THE
GOVERNMENT
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|
THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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|
No.
22/2012/ND-CP
|
Hanoi
, March 26, 2012
|
DECREE
ON MINERAL EXTRACTION RIGHT AUCTION
Pursuant to the Law on Government
organization on December 25, 2001;
Pursuant to the Law on
Mineral No. 60/2010/QH12 November 17, 2010;
Pursuant to the Government’s
Decree No. 17/2010/ND-CP on March 4, 2010, on property auction;
At the proposal of the
Minister of Natural Resources and Environment;
The Government promulgates
the Decree on mineral extraction right auction,
Chapter I
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Article 1. Scope of regulation
This
Decree elaborates Clause 2, Article 79 of the Law on Mineral No.
60/2010/QH12 November 17, 2010 of the 7th National
Assembly on the principles, conditions and procedures for mineral extraction
right auction.
Other
provisions on auction must comply with law provisions on property auction.
Article 2. Interpretation of terms
In
this Decree, the following terms are construed as follows:
1.
Mineral extraction right auction means a form of public sale of mineral
extraction right by increasing bids under the principles and procedures
specified in this Decree.
2.
Bidder are the legal representatives of eligible organizations and individuals
attending mineral extraction right auctions (hereinafter referred to as
bidders).
3.
Auction guarantee is the commitment made by a credit institution to assure the
financial obligation fulfillment of organizations and individuals participating
in the Mineral extraction right auction.
Article 3.
Principles of mineral extraction right auction
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1. Transparent, open,
continuous, equitable and in which the lawful rights and interests of bidders
are protected.
2. An mineral extraction right
auction shall be held only when at least 3 bidders attend the auction.
3. Mineral extraction right
auction shall only be held at areas of which auction plans have been approved
by competent State agencies.
Article 4.
Reserve price
1. The reserve prices are set by
a state management agency competent to issue mineral extraction licenses
specified in Article 82 of the Law on Mineral before an auction.
2. The reserve price in an
mineral extraction right auction must not be lower than the price the mineral
extraction right.
3. The Ministry of Natural
Resources and Environment shall be in charge and cooperate with the Ministry of
Finance in specifying the reserve price calculation in mineral extraction right
auctions.
Article 5.
Deposit
1. Deposit means an amount (in
VND) paid by the bidders before the mineral extraction right auction. The
deposit shall be decided by the mineral extraction right auction council
(hereinafter referred to as auction council) as follows:
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b) For auctions of mineral
extraction rights in areas in which mineral exploration has not yet been
carried out, the deposit shall depend on mineral surveys and mineral assessment
results and be calculated as specified in Point a this Clause.
2. Bidders may pay the deposit
in cash or by auction guarantees as follows:
a) For cash payment, bidders
shall deposit in the suspense account of the agency that receives bidder
dossiers specified in Article 17 of this Decree;
b) For auction guarantees,
bidders must submit their auction guarantees to the agency that receives the bidder
dossiers.
3. The deadline for deposit
payment stated in the bidding invitation is at least 7 (seven) days before the
auction. Deposits of auction winners shall be remitted to the State Treasury
and deducted from the auction winning amount when issuing the mineral
extraction license.
Article 6.
Deposit refund
1. Deposits shall be refunded at
the end of the auction, except for the cases specified in Clause 2 of this
Article.
2. Cases ineligible for deposit
refund:
a) The bidders selected to
attend the auction and paid the deposit are not present at the auction, except
for force majeure;
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c) The auction winner refuses to
sign the auction record;
d) The auction winner fails to
submit the application for the mineral exploration license, mineral extraction
license after the time limit specified in Points b and c, Clause 2, Article 11
of this Decree;
dd) The mineral exploration
license is revoked as prescribed by law.
3. Deposit not being refunded in
the cases specified in Clause 2 of this Article shall be remitted to the state
budget.
Article 7.
Charges and expenses for mineral extraction right auctions
The charges for mineral
extraction right auction must comply with law on charges and fees.
Expenses for the compilation of
bidding dossiers; the evaluation and selection of bidders; the organization of
auctions by auction councils must comply with the law on property auction.
Chapter II
BIDDERS FOR THE MINERAL
EXTRACTION RIGHT
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1. Bidders may attend the
auction when the following conditions are satisfied:
a) Being organizations and
individuals of which the bidder dossiers are selected by a competent state
agency specified in Article 19 of this Decree;
b) The auction charge and deposit
have been paid as prescribed.
