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THE
MINISTRY OF AGRICULTURE AND RURAL DEVELOPMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
109/2008/QD-BNN
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Hanoi,
November 11, 2008
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DECISION
PROMULGATING THE REGULATION ON BENEFIT SHARING APPLICABLE TO
PROJECTS ON PLANTING WATERSHED PROTECTION FORESTS IN QUANG TRI, THUA THIEN HUE,
QUANG NAM, QUANG NGAI AND PHU YEN PROVINCES, FUNDED WITH LOANS OF THE JAPAN
BANK FOR INTERNATIONAL COOPERATION (JBIC)
THE MINISTER OF AGRICULTURE AND RURAL DEVELOPMENT
Pursuant to the December 14,
2004 Law on Forest Protection and Development;
Pursuant to the Government’s Decree No. 23/2006/ND-CP of March 3, 2006, on
implementation of the Law on Forest Protection and Development;
Pursuant to the Government’s Decree No. 01/2008/ND-CP of January 3, 2008,
defining the functions, tasks, powers and organizational structure of the
Ministry of Agriculture and Rural Development;
Pursuant to the Government’s Decree No. 05/2008/ND-CP of January 14, 2008, on
forest protection and development funds;
Pursuant to the Specialized Credit Agreement coded VN VI-8, concluded on March
30, 1999, between the Overseas Economic Cooperation Fund (Japan) and the
Government of the Socialist Republic of Vietnam;
Pursuant to the Prime Minister’s Decision No. 152/2001/QD-TTg of October 9,
2001, on investment mechanisms and policies for planting watershed protection
forests in Quang Tri, Thua Thien Hue, Quang Nam, Quang Ngai and Phu Yen, funded
with loans of the Japan Bank for International Cooperation (JBIC);
Pursuant to the Prime Minister’s Decision No. 186/2006/QD-TTg of August 14,
2006, promulgating the Regulation on forest management;
Pursuant to the Prime Minister’s Decision No. 178/2001/QD-TTg of November 12,
2001, on rights to enjoy benefits and obligations of households and individuals
that are allocated, leased or contracted forests and forestland;
Pursuant to the Agriculture and Rural Development Minister’s Decision No.
40/2005/QD-BNN of July 7, 2005, promulgating the Regulation on exploitation of
timber and other forest products;
At the proposal of the director of the Forestry Department,
DECIDES:
Article 1.
To promulgate together with this Decision the Regulation on benefit sharing
applicable to projects on planting watershed protection forests in Quang Tri,
Thua Thien Hue, Quang Nam, Quang Ngai and Phu Yen provinces, funded with JBIC
loans.
Article 2.
This Decision takes effect 15 days after its publication in "CONG
BAO."
Article 3.
The director of the Ministry’s Office, the director of the Forestry Department,
the head of the Forest Projects Management Unit, the presidents of the People’s
Committees of Quang Tri, Thua Thien Hue, Quang Nam, Quang Ngai and Phu Yen
provinces, and heads of concerned units shall implement this Decision.
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FOR THE
MINISTER OF
AGRICULTURE AND RURAL DEVELOPMENT
VICE MINISTER
Hua Duc Nhi
REGULATION
ON BENEFIT SHARING APPLICABLE TO PROJECTS ON PLANTING
WATERSHED PROTECTION FORESTS IN QUANG TRI, THUA THIEN HUE, QUANG NAM, QUANG
NGAI AND PHU YEN PROVINCES, FUNDED WITH JBIC LOANS
(Promulgated together with Decision No. 109/2008/QD-BNN of November 11, 2008,
of the Minister of Agriculture and Rural Development)
Chapter I.
GENERAL PROVISIONS
Article 1.
Governing scope and subjects of application
1. Governing scope
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2. Subjects of application
a/ Subjects that are allocated land
or forests by the State (below referred to as forest owners); subjects that are
contracted protection forests for management, protection, development and use in
the post-investment period, including:
- Protection forest management
units, armed forces units and state-run forestry farms (forestry companies);
- Households and individuals;
- Communities of villages, hamlets
or equivalent administrative units (referred to as village communities);
b/ Commune-level People’s
Committees (for protection forest areas temporarily not allocated or contracted
to organizations or other subjects).
Article 2.
Interpretation of terms
The terms referred to in this
Regulation are construed as follows:
1. JBIC forestation projects means
projects on planting watershed protection forests in five central provinces
(Quang Tri, Thua Thien Hue, Quang Nam, Quang Ngai and Phu Yen) funded with JBIC
loans, which are formulated on the basis of the forestation component under the
Project on development of rural infrastructure and improvement of living
standards III (SPL-III).
