|
THE
GOVERNMENT No. 35/1997/ND-CP |
SOCIALIST REPUBLIC OF VIETNAM
|
|
|
Hanoi, 23 April 1997 |
DECREE OF THE GOVERNMENT
PROVIDING REGULATIONS ON SANCTIONS
AGAINST ADMINISTRATIVE VIOLATIONS IN THE FIELD
OF STATE MANAGEMENT OF MINERAL RESOURCES
THE GOVERNMENT
Based on the Law on Organisation of the Government dated 30 September 1992;
Based on the Mineral Law dated 20 March 1996;
Based on the Ordinance on Sanctions against Administrative Violations dated 6 July 1995;
Upon the proposal of the Minister of Industry,
DECREES
Chapter
I
GENERAL
PROVISIONS
Article 1. Scope and Objects of Application
1. Organisations or individuals who intentionally or unintentionally violate the regulations in relation to the State management of minerals, including regulations on mineral prospecting, exploration, mining, processing, protection of untapped minerals, and basic geological survey of mineral resources, hereinafter referred to as administrative violations in the field of State management of mineral resources, which are not prosecutable under the law, shall be subject to administrative sanctions in accordance with the provisions of the Ordinance on Sanctions against Administrative Violations dated 6 July 1995 and of this Decree.
2. Any acts of administrative violations in relation to environmental protection in mineral activities shall be dealt with in accordance with the provisions of the Governmental Decree on Administrative Sanctions in Relation to the Protection of the Environment (Decree No. 26-CP dated 26 April 1996). Acts of administrative violations in relation to labour safety and hygiene in mineral activities shall be dealt with pursuant to the provisions of the Governmental Decree on Administrative Sanctions against Violations of Labour Legislation (Decree No. 38-CP dated 25 June 1996)
Acts of administrative violations in the fields of storing, transporting, trading, exporting and importing minerals, which are related to administrative violations in the field of State management of minerals, shall be sanctioned in accordance with the provisions of the Governmental Decree on sanctions against administrative violations in the field of trade (Decree No. 01-CP dated 3 January 1996).
Acts of violations of the obligation to pay taxes, fees and charges in mineral activities shall be sanctioned in accordance with the provisions of the law on taxes, fees and charges.
3. Foreign organisation or individuals, who commit acts of administrative violations in the field of State management of minerals in the land territory, islands, internal waters, territorial sea, exclusive economic zone and continental shelf of the Socialist Republic of Vietnam, shall also be sanctioned in accordance with the provisions of this Decree, unless otherwise provided for by an international treaty to which Vietnam is a party.
Article 2. Principles of and Time Limits for
Administrative Sanctions in the Field of State Management of Minerals
1. The Principles of administrative sanctions in the field of State management of minerals are provided for by Article 3 of the Ordinance on the Sanctions against Administrative Violations.
2. The time limits for administrative sanctions in the field of State management of minerals shall be within two years from the date when the administrative violations are committed; beyond this time limit, the violations shall not be sanctioned, but subject to measures provided for in this Decree to overcome the consequences caused by those administrative violations.
3. Within one year from the date an organisation or individual, who had been sanctioned for an administrative violation, has complied with the sanction, or from the date the sanctioning decision ceased to be effective, the violation is not repeated, that organisation or individual shall be considered not having been sanctioned for an administrative violation in the field of State management of minerals.
Article 3. Application of other Forms or Measures of
Sanction
1. If the sanction is a fine, the specific amount of fine imposed on administrative violations in the field of State management of minerals shall be the average in the fine bracket provided for such violations; in cases where the violations involve extenuating factors, the fine may be reduced, but must not be lower than the minimum of the fine bracket; if the violation involves aggravating factors, the fine may be increased, but must not be more than the maximum of the fine bracket.
The extenuating and aggravating factors shall be determined in accordance with the provisions of Articles 7 and 8 of the Ordinance on Sanctions against Administrative Violations.
2. Additional sanctions and measures to the main sanctions shall be applied in accordance with the provisions of this Decree.
3. Licences of mineral activities shall be withdrawn if the organisation or individual commits administrative violations in the field of State management of minerals as provided for in the Mineral Law and this Decree.