2. When legal status is changed,
the selected bidder must submit additional documents to the agency that
receives the bidder dossier before the auction.
3. An auction winner that
refuses the auction winning result without obtaining the consent from the
auction council shall be banned from any auction in 1 (one) year from the end
of that auction.
Article 9.
Subjects banned from auctions
1. The president and members of
the auction council; officers that receive and prepare mineral extraction right
bidding dossiers of the General Department of Geology and Minerals of Vietnam
and provincial Services of Natural Resources and Environment of localities in
charge of the area in which the mineral extraction right is up for auction;
fathers, mothers, spouses and children of the above persons.
2. Other banned subjects under
law provision on property auction.
Article 10.
Rights and obligations of bidders
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a) Have access to geological and
mineral documents related to the area in which the mineral extraction right is
up for auction under the law provisions on mineral and other related law
provisions;
b) Carry out field surveys in
the area in which the mineral extraction right is up for auction and take
ground samples in the area in which the mineral exploration has not been
carried out under Article 37 of the Law on Mineral;
c) Attend meetings related to
the auction held by competent state agencies.
2. Bidders have the obligations
to:
a) Strictly observe the rules
and regulation on auction promulgated by the auction council and other relevant
law provisions;
b) Other obligations as
prescribed by law.
Article 11.
Rights and obligations of auction winners
1. An auction winner have the
rights to:
a) Be issued with the mineral
extraction right auction winner certificate;
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c) Be issued with the mineral
exploration license, mineral extraction license after completing procedures for
the application for the mineral activity license as prescribed by law
provisions on mineral;
d) Other rights as prescribed by
law.
2. The auction winner has the
following obligations:
a) Paying the auction winning
amount under Article 24 of this Decree and fulfill other financial obligations
as prescribed by law;
b) Submitting the application
for the mineral exploration license to a competent licensing state agency
within 6 (six) months after the end of the auction in case no mineral
exploration has been carried out in the area in which the mineral extraction
right is up for auction.
c) Submitting the application
for the mineral extraction license to a competent licensing state agency within
12 (twelve) months after the auction in case the mineral exploration has been
carried out in the area in which the mineral extraction right is up for
auction.
d) The acquired mineral
extraction right must not be transferred to another organization or individual
for making an application for the mineral extraction license;
dd) Other obligations under law.
Chapter
III
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SECTION 1.
MINERAL EXTRACTION RIGHT AUCTION COUNCIL
Article 12.
Mineral extraction right auction council
1. For minerals under the
licensing authority of the Ministry of Natural Resources and Environment, the
auction council shall be established by the Minister of Natural Resources and
Environment to organize mineral extraction right auctions. The council consists
of no more than 11 members, including:
a) The Council President being
the Director of the General Department of Geology and Minerals of Vietnam;
b) The council members including
01 representative of the National Council for Assessment of Mineral Reserves
and representatives of the Ministry of Justice; the Ministry of Natural
Resources and Environment; the Ministry of Planning and Investment; the
Ministry of Finance; the Ministry of Industry and Trade; and the Ministry of
Construction, 01 representative of the General Department of Geology and
Minerals of Vietnam being the council secretary, 01 representative of the
provincial People’s Committee in charge of the mineral area up for auction, and
specialists;
c) The Standing Auction Council
affiliated to the Ministry of Natural Resources and Environment is the General
Department of Geology and Minerals of Vietnam.
2. For minerals under the
licensing authority of provincial People’s Committees, the mineral extraction
right auctions shall be held by a professional auction organizations. The
standing agency preparing documents and materials before and after an auction
is the provincial Service of Natural Resources and Environment.
For a mines with complex
geological structure or it is not able to hire a professional auction
organization, the provincial People’s Committee shall establish an auction council
to hold the mineral extraction right auction. An auction council consists of no
more than 11 members, including:
a) The president being a leader
of the provincial People’s Committee;
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c) The Standing Auction Council
affiliated to the provincial People’s Committee is the provincial Service of
Natural Resources and Environment.
3. The Ministry of Natural
Resources and Environment shall promulgate the Regulation on the auction
council operation.
Article 13.
Authority and responsibilities of auction councils and professional auction
organizations
1. Auction council:
a) Authority:
- Promulgating the auction
regulation of the mineral extraction right auction;
- Determining the deposit
specified in Article 5 of this Decree and bid increments for an auction
session;
- Depriving the right to attend
the auction of bidders that cause disturbance at the auction place or commits
acts of collusion or compromise to suppress prices or other acts which affect
the objectivity and truthfulness of the auction;
- Terminating or suspending the
mineral extraction right auction when detecting violations of auction
procedures.