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3. JBIC forests include new forest
plantations, protected natural forests, zoned off natural forests additionally
or not additionally planted with trees, which are financed by JBIC forestation
projects.
4. People’s Committees of project-
implementing provinces include the People’s Committees of Quang Tri, Thua Thien
Hue, Quang Nam, Quang Ngai and Phu Yen provinces.
5. Forest owners include
organizations, village communities, households and individuals that are
allocated forests by the State for stable and long-term use for forestry
purposes.
6. Contractors include village
communities, households and individuals that sign long-term contracts for
forest management, protection and development.
7. Average or difficult site
refers to a type of site associated with the accessibility to (distance,
topographical conditions, etc.), and the productivity and quality of forests,
in each site, which is considered and decided by the People’s Committee of a
project-implementing province.
Article 3.
Allocation of forests to forest owners for long-term management, protection,
development and use
Provincial or district People’s
Committees shall decide to allocate forests to subjects in the post-investment
period under the Government’s Decree No. 23/2006/ND-CP of March 3, 2006, on implementation
of the Law on Forest Protection and Development (below referred to as Decree
No. 23/2006/ND-CP), and the Agriculture and Rural Development Ministry’s
Circular No. 38/2007/TT-BNN of April 25, 2007, guiding the order of and
procedures for allocation and lease of forests to organizations, households,
individuals and village communities.
Article 4.
Forest management, protection, development and use contracts between forest
owners and contractors
1. State organizations
(principals) shall, based on the practical conditions for determination of
forest areas, sign forest management, protection, development and use contracts
with contractors. The two parties shall consider and decide on the contractual
limits under Articles 8, 13 and 14 of the Government’s Decree No.
163/1999/ND-CP of November 16, 1999, on allocation and lease of forestland to
organizations, households and individuals for long-term use for forestry
purposes, and the current Land Law.
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3. People’s Committees of project-
implementing provinces shall issue the form of contract on the basis of the
form in the Appendix to this Regulation for implementation.
Article 5.
Forest management, protection, development and use
1. People’s Committees of all
levels and forest owners shall manage and use land and forests under the Law on
Forest Protection and Development; Decree No. 23/2006/ND-CP; the Prime
Minister’s Decision No. 178/2001/QD-TTg of November 12, 2001, on rights to
enjoy benefits and obligations of households and individuals that are
allocated, leased and contracted forests and forestland (below referred to as
Decision No. 178/2001/QD-TTg); the Prime Minister’s Decision No.
186/2006/QD-TTg of August 14, 2006, promulgating the Regulation on forest
management (below referred to as Decision No. 186/2006/QD-TTg); the Agriculture
and Rural Development Minister’s Decision No. 40/2005/QD-BNN of July 7, 2005,
promulgating the Regulation on exploitation of timber and other forest products
(below referred to as Decision No. 40/2005/QD-BNN), and other current
regulations.
2. People’s Committees of
project-implementing provinces shall retrieve part of investment funds and use
it for forest management, protection and development in their localities under
current law.
Chapter II
RIGHTS AND OBLIGATIONS
OF FOREST OWNERS
Article 6.
Rights of forest owners
1. To exploit timber and non-timber
forest products in protection forests under Articles 5 and 6 of Decision
178/2001/QD-TTg and Articles 32 and 33 of Decision No. 186/2006/QD-TTg, and
enjoy benefits under Article 8 of this Regulation.
2. To be compensated by the State
for forest-related damage when the State issues forest recovery decisions.
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4. Forest owners that are state
organizations may contract forests to households, individuals and village
communities for protection and development.
Article 7.
Obligations of forest owners
1. To fulfill the obligations
under the law on forest protection and development and other regulations
related to forest management, protection and development. To conserve and
develop allocated forests and regenerate forests after exploitation. To observe
the Regulation on exploitation of timber and other forest products under
Decision No. 40/2006/QD-BNN.
2. To use received economic
benefits for setting up forest protection and development funds under the
Government’s Decree No. 05/2008/ND-CP of January 14, 2008, on forest protection
and development funds.
Article 8.
Share of the value of exploited and thinly pruned timber products between
forest owners (organizations, village communities, households or individuals)
and the State
1. Based on the actual conditions
of each type of site, People’s Committees of project-implementing provinces
shall decide on specific ratios for sharing the value of timber products
between forest owners and the State according to the following brackets of
benefit sharing:
a/ For timber products exploited
and thinly pruned from newly planted forests
The value of timber products after
paying taxes and expenses for exploitation and transportation of products to
places of sale shall be shared as follows:
- For subsidiary trees:
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The forest owner shall also
additionally plant or re-plant principal trees of protection forests right after
exploiting subsidiary trees (under the guidance of the local forestry agency).