Chapter
II
ACTS
OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF STATE MANAGEMENT OF MINERALS,
FORMS AND LEVELS OF SANCTION
Article 4. Violations of Regulations on Mineral
Prospecting
1. A warning or fine from 50,000 VND to 200,000 VND shall be imposed on one of the following acts:
a. Conducting mineral prospecting without the prospecting permit as prescribed by law;
b. Conducting mineral prospecting when the prospecting permit has already expired, except in cases where an application for the extension of the permit has been lawfully submitted and is under consideration;
c. Conducting mineral prospecting outside the area delineated in the prospecting permit;
d. Conducting mineral prospecting by using the prospecting permit of another organisation or individual;
e. Conducting mineral prospecting without informing of the prospecting plan to the State managing organs as prescribed by law;
f. Applying for the extension of the prospecting permit after its expiration date or when its extended validity remains less than 30 days.
2. A fine from 500,000 VND to 1,000,000 VND will be applied to one of the following acts:
a. Failing to submit the final report on the results of prospecting to the Ministry of Industry or submitting it 30 days or more later than the expiration date of the permit;
b. Bringing out of the prospected area samples and specimens in the volumes and of the types not in conformity with the adopted prospecting proposal or the conditions prescribed in the permit.
3. Forms of additional sanctions and other measures applied to administrative violations defined in this Article:
a. Revoking the right to use the permit for acts stipulated in paragraph 1(d) of this Article;
b. Imposing obligatory announcement of the prospecting plan as prescribed by law with regard to acts stipulated in Point e, Item 1 of this Article;
c. Imposing obligatory submission of the final report on the results of prospecting with regard to acts stipulated in Point a, Item 2 of this Article.
Article 5. Violations of Regulations on Mineral
Exploration.
1. A fine from 200,000 VND to 500,000 VND will be charged for acts of failing to inform of the exploration plan to the State managing organs as prescribed by law.
2. A fine from 500,000 VND to 1,000,000 VND for any of the following acts:
a. Conducting mineral exploration without the exploration licence as prescribed by law;
b. Conducting mineral exploration when the exploration licence has already expired, except in cases where the application for the extension of the licence has been lawfully submitted and is under consideration;
c. Conducting mineral exploration outside the area delineated in the exploration licence;
d. Conducting mineral exploration without informing of the exploration plan or failing to observe the regime of periodical reporting to the State managing organs as prescribed by law;
e. Applying for the extension of the exploration licence after its expiry or its validity remains less than 30 days in case it had been extended by the Ministry of Industry.
3. A fine from 1,000,000 VND to 5,000,000 VND will be charged for any of the following acts:
a. Failing to submit the final report on the results of exploration to the Ministry of Industry or submitting it 30 days or more later than the date on which the licence becomes invalid;
b. Failing, within the time-limit prescribed by law, to level and fill the excavation works in the exploration site or improperly fulfilling the requirements for the protection of mineral resources and environment upon the expiry of the mineral exploration licence;
c. Bringing out of the exploration area samples and specimens in the volumes and types not in conformity with the terms of the exploration proposal, or contrary to the conditions prescribed in the exploration licence.
4. Acts defined in Points a, b, c, and d of Item 2 and in Item 3 of this Article, if committed in an organised or repeated manner, or by abusing one's position or power, may be fined up to 10,000,000 VND;
5. Forms of additional sanctions and other measures to be applied to acts of violation shall be stipulated in this Article, as follows:
a. Stripping off the right to use (withdrawing) the licence for acts stipulated in Point d of Item 2 and for corresponding acts stipulated in Item 4 of this Article;
b. Imposing obligatory announcement of the exploration plan as prescribed by law with regard to acts stipulated in Point d, Item 2 of this Article;
c. Forcing the performance of restitution in relation to acts of violation stipulated in Points a and b, Item 3 of this Article.
Article 6. Violations of Regulations on
Mineral Exploitation
1. A fine from 200,000 VND to 500,000 VND shall be charged for any of the following acts:
a. Failing to inform of the mining plan to the State management organs as prescribed by law;
b. Failing to register the date of commencing the capital construction of a mine or the date on which mineral production, mining or processing start;
c. Failing to submit the mine design or to inform of the operational plan of mineral mining or processing to the State competent organs as prescribed by law;
d. Failing to declare the Managing Director of the mine to the State agency for management of mineral resources as prescribed by law.
2. A fine from 500,000 VND to 1,000,000 VND shall be charged for any of the following acts:
a. Conducting mineral exploitation without appointing a Managing Director of the mine, except otherwise provided by the Government;
b. Failing to observe the regime of periodical reporting on mineral mining activities as prescribed by law or irregular reporting at the request of the State competent managing agencies;
c. Extracting, by using artisanal mining method, minerals to be used as common building materials without licence or using expired licence or licence of another organisation or individual;
d. Applying for the extension of the mineral mining licence after its expiry or when its extended validity remains for less than 90 days.
3. A fine from 1,000,000 VND to 5,000,000 VND shall be charged for any of the following acts:
a. Conducting mineral mining (except for rare, precious and toxic minerals) without mining licence as prescribed by law;
b. Conducting mineral mining (except for rare, precious and toxic minerals) when the mineral mining licence has already expired, except that the application for the extension of the mining licence had been lawfully submitted and is under consideration;
c. Conducting mining operations (except for rare, precious and toxic minerals) in the areas or exploiting minerals, which have not been prescribed in the licence.
4. A fine from 6,000,000 VND to 30,000,000 VND shall be made payable for any of the following acts:
a. One of the acts stipulated in Item 3 of this Article in case of mining rare, precious and toxic minerals, or the violation is committed in an organised or repeated manner or by abusing one's position or power in case of mining other minerals;
b. Failing, within the time-limit prescribed by law after the expiry of the mining licence, to perform or improperly perform the rehabilitation of the mining site, environment and ecology, as well as the protection of unexploited minerals;
c. Failing to submit or insufficiently and untimely submitting the report on the results of mining activities and other related documents to the State agency responsible for management of mineral resources, or failing to perform other tasks as prescribed by law in relation to mine closure.
5. A fine from 30,000,000 VND to 100,000,000 VND shall be charged for any of the acts stipulated in Item 3 of this Article in case of mining rare, precious and toxic minerals and the violation is committed in an organised or repeated manner or by abusing one's position and power.
6. Forms of additional sanctions and other measures applied to the acts stipulated in this Article:
a. Forcing to perform tasks prescribed by law so as to restitute the consequences of violations defined in Item 1, Item 2 (a and b) and Item 4 (b and c) of this Article;
b. Confiscating the exploited minerals in relation to the acts defined in Item 2 (c), Item 3, Item 4 (a) and Item 5 of this Article;
c. Confiscating means used to commit the violation, in accordance with the provisions of law, in relation to acts of mining rare, precious and toxic minerals and as defined in Item 3(a) of this article;
d. Stripping off the right to use (withdrawing) the mineral mining licence for acts stipulated in Point d, Item 3 of this Article and for corresponding acts in case of mining rare, precious and toxic minerals.
Article 7. Violations of Regulations on
Mineral Processing
1. A fine from 200,000 VND to 500,000 VND shall be charged for any of the following acts:
a. Failing to observe the reporting regime or to inform of the mineral processing plan to the State competent managing agency as prescribed by law;
b. Conducting the processing of minerals (except for rare, precious and toxic minerals) when the mineral mining licence or the mineral processing licence has expired, except in cases where the application for the extension of the said licences had been lawfully submitted and is under consideration.
2. A fine from 500,000 VND to 2,000,000 VND shall be made payable for mineral processing activities (except for rare, precious and toxic minerals) without mineral mining licences or mineral processing licences as prescribed by law.
3. A fine from 2,000,000 VND to 10,000,000 VND shall be charged for any of the acts defined in Item 2 of this Article in the case of processing rare, precious and toxic minerals.
4. Stripping off the right to use (withdrawing) mineral processing licences for acts stipulated in Point b, Item 2 of this Article and for corresponding acts in the case of processing rare, precious and toxic minerals.
Article 8. Violations of other Regulations on
Management of Minerals
1. A fine from 200,000 VND to 1,000,000 VND shall be charged for any of the following acts:
a. Obstructing legal activities in relation to basic geological surveys of mineral resources or mineral activities of other organisations or individuals;
b. Obstructing or inciting others to obstruct the protection of unexploited minerals, but not seriously enough for criminal prosecution.
2. A fine from 2,000,000 VND to 10,000,000 VND shall be charged for any of the following acts:
a. Failing to remit or remitting insufficiently or untimely fees for the use of the State's data and information on mineral resources in accordance with the provisions of law;
b. Causing mineral losses while conducting and/or liquidating the drilling, excavation and mining works in basic geological surveys of mineral resources or in mineral prospecting, exploration and mining activities;
c. Causing mineral losses that exceed the permitted level (according to the design) in mineral mining and processing activities;
d. Using as common building materials the minerals of high value, which, according to the provisions of the Ministry of Industry, are not categorised as common building materials;
e. Concealing, devaluating or illegally trading particularly rare and precious geological and mineral specimens, which, according to the provisions of the Government, must be sold or handed over to the State, in cases the violation is not serious enough for criminal prosecution;
f. Failing to report or untruthfully reporting to the State competent agency on the discovery of the mineral prospects, thus causing adverse effects to the protection of such minerals;
g. Disclosing information on mineral resources classified as the State's secrets, in cases not serious enough for criminal prosecution;
h. Obstructing the activities conducted by the State competent official or agency in relation to the examination or inspection of minerals.
