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THE
MINISTRY OF FINANCE - THE MINISTRY OF INDUSTRY - THE MINISTRY OF SCIENCE,
TECHNOLOGY AND ENVIRONMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
126/1999/TTLT/BTC-BCN-BKHCNMT
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Hanoi,
October 22, 1999
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JOINT CIRCULAR
GUIDING THE
ESCROW DEPOSITING FOR ENVIRONMENTAL REHABILITATION IN MINERAL EXPLOITATION
ACTIVITIES
Pursuant to the March 20, 1996 Minerals Law;
Pursuant to the December 27, 1993 Law on the Environmental Protection;
Pursuant to the Government’s Decree No. 68/CP of November 1st, 1996
detailing the implementation of the Minerals Law;
The Ministry of Finance, the Ministry of Industry and the Ministry of
Science, Technology and Environment hereby guides the escrow depositing for
environmental rehabilitation in mineral exploitation activities as follows:
I. SUBJECTS AND PURPOSE OF ESCROW DEPOSITING
1. Subjects to the escrow depositing:
Organizations and individuals licensed to exploit minerals (as stipulated in
Article 15 and Article 16 of the Government’s Decree No. 68/CP of November 1st,
1996), before conducting the exploitation of minerals, are obliged to deposit a
sum of money or precious metal, gemstone or papers that can be valued in money
(hereinafter collectively referred to as escrow) in a blocked account at a
Vietnamese credit institution or a foreign credit institution operating in
Vietnam (referred collectively to as credit institution) to secure their
fulfillment of the obligation to rehabilitate the environment degraded by
mineral exploitation activities.
2. Purpose of the escrow depositing: The
depositing of an escrow into a blocked account at a credit institution aims to
secure the fulfillment of the obligation to rehabilitate the environment
degraded by mineral exploitation activities in accordance with the legislation
on mineral activities and the guidance of this Circular.
II. BASIS FOR AND METHOD OF DETERMINING THE
ESCROW AMOUNT:
1. Basis for determining the escrow amount: The
escrow amount shall be determined on the basis of the total estimate of
rehabilitation expenses, the exploitation duration stated in the feasibility
study report, the mine design and the environmental impact assessment report
already evaluated and approved by the competent agencies, as well as the
effective term of the mineral exploitation license.
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a/ Cases of one-time escrow depositing: For
cases where the exploitation duration stated in the feasibility study report on
mineral exploitation is less than three years, the one-time escrow depositing
is required. The escrow amount shall be equal to 100% (one hundred per cent) of
the total estimate of environmental rehabilitation expenses stated in the
feasibility study report, the mine design and the environmental impact
assessment report (excluding expenses for the production technology and
environmental treatment technology plan implemented right during the
exploitation process of the unit) already evaluated and approved by the
competent State agencies.
b/ Cases of multiple escrow depositing:
b.1/ For cases where the exploitation duration
stated in the feasibility study report on mineral exploitation is three years
or more, the multiple escrow depositing is permitted.
b.2/ The escrow amount (coded as A) shall be
determined according to the exploitation duration stated in the feasibility
study report, the exploitation duration stated in the granted mineral
exploitation license and the total estimate of environmental rehabilitation
expenses stated in the feasibility study report, the mine design and the
environmental impact assessment report already evaluated and approved by the
competent State agencies, and calculated according to the following formula:
A
=
Tg x Mcp
Tb
In which:
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Tg: The exploitation duration stated in the
granted mineral exploitation license (year).
Tb: The exploitation duration stated in the
feasibility study report, the mine design and the environmental impact
assessment report already evaluated and approved by the competent State
agencies (year).
Mcp: The total estimate of environmental
rehabilitation expenses stated in the feasibility study report, the mine design
and the environmental impact assessment report (excluding expenses for the
production technology and environmental treatment technology plan implemented
right during the exploitation process of the unit) already evaluated and
approved by the competent State agencies (Vietnam dong).
b.3/ The first escrow amount (coded as B) in
each case is as follows:
b.3.1/ For projects with the exploitation
duration stated in their granted mineral exploitation licenses (Tg) being less
than 10 years, the first escrow amount depositing shall be equal to 25% (twenty
five per cent) of the escrow amount (A) calculated according to the
above-mentioned formula.
b.3.2/ For projects with the exploitation
duration stated in their granted mineral exploitation licenses (Tg) being
between 10 years and less than 20 years, the first escrow amount shall be equal
to 20% (twenty per cent) of the escrow amount (A) calculated according to the
above-mentioned formula.
b.3.3/ For projects with the exploitation
duration stated in their granted mineral exploitation licenses (Tg) being 20
years or more, the first escrow amount shall be equal to 15% (fifteen per cent)
of the escrow amount (A) calculated according to the above-mentioned formula.
b.4/ The subsequent escrow amounts (coded as C) shall
be calculated on the basis of the remainder of the required escrow amount and
the exploitation duration stated in the granted mineral exploitation license
and according to the following formula:
C
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(A - B)
(Tg - 1)
c/ Cases of extension, addition of the
exploitation duration:
c.1/ In cases where the exploitation activities
during the extended or added duration exert no adverse environmental impacts
due to low exploitation capacity, no more escrow amount shall be required if so
approved by the agency in charge of State management over environmental
protection.
c.2/ In cases where the exploitation activities
during the extended or added duration exert adverse environmental impacts,
one-time escrow depositing shall be required according to the total estimate of
expenses for rehabilitating the environment degraded by extended or added
exploitation activities, already evaluated and approved by the competent State
agencies.
3. Time for escrow depositing
a/ For one-time escrow depositing and first
escrow depositing amount in multiple escrow depositing: The escrow depositing
must be completed before the date of commencement of the mineral exploitation
already registered by the organization or individual licensed to exploit minerals
with the competent State agency in accordance with the provisions of the
Minerals Law and documents guiding its implementation.
b/ For multiple escrow depositing (from the
second time on): The escrow depositing must be made annually (no later than December
31st every year), counted from the date of registration of the commencement of
mineral exploitation activities till the expiry of the exploitation duration
stated in the granted license. Subjects eligible for multiple escrow depositing
may choose the form of one-time escrow depositing for the entire mineral
exploitation duration stated in the granted mineral exploitation license.
c/ For cases of extension or addition of the
exploitation duration: The escrow depositing must be completed within 15 days
from the date of receipt of the written approval of the competent agency to
permit the extension of the exploitation duration.
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1. Right after granting the mineral exploitation
licenses, the agency competent to do so shall have to issue a notice requesting
the licensees to deposit an escrow at a credit institution as prescribed in
this Circular.
2. Within 30 days from the date of receipt of the
escrow depositing requesting notice, the licensees shall have to deposit an
escrow at a credit institution and inform in writing the following agencies
thereof:
- The People’s Committee of the province or
centrally-run city where they carry out mineral exploitation activities;
- The Ministry of Industry (the Vietnam Geology
and Minerals Department);
- The Ministry of Science, Technology and
Environment (the Environment Department).
3. Subjects obliged to make escrow deposits
shall have to pay for all expenses incurred from the escrow-depositing service
at the credit institution in accordance with the legislation on operation of
credit institutions.
4. All procedures for escrow depositing at a
credit institution shall comply with the guidance of the credit institution
where the escrow is deposited, and the provisions of the legislation on credit
institutions’ operations regarding the escrow depositing.
5. An escrow shall be deposited, paid and
accounted in Vietnam dong. In cases where there is a need to deposit an escrow
in a foreign currency, it shall be converted into Vietnam dong according to the
regulations of the credit institution where the escrow is deposited.
IV. ESCROW MANAGEMENT AND USE
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- To monitor, urge and inspect the escrow
depositing by mineral-exploiting organizations and individuals according to the
guidance of this Circular;
- To give consent for escrow-depositing
organizations or individuals to withdraw money for environmental rehabilitation
according to the guidance of this Circular;
- To decide to return the unused amount of the
deposited escrow to the escrow depositors as prescribed in the legislation on
minerals, environmental protection and according to the guidance of this
Circular.
2. Agencies that exercise the State management
over the environmental protection shall have the responsibility to evaluate and
certify:
- Cases of extension or addition of the duration
of those exploitation activities that cause no adverse environmental impacts;
- Organizations and individuals that have
fulfilled the environmental rehabilitation.
3. Escrow-depositing organizations and
individuals shall be entitled to withdraw their escrow after fulfilling their
environmental rehabilitation obligation, which has been evaluated and certified
by the agency exercising the State management over the environmental
protection.
4. In cases where a mineral-exploiting
organization or individual has deposited an escrow but failed to carry out
environmental rehabilitation or was bankrupt or dissolved, the competent agency
(defined in Article 9 of the Government’s Decree No. 68/CP of November 1st,
1996) shall decide to permit the use of the deposited escrow for environmental
rehabilitation and select (through bidding) a unit(s) to carry out
environmental rehabilitation with such escrow. The deposited escrow must be
used for the right purpose and in line with the content, work volume as well as
estimated expenses for environmental rehabilitation already evaluated and
approved by the competent State agencies. In cases where the deposited escrow
is not used up, the remainder shall be returned to the escrow depositors; if an
escrow depositor has been dissolved or bankrupt, it shall be fully remitted to
the State budget as prescribed in the legislation on management and handling of
properties when there is a decision to confiscate them into the State’s fund
and State ownership is established over such properties. The used amount of the
deposited escrow must be examined and settled according to the finance
legislation currently in force.
V. ORGANIZATION OF IMPLEMENTATION
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2. Credit institutions where mineral exploiters
deposit escrow to secure the environmental rehabilitation as prescribed in this
Circular shall be allowed to collect an escrow depositing service charge in
accordance with the legislation on credit institutions’ operations and have to:
- Complete such escrow-depositing procedures as:
accepting escrow deposits, opening blocked escrow accounts, making written
certification of the escrow depositing for escrow depositors, keeping documents
related to escrow depositing, repayment of deposited escrow… in accordance with
the provisions of the legislation on credit institutions’ operations and on
finance, and this Circular.
- Repay deposited escrow to units permitted to
withdraw deposited escrow as prescribed in this Circular.
3. For subjects obliged to deposit escrow as
prescribed in this Circular, if they fail to deposit escrow they shall not be
allowed to exploit minerals or shall have their mineral exploitation licenses
withdrawn under the provisions of the legislation on mineral activities.
4. Subjects that return their licenses or have
them withdrawn shall have to fulfill their escrow-depositing obligation as
prescribed in this Circular until the time their licenses are returned or
withdrawn. The return of the remainder of the deposited escrow used for
environmental rehabilitation to these subjects shall be effected after there is
certification of their completion of environmental rehabilitation or after
there is the official final settlement for the rehabilitation of environment
degraded by these subjects’ mineral exploitation activities.
5. The State agencies competent to evaluate and
approve environmental impact assessment reports shall have to coordinate with
the Ministry of Finance or the provincial Finance Services (if the agency that
evaluates and approves environmental impact assessment reports is the local
State management agency) in evaluating and approving the projected
environmental rehabilitation expenses in the environmental impact assessment
reports. If there are no estimated environmental rehabilitation expenses in an
environmental impact assessment report, the State agency competent to evaluate
and approve environmental impact assessment reports shall have to request the
subject applying for evaluation of the environmental impact assessment report
to add this content. The finance agency and the environmental impact