- For principal trees (indigenous
trees):
The forest owner may exploit timber
being principal trees of protection forests (after having exploited subsidiary
trees and when principal trees have grown up enough to form protection forests
ensuring the protection function and reached the exploitable age) by
selectively logging trees with an exploitation intensity not exceeding 20% when
protection forests are allowed to be exploited under regulations according to
the design approved by a competent authority under Decision No. 40/2006/QD-BNN.
The value of timber products after paying taxes and expenses for exploitation
and transportation of products to places of sale shall be shared as follows:
90-95% for the forest owner and the remainder to be remitted into the communal
budget.
b/ For timber products exploited
and thinly pruned from natural forests which are protected and zoned off for
tending
The forest owner may exploit timber
by selectively logging trees with an exploitation intensity not exceeding 20%
when protection forests are allowed to be exploited, except rare and precious
forest animals and plants prescribed in the Government’s Decree No.
32/2006/ND-CP of March 30, 2006, on management of endangered, rare and precious
forest plants and animals. The value of timber products after paying taxes and
expenses for exploitation and transportation of products to places of sale
shall be shared as follows: 85-90% for the forest owner and the remainder to be
remitted into the communal budget.
2. People’s Committees of project-
implementing provinces shall promulgate a Regulation on management and use of
the value of timber products remitted into communal budgets, including the
value for setting up forest protection and development funds at district and
communal levels.
3. Organizations, households and
individuals are encouraged to invest their capital in planting protection
forests after the first cycle and exploit and use forest products under law and
current regulations. They are entitled to 100% of the value of products after
paying taxes (if any).
4. Forest owners that sub-contract
forests to households, individuals or village communities are entitled to a
share of the value of exploited and thinly pruned timber products at the ratio
specified in Article 11 of this Regulation.
Chapter III
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Article 9.
Rights of contractors
1. To exploit timber under contracts
according to Clause 5, Article 15 of Decision No. 178/2001/QD-TTg and current
regulations related to land and forest management and use, and enjoy benefits
under Article 11 of this Regulation.
2. To exploit firewood, bamboo and
non-timber forest products. To salvage dead and diseased trees under contracts
and Clauses 2 thru 5, Article 15 of Decision No. 178/2001/QD-TTg.
Article 10.
Obligations of contractors
1. To manage, protect, develop and
use forests under contracts, for proper purposes and under plans indicated in
contracts according to current regulations related to forest management and
protection. Based on the practical conditions, forest owners and contractors
shall sign contracts (made according to a set form in the attached Appendix).
2. If breaching contracts, thereby
causing damage to principals, to pay compensation for damage under law.
Article 11.
Share of the value of exploited and thinly pruned timber products between
contractors and forest owners (principals)
1. Based on the practical
conditions of each average or difficult site, People’s Committees of
project-implementing provinces shall decide on the ratios for sharing the value
of exploited timber products between contractors and principals according to
the following brackets of benefit sharing:
a. For timber products exploited
and thinly pruned from newly planted forests
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- For subsidiary trees:
The contractor enjoys 100% of
products exploited from subsidiary trees, alternately planted trees and thinly
pruned products, ensuring a forest coverage rate higher than 0.6 after pruning.
- For principal trees (indigenous
trees):
The value of timber products after
paying taxes shall be shared according to the following ratio:
80-90% for the contractor that has
received the project’s financial supports for forest planting, tending and
protection, and the remainder for the principal.
b. For timber products exploited
and thinly pruned from natural forests which are protected and zoned off for
tending
The contractor may exploit timber
by selectively logging trees with an exploitation intensity not exceeding 20%
when protection forests are allowed to be exploited according to the design
developed and submitted by the principal to a competent authority for approval.
The value of timber products after
paying taxes and expenses for exploitation and transportation of products to
places of sale shall be shared as follows:
- For impoverished forests: 95%
for the contractor and the remainder for the principal.
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- For forests with average or rich
reserves of over 100 m3/ha: From the time of being contracted to the
time of exploitation, 2% for the contractor and the remainder for the principal
every year.
2. The value of timber products
paid to the principal shall be used mainly for forest management, protection
and development and monitored and settled according to the State’s current
regulations.
3. Contractors that have invested
capital in forest planting, zoning off or restoration under contract or
agreement with the principals are entitled to 100% of the value of products
after paying taxes (if any).