3. Forms of additional sanctions and other measures applied to acts stipulated in this Article:
Temporarily suspending activities related to the violation and forcing to perform tasks prescribed by law to restitute the consequences of the violations with regard to the acts defined in Points a, b, c, and d, Item 2 of this Article.
Chapter
III
COMPETENCE
AND PROCEDURES FOR SANCTIONING
ADMINISTRATIVE VIOLATIONS IN THE FIELD OF STATE MANAGEMENT OF MINERALS
Article 9. Competence of the People's
Committees of Various Levels in Relation with Administrative Violations in the
Field of State Management of Minerals
1. The Chairpersons of the People's Committees of the communes, wards and townships shall, according to the competence delegated to the local administration for State management of minerals, have the mandates to impose sanctions prescribed in Article 26 of the Ordinance on Sanctions against Administrative Violations with regard to the violations of the provisions of this Decree, specifically as follows:
a. To issue warnings;
b. To impose fines of up to 200,000 VND;
c. To confiscate material evidences and means used for committing administrative violations and valued up to 500,000 VND;
d. To force the compensation of up to 500,000 VND for damages caused by the administrative violations.
2. The Chairpersons of the People's Committees of the districts and equivalent levels shall, according to the competence delegated to the local administration for the State management of minerals, have the right to impose sanctions as prescribed in Article 27 of the Ordinance on the Handling of Administrative Violations (except for stripping off the right to use mineral activity licences) with regard to the violations of the provisions of this Decree, specifically as follows:
a. To issue warnings;
b. To impose fines of up to 10,000,000 VND;
c. To confiscate material evidences and means used for committing administrative violations;
d. To confiscate illegally exploited minerals;
e. To force the compensation of up to 1,000,000 VND for damages caused by the administrative violations.
3. The Chairpersons of the People's Committees of the provinces and cities under the central authority shall, according the competence delegated to the local administration for the State management of minerals, have the power to impose sanctions as prescribed in Article 28 of the Ordinance on the Handling of Administrative Violations (except for stripping off the right to use the mineral activity licences granted by the Ministry of Industry) with regard to the violations of the provisions of this Decree, specifically as follows:
a. To issue warnings;
b. To impose fines of up to 100,000,000 VND;
c. To strip off the right to use (withdraw) the mineral mining licence issued by and within the competence of the provincial People's Committee;
d. To confiscate the material evidences and means used for committing the administrative violations;
e. To confiscate the illegally exploited minerals;
f. To force the taking of measures to restitute the consequences caused by the administrative violations;
g. To force the compensation of up to 1,000,000 VND for damages caused by the administrative violations.
Article 10. Competence of the State Agencies for Management of Minerals to Sanction Administrative Violations in the Field of State Management of Minerals.
1. Specialised mineral inspectors while on duty are entitled to exercise the mandates stipulated in Item 1, Article 34 of the Ordinance on the Sanctions against Administrative Violations with regard to acts of administrative violations in the fields of State management of minerals, labour safety and environmental protection in mineral activities, specifically as follows:
a. To issue warnings;
b. To impose fines of up to 200,000 VND;
c. To confiscate material evidences and means used for committing violations and valued up to 500,000 VND;
d. To force the cessation of violations and the overcoming of consequences caused by the violations.
2. The Chief Specialised Mineral Inspector and the Heads of the agencies performing the functions of specialised mineral inspection of the provincial/municipal Industrial Departments are eligible for the mandates stipulated in Item 2, Article 34 of the Ordinance on the Handling of Administrative Violations with regard to the acts of administrative violation of the provisions of this Decree, specifically as follows:
a. To issue warnings;
b. To impose fines of up to 10,000,000 VND;
c. To confiscate material evidences and means used for committing the violations and valued up to 1,000,000 VND;
d. To force the cessation of the violation and the restitution of the consequences caused by the violation;
e. To force the compensation of up to 1,000,000 VND for the damages caused by the administrative violation.