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- Operating the auction as
prescribed in this Decree and the regulation of the auction council; being
responsible for the truthfulness of auction winning results before law and to
the state management agency competent to issue licenses;
- Settling complaints during the
auction; assisting the state management agency competent to issue licenses in
receiving, settling complaints intra vires, or suggest the settlement of complaints
arising after the auction;
- Submitting the auction results
to the state management agency competent to issue licenses for approval;
- Fulfilling other tasks as
prescribed.
2. Professional auction
organizations:
a) Authority:
- Requesting the provincial
Service of Natural Resources and Environment to provide information about the
area in which the mineral extraction right is up for auction: bidder
dossiers of eligible bidders; the reserve price;
- Requesting the provincial
Service of Natural Resources and Environment to defray the cost of the mineral
extraction right auction.
b) Obligations:
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- Providing the auction record
for the Service of Natural Resources and Environment;
- Paying compensation for the
damage caused by the auctioneer and other employees during the auction;
- Fulfilling other obligations
as prescribed by law provisions on auction.
SECTION 2.
PROCEDURES FOR MINERAL EXTRACTION RIGHT AUCTION
Article 14.
Planning and announcing areas up for mineral extraction right auction
1. Bases for mineral extraction
right auction planning:
a) The mineral extraction areas under
the mineral planning specified in Points b, c and d, Clause 1, Article 10 of
the Law on Mineral, which have been approved by competent state agencies;
b) The areas not put up for
mineral extraction right auction specified in Clauses 3 and 4, Article 78 of
the Law on Mineral, which have been approved by competent agencies;
c) The results and reality of
mineral extraction and intensive processing of minerals in localities and
nationwide; mineral demands for local, regional and national socio - economic development
in the succeeding year.
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Under the authority to license
the mineral extraction specified in Clauses 1 and 2, Article 82 of the Law on
Mineral; and Clause 1 of this Article, the General Department of Geology and
Minerals of Vietnam shall annually formulate and submit the plans on mineral
extraction right auction to the Minister of Natural Resources and Environment
for approval, the provincial Services of Natural Resources and Environment
shall formulate and submit the plans on mineral extraction right auction to
provincial People’s Committees for approval,.
3. After being approved, the
list of mineral areas put up for auction and annual plans on mineral extraction
right auction shall be publicly announced and posted on the websites of the
Ministry of Natural Resources and Environment and provincial People’s
Committees of in charge of the mineral areas.
Article 15.
Mineral extraction right auction invitation
1. Based on approved annual
plans on mineral extraction right auction, the General Department of Geology
and Minerals of Vietnam and provincial Services of Natural Resources and
Environment shall make the mineral extraction right auction invitation.
2. A mineral extraction right
auction invitation must contain the following primary contents:
a) Names of the minerals,
location of the mineral area put up for auction;
b) The scheduled place and time
of the auction;
c) The basic geological and
mineral information; mineral extraction conditions of the area put up for
auction; methods of information reference, the current infrastructural
conditions and the land use in the mineral area put up for auction;
d) The reserve price and
deposit;
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e) The forms required in a
bidder dossier (application for auction attendance; basic economic-technical
requirements, etc.).
3. For mineral extraction right
auction in an area with mineral exploration results, the agency that makes the
auction invitation specified in Clause 1 of this Article shall on the written
request for the specifications of the mineral extraction technology, intensive
processing and use of minerals, including:
a) The minimum requirements for
the methods, technology and equipment of mineral extraction and processing;
b) The minimum requirements for
mineral quality after mineral extraction and processing;
c) The purposes and addresses of
post-extraction mineral use in order to supply to mineral processing projects
stated in the planning for extraction and utilization of the same kind of
mineral approved by competent State agencies.
Article 16.
Contents and forms of bidder dossiers
1. The bidder shall make a
bidder dossier and submit it to the agency specified in Article 17 of
this Decree.
2. The documents in a mineral
extraction right bidder dossier include:
a) The original application for
mineral extraction right auction attendance;
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c) For areas with mineral
exploration results, the bidders must formulate a preliminary investment program
for mineral extraction, intensive processing, product sale and make a written
commitment to implementing such program if they win the auction.
d) For an area without mineral
exploration results, the bidders must formulate a preliminary investment plan
on exploration, mineral extraction, intensive processing, product sale and make
a written commitment to implementing such plan if they win the auction.