Chapter IV
ORGANIZATION OF
IMPLEMENTATION
Article 12.
Responsibilities of People’s Committees of provinces
1.
To allocate forests to subjects according to law.
2.
To set criteria for average or difficult sites.
3.
To decide on the ratios for sharing the value of timber products between
subjects under this Regulation as suitable to local practical conditions,
specifically between:
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b. Contractors, forest owners and
the State.
c. People’s Committees of concerned
districts and communes.
4.
To promulgate documents guiding this Regulation to suit local practical conditions,
including reward and sanctioning regulations applicable in the course of forest
management, protection, development and use under current law.
5.
To guide district-level People’s Committees in using the value of timber
products from forests for setting up forest protection and development funds
under Decree No. 05/2008/ND-CP.
6.
To monitor developments of forest resources and report them to the
Ministry of Agriculture and Rural Development according to regulations. To perform the state management
responsibility under the law on forest protection and development.
Article 13.
Responsibilities of People’s Committees of districts
1.
To allocate forests to village communities, households and individuals
in localities under current law.
2.
To direct People’s Committees of communes having forests and concerned
agencies in forest management, protection, development and use. To guide People’s Committees of communes
in using the value of timber
products from forests for setting up forest protection and development funds
under Decree No. 05/2008/ND-CP.
3.
To use in a public, transparent and efficient manner economic benefits
from JBIC forests for setting up forest protection and development funds.
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1.
To disseminate this Regulation and relevant regulations and policies on
forest management, protection, development and use to concerned village
communities.
2.
To use in a public, transparent and efficient manner economic benefits
from forests for setting up forest protection and development funds under
Decree No. 05/2008/ND-CP.
APPENDIX
FOREST MANAGEMENT AND PROTECTION CONTRACT BETWEEN
ORGANIZATIONS HAVING JBIC FORESTS AND ORGANIZATIONS, HOUSEHOLDS, INDIVIDUALS OR
COMMUNITIES
(To Decision No. 109/2008/QD-BNN of November 11, 2008, of the Ministry of
Agriculture and Rural Development)
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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Name of organization:...
No.: .../HD-KBVR
MODEL
CONTRACT ON FOREST
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(Applicable to organizations,
households, individuals and village communities)
......................., Date:
...................................
Pursuant to the December 3,
2004 Law on Forest Protection and Development;
Pursuant to the Governments Decree No. 23/2006/ND-CP of March 3, 2006, on
implementation of the Law on Forest Protection and Development;
Pursuant to Decision No. .../2008/QD-BNN of... (date), of the Minister of
Agriculture and Rural Development, promulgating the Regulation on benefit
sharing applicable to JBIC forestation projects;
Based on the request for the contractual allocation of forests for management
and protection, and the plan to manage and protect JBIC forests in the
post-investment period already approved by the provincial-level Agriculture and
Rural Development Service (1);
Today,
on.................................................................. (date),
in................................................. (place),
We, including:
Party A (name of the organization
having JBIC forests) (2)
represented by
Mr./Mrs............................................................
Position........................
Address:......................................
Tel.:...................... Fax:......................... Email:.........
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represented by
Mr./Mrs.................................................................................................
Address: .......................
Identity card number: .................. issued on ................
(date), by the Police
Department
of................................ province
Tel.:.....................................
Fax:.................................
Email:...................................... ,
agree to sign a contract on forest
management and protection with the following terms:
Article 1. Areas and locations
of forest blocks contracted to Party B for management and protection
1. Forest area:
................(ha); type of forest (forest plantation, natural forest being
protection forest); current conditions of
forest:
In
lot................................... ,
compartment............................ , sub-area...........................................
(4)
2. Locations, boundaries and
characteristics of forest blocks are specified in attached tables and
maps (not printed herein).
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The term of the forest management
and protection contract is.................... years, counting
from...............
(date),
to.......................... (date)(5).
The contract shall be extended upon the expiration of the
above duration if, in the duration of contract performance, Party B strictly
observes all terms of the contract and wishes to extend it.
Article 3. Rights of Party A
To
receive from Party B................. % of the value of exploited timber after paying taxes and expenses for
exploitation and transportation of products to places of sale.
Article 4. Obligations of Party A
1.
To provide technical assistance on JBIC forest protection, management
and development to Party B.
2.
To contact competent state agencies for permission to harvest and
exploit JBIC forest products and to use JBIC forestland (when necessary).
3.
To promptly direct and allow Party B to harvest and exploit timber and
non-timber forest products from JBIC forests.
