the total extended period shall not exceed twenty four months, provided that by the time of applying for the extension, the following conditions must be met:
1. Organisations or individuals allowed to conduct artisanal mining have fulfilled all obligations as prescribed in Article 52 of the Mineral Law;
2. The areas being applied for the extension of the license are still suitable for the form of artisanal mining in accordance with the provisions of the Mineral Law and of Articles 65 and 66 of this Decree;
3. The artisanal mining licenses remain valid for not less than thirty days.
Article 70.
The artisanal mining licenses shall be withdrawn in accordance with the provisions of Article 53 of the Mineral Law . In case the licensed area is no longer suitable for artisanal mining conditions, the artisanal mining licenses shall be withdrawn and the consequences thereof shall be settled based on the following provisions:
1. Organisations or individuals allowed to conduct artisanal mining shall remove all of their assets from the mining sites, rehabilitate the environment and land, and shall be compensated for the damages thereof by the organisations or individuals who are allowed to conduct mineral activities in the areas where artisanal mining licenses have been withdrawn;
2. In case no organisation or individual is allowed to conduct mineral activities in the areas no longer suitable for artisanal mining or the artisanal mining licenses have been withdrawn in accordance with the provisions of Clause 2, Article 14 of the Mineral Law, the damage incurred by organisations or individuals shall be considered and settled by the State as prescribe by law;
3. If the organisations or individuals, allowed to conduct artisanal mining, establish enterprises for mineral activities, they shall be granted with new licenses for mineral activities in the areas where the artisanal mining licenses have been withdrawn.
Article 71.
Organisations and individuals allowed to conduct artisanal mining may request State authorities, State institutions for scientific and technological research, and State enterprises engaged in mineral activities to provide technical and technological guidance and assistance. The above-said institutions shall have to satisfy the legitimate requests of these organisations and individuals. .
Article 72.
Provincial People's Committees shall, pursuant to the Mineral Law and this Decree and after having reached agreement with the Ministry of Industry, enact regulations on the organisation of the management and issuance of licenses for artisanal mining in conformity with the local conditions.
Chapter
X
SPECIALISED
MINERAL INSPECTORATE
Article 73.
The Mineral Inspectorate shall abide by the law and regulations on labour safety, labour hygiene and environmental protection, take initiative in co-ordinating with the State Inspectorate regarding labour and the specialised Inspectorate for environmental protection in the performance of the duties of examination and inspection on labour safety, labour hygiene and environmental protection in mineral activities, particularly the mineral mining activities; co-ordinate with the State Inspectorate of various branches and at various levels in the settlement of complaints and denunciations made by organisations and individuals in mineral activities.
Article 74.
The organisation, duties and powers of the specialised mineral Inspectorate shall comply with the provisions of Articles 59 and 60 of the Mineral Law and be prescribed by the Government.
Chapter
XI
IMPLEMENTATION
PROVISIONS
Article 75.
This Decree shall take effect 15 days after its signing and replace the Government’s Decree No. 68/CP of November 1, 1996 of on the implementation of the Mineral Law.
Article 76.
The Minister of Industry, the heads of the concerned ministries and agencies shall submit to the Government for promulgation the legal documents in conjunction with this Decree and shall be responsible to guide, monitor and inspect the implementation of this Decree.
Article 77.
The ministers, the heads of the ministerial-level agencies, the heads of Governmental bodies and the Chairpersons of the People's Committees of provinces and cities directly under central authorities shall be responsible to implement this Decree.
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ON BEHALF OF THE GOVERNMENT PRIME MINISTER (Signed and Sealed) Phan Van Khai |