3. The Ministry of Natural
Resources and Environment shall provide the forms of the application and other
documents in the mineral extraction right bidder dossier.
Article 17.
Bidder dossier-receiving agencies, method and time of receiving mineral
extraction right bidder dossiers
1. Agencies receiving
bidder dossiers are regulated as follows:
a) The General Department of
Geology and Minerals of Vietnam is the agency making, notifying and selling
mineral extraction right bidding dossiers and concurrently the agency receiving
mineral extraction right bidder dossiers, for minerals to be licensed by the
Ministry of Natural Resources and Environment;
b) The provincial Service of
Natural Resources and Environment is the agency making, notifying and selling
mineral extraction right bidding dossiers and concurrently the agency receiving
mineral extraction right bidder dossiers, for minerals to be licensed by
provincial People’s Committees.
2. Mineral extraction right
bidder dossiers shall be submitted directly to the bidder dossier-receiving
agencies specified in Clause 1 of this Article.
The time limit for receiving
mineral extraction right bidder dossiers is 30 (thirty) days counting from the
date of closing the notification of an mineral extraction right auction
specified in Clause 1, Article 18 of this Decree.
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1. Based on the approved plan on
mineral extraction right auction, The agencies competent to hold mineral
extraction right auction specified in Article 12 of this Decree shall publicly
announce the mineral extraction right auction at its office and on the website
of the agency competent to issue licenses.
The time for notification and
publication of an auction is 30 (thirty) consecutive days before the date of
receiving mineral extraction right bidder dossiers. Information on an mineral
extraction right auction shall also be published in the central or local means
of mass media least twice with an interval of 3 (three) days.
2. Information on an mineral
extraction right auction includes:
a) Name of the minerals,
location of the mineral area put up for auction;
b) The reserve price, deposit;
c) The place and time of the
auction;
d) The starting date of receipt
of bidder dossiers;
e) Other relevant information.
Article 19.
Selection of bidder dossiers
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After 3 times of announcement
and by the deadline for receiving mineral extraction right bidder dossiers, if
the number of bidders is smaller than that specified in Clause 2, Article 3 of
this Decree, the agency that receives the bidder dossier shall report such to
the agency competent to issue licenses and shall not organize the auction.
2. The bidders selected for an
mineral extraction right auction must fulfill the following requirements:
a) Its bidder dossier has the
documents and materials made under Clause 2, Article 16 of this Decree;
b) It satisfies requirements on
mineral exploration or mineral extraction under Articles 34 and 51 of the Law
on Mineral;
c) It commits that its mineral
extraction and processing equipment and technology and product sale plan
conform with the requirements set in the bidding dossier.
3. Within 30 (thirty) days after
the deadline for receiving bidder dossiers, the bidder dossier-receiving agency
shall complete the selection of bidders’ dossiers for reporting to the auction
council president.
For an auction conducted via
professional auction organizations specified in Clause 2, Article 12 of this
Decree, the provincial Service of Natural Resources and Environment shall
transfer bidder dossiers of selected bidders to such organizations for holding
the auction after the above time limit is over as prescribed in this Decree and
the law provisions on property auction.
Within 30 (thirty) days after
receiving a report on selection of bidder dossiers, the auction council
president or the professional auction organization shall hold the mineral
extraction right auction.
4. For disqualified bidder dossiers,
the agency that receives the bidder dossier shall notify relevant organizations
and persons in writing specifying the reasons
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Section 3.
ORGANIZATION OF MINERAL EXTRACTION RIGHT AUCTION
Article 20.
Rules of an mineral extraction right auction
1. Before an auction is held,
the bidder must present the auction council or the professional auction
organization with the letter of introduction, the ID card; the receipt of
auction fee, receipt of deposit or written auction guarantee.
A bidder may send no more than 3
bidders to attend the auction, one of them shall make bids.
2. During an auction, bidders
must observe the following provisions:
a) Only exchange relevant
information with each other, not with other organizations or individuals;
b) Do not use means of
communications during the auction;
c) Do not cause disturbance or
hindrance to the auction or to violate the lawful rights of other bidders;
d) Do not bribe in order to
eliminate other bidders or collude with others to suppress prices.
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Article 21.
Order and principles of mineral extraction right auctions
1. At the beginning of an
auction, the auction council secretary shall introduce auction council members
and representatives of relevant agencies and organizations; introduce the
auction rules; announce the list of eligible bidders; call the roll of bidders
and bid makers; and answer inquiries (if any).