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To
advance capital and supplies to Party B when the latter so wishes for
exploitation and transportation of JBIC forest products. Party B shall refund
this advance after collecting money from the sale of forest products (a
separate contract on this advance will be
signed between the two parties).
Article 6. Rights of Party B
1.
To harvest non-timber forest products such as fruit, flowers, oil,
turpentine, rattan, bee honey, etc., in the process of forest management and
protection under law, current regulations and Party A’s guidance, and enjoy all
products after paying taxes (if any).
2.
To exploit dry dead, fallen and diseased trees in JBIC forests under
law, current regulations and Party A’s guidance, and enjoy the whole value of
products after paying taxes (if any).
3.
To fetch firewood in JBIC forests without damaging forests under law,
current regulations and Party A’s guidance, and enjoy the whole value of
products after paying taxes (if any).
4.
To exploit bamboo under law, current regulations and Party A’s guidance,
and enjoy the whole value of products after paying taxes (if any).
5.
To exploit timber under law, current regulations and Party A’s guidance,
and enjoy ...% of the value of exploited timber after paying taxes and expenses
for exploitation and transportation of products to places of sale.
6.
To enjoy 100% of the value of exploited timber after paying taxes (if
any) in case Party B has invested capital in planting, managing and exploiting
assorted trees as permitted by Party A.
7.
To use forestland for cultivating annual and perennial trees under
current law and as permitted by Party A.
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Article 7. Obligations of Party
B
1.
To manage, protect, develop and use JBIC forests under Party A’s
guidance, law and current regulations related to forest management and
protection.
2.
To get permission and follow Party A’s guidance before exploiting and harvesting
timber and non-timber forest products from JBIC forests or planting other trees
on JBIC forestland.
3.
To get permission of Party A if wishing to plant annual and perennial
trees on part of JBIC forestland.
4.
To monitor and supervise any damage to, and destruction, development and
use of JBIC forests for improper purposes due to subjective or objective causes
and promptly report thereon to competent state agencies and Party A.
5.
To rehabilitate and improve JBIC forest blocks damaged due to force
majeure causes as required and guided by Party A (a separate contract will be signed between Party A and Party B if
jobs are related to materials and labor)(7).
Article 8. Modification of
contract
1. Any changes or adjustments of this contract are subject
to written consent of the parties.
2. All changes or adjustments will be validated through signing a modified
contract or a memorandum of
understanding (contract annex).
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The contract may be terminated in the following cases:
(a) When the contractual term
expires and Party B does not wish to extend it.
(b) When Party B requests Party A
to terminate the contract. Party B shall notify in writing its request to
terminate the contract to Party A at least 6 months in advance.
(c) When Party A finds that Party
B is incapable of fulfilling all the contractual obligations.
(d) When Party A finds that Party
B fails to strictly follow Party A’s
guidance on forest management and protection.
If the contract is terminated in
case (c) or (d), Party A shall notify such in writing to Party B at least 6
months prior to the contract termination.
Article 10. Settlement of
disputes
The two parties undertake to settle
or clarify all disputes arising
during or beyond the process of contract performance through negotiations.
Disputes which cannot be settled
through negotiations shall be
settled under law and current regulations.
Article 11. Effect of contract
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This contract is made in ... copies
which are of the same legal validity. Each party shall keep one copy, and other
copies shall be sent to concerned
competent state management agencies under law.
The parties present here agree to sign
this contract.
Representative
of Party A
Signature
(Full name and seal)
Representative
of Party B
Signature
(Full name and seal)
Witness
(Signature, if any)
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(2) The principal: Specify the full
name and position of the representative.
(3) The contractor: If being a
household, write the name of the household owner and address of the place of
permanent residence registration; if being an individual, write the name of the
individual, address of the place of permanent residence registration, serial
number of identity card and account number (if any); if being an organization,
write the name of the organization, address of its head office, full name and
position of its representative and account number.
(4) Place and location of the
contracted forest block: Clearly indicate names of the commune, ward or
township; district, town or provincial city; and province or centrally run
city; sub-area, compartment and lot (if any). If many forest lots are
contracted, a list of details for each lot is required.
(5) Forest use duration, in figure
and words, according to the People’s Committee’s decision on forest allocation.
(6) Add other rights (if any)
indicated in the provincial People’s Committee’s decision and/or Party A’s
decisions. The right to receive remuneration for forest management and
protection from Party A may be added
if Party A finds it necessary.
(7) Add other obligations (if any)
indicated in the People’s Committee’s decision and/or Party A’s decisions.
(8) This article may be removed if Party A is incapable.