3. The Chief Specialised Mineral Inspector and the Heads of agencies performing the function of specialised mineral inspection of the Ministry of Industry are entitled to exercise the rights stipulated in Item 3, Article 34 of the Ordinance on the Handling of Administrative Violations with regard to the acts of violating the provisions of this Decree, specifically as follows:
a. To issue warnings;
b. To impose fines of up to 20,000,000 VND;
c. To confiscate material evidences and means used for committing the administrative violation;
d. To confiscate the illegally exploited minerals;
e. To force the cessation of the violation and the restitution of the consequences caused by the administrative violation;
f. To force the compensation of up to 1,000,000 VND for the damages caused by the administrative violation.
Article 11. Authorisation and Principles for
Determining the Competence for Handling Administrative Violations in the Field
of State Management of Minerals.
1. The authorisation of competence for the handling of administrative violations in the field of State management of minerals shall comply with the provisions of Article 36 of the Ordinance on the Handling of Administrative Violations.
2. The principles for determining the competence for the handling of administrative violations in the field of State management of minerals shall comply with the provisions of Article 37 of the Ordinance on the Handling of Administrative Violations.
Article 12. Procedures for Sanctioning
Administrative Violations in the Field of State Management of Minerals.
1. The procedures and order for sanctioning administrative violations in the field of State management of minerals shall comply with the provisions of the Ordinance on the Handling of Administrative Violations.
2. All sanctioned administrative violations in the field of State management of minerals must be filed in dossiers and fully kept at the sanctioning agency.
3. The fined organisations and/or individuals must pay fines at the place stated in the sanctioning decision. The collection of fines by the sanctioning official, in any form, is strictly forbidden.
4. If the confiscation of minerals, material evidences and violation means is applied, the competent sanctioning official shall have to abide by the provisions of Article 51 and Item 1, Article 52 of the Ordinance on the Handling of Administrative Violations.
Article 13. The Execution of Sanctioning Decisions
and Enforcement of Sanctioning Decisions against Administrative Violations in
the Field of State Management of Minerals.
1. The organisation or individual, who is sanctioned for administrative violations under this Decree must, within the prescribed time-limit, strictly abide by the sanctioning decision of the competent sanctioning agency or authority. If the sanctioned organisation or individual fails to execute the sanctioning decision or deliberately dodges the execution, they shall be forced to execute it in accordance with Article 55 of the Ordinance on the Handling of Administrative Violations.
2. When applying the coercive measures to enforce the execution of sanctioning decisions against administrative violations in the field of State management of minerals, the competent agency or official shall have to follow the enforcement order and procedures as prescribed by law.
Chapter
IV
COMPLAINTS
AND DENUNCIATIONS ABOUT THE HANDLING OF VIOLATIONS
Article 14. Complaints and Denunciations About
Sanctioning Decisions against Administrative Violations in the Field of State
Management of Minerals.
1. Organisations and/ or individuals, who are administratively sanctioned in the field of State management of minerals, (or their lawful representatives), shall have the right to complain about the sanctions imposed on them.
2. Citizens have the right to file denunciations to the State competent agency about administrative violations in the field of State management of minerals committed by organisations or individuals, as well the violations committed by the competent authorities handling administrative violations in the field of State management of minerals.
3. The procedures, order, time-limit and competence for making and handling complaints or denunciations shall comply with the provisions of Articles 87, 88 and 90 of the Ordinance on the Handling of Administrative Violations dated 06 July 1995 and other provisions of the Ordinance on Settlement of Administrative Cases dated 25 May 1996.
Article 15. Handling Violations Committed by
Persons Competent to Sanctioning Administrative Violations in the Field of
State Management of Minerals.
If a person competent to sanctioning administrative violations in the field of State management of minerals extorts, tolerates, covers up violations, fails to handle or untimely and improperly handle the violations, abuse his or her competence, appropriates and illegally uses the fines, minerals, material evidences and violation means, he or she shall, depending on the nature and seriousness of her or his violation, be administratively sanctioned or examined for penal liability, and must make compensation for any damage caused by her/him.
Chapter
V
IMPLEMENTATION
PROVISIONS
Article 16.
This Decree shall take effect from 1st July 1997.
All previous provisions on sanctioning administrative violations in the field of State management of minerals, which are contrary to this Decree, will be repealed.
Article 17.
The Minister of Industry, the Ministers of other Ministries, the Heads of Governmental agencies, the Chairpersons of the People's Committees of provinces and cities under the central authority shall be responsible for the implementation of this Decree.
|
ON BEHALF OF THE GOVERNMENT THE PRIME MINISTER (Signed and sealed) Vo Van Kiet |