2. The auction council president
or auctioneer shall conduct the auction by direct secret bid through
uninterrupted bidding rounds. The auction only closes after the auction winner
is chosen.
The auction winner is the single
organization or person offering the highest bid compared to the reserve price
after all bidding rounds or the organization or person winning the draw in the
case specified at Point a, Clause 5 of this Article.
3. After each bidding round, the
auction council president or auctioneer shall publicly notifies the highest bid
of the round. When two or more equal highest bids are offered, the auction
council president or auctioneer shall continue distributing bid notes for
another bidding round.
The reserve price of the next
bidding round is the highest bid of the previous round. The bid written in a
bid note is valid when it equals the reserve price plus the bid increment
multiplied by an integer.
The progress of an mineral
extraction right auction shall be recorded in writing. After the auction, the auction
council president or the auctioneer shall publicly notify the council’s
conclusions and the auction winner. The auction winner must sign the auction
record right at the auction.
5. Special cases
a) If after three consecutive
bidding rounds, there are still two or more bidders offering the same highest
bid, the auction council president or auctioneer shall hold a draw to choose
the auction winner;
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c) When the substitute winner
refuses the auction winning result, the auction council shall make the written
cancellation of the auction result and report the case in writing to the agency
competent to issue licenses for consideration and decision.
Article 22.
Approval of auction winning results
Within 5 (five) working days
after an mineral extraction right auction closes, the agency that receives the
bidder dossier specified in Article 17 of this Decree shall submit the dossier
on approving the auction winning results to the state agency competent to issue
licenses . A dossier comprises:
a) The auction record;
b) The auction winner’s bidder
dossier;
c) A draft written approval of
the auction winning result.
2. Within 5 (five) working days
after receiving a dossier for approval of auction winning result, the state
agency competent to issue licenses shall issue a written approval of the
auction winning result, or otherwise a notice specifying the reason and
additional requirements (if any).
A written approval of the
auction winning result must specify the full name and abbreviated name of the
auction winner; name of the minerals; the location, coordinate and acreage of
the area put up for mineral extraction right auction; rights and obligations of
the auction winner, and the winning bid; commitments of the auction winner.
3. The written approval of the
auction winning result is a legal basis for the agency competent to issue licenses
to consider and license mineral extraction activities for the auction winner
under the Law on Mineral.
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1. Auction winning results shall
be notified publicly at the office of the agency that receives the bidder
dossier and the website of the agency competent to issue licenses right after
an auction closes.
The notification of auction
winning results includes:
a) The name of the auction
winner;
b) The name of the minerals; location
of the area of which the mineral extraction right is acquired;
c) The winner’s bid.
2. The time limit for notifying
and publishing auction winning results is 5 (five) days after an auction
closes.
3. The results of the mineral
extraction right auction licensed by the Ministry of Natural Resources and
Environment shall also be published on the websites of provincial People’s
Committees of the localities with mineral areas put up for auction.
Section 4.
AMOUNT OF WINNING MINERAL EXTRACTION RIGHT AUCTION
Article 24.
Mineral extraction right auction winning value
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2. The mineral extraction right
auction winning value for an area without mineral exploration results is a
percentage of the mineral deposit in that area.
The Ministry of Natural
Resources and Environment shall be in charge and cooperate with the Ministry of
Finance in, detailing the calculation in VND of the amount of winning an
mineral extraction right auction in an area without mineral exploration
results.
Article 25.
Time of determination the mineral extraction right auction winning amount
1. For mineral extraction right
auction in an area with mineral exploration results, the time for determining
the auction winning amount is right after the auction is done.
2. For mineral extraction right
auction in an area without mineral exploration results, the time for
determining the auction winning amount is before granting a mineral extraction
license.
3. The Ministry of Natural
Resources and Environment shall be in charge and cooperate with the Ministry of
Finance in, detailing the collection method and regimes on management and use
of mineral extraction right auction winning amounts.
Chapter IV
IMPLEMENTATION
PROVISIONS
Article 26.
Effect
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Article 27.
Implementation responsibilities
1. The Ministry of Natural
Resources and Environment shall be in charge and cooperate with the Ministry of
Finance in guiding the implementation of this Decree.
Ministers, Heads of
ministerial-level agencies, heads of governmental agencies, Presidents of
provincial People’s Committees and relevant organizations are responsible for
implementing this Decree.-
FOR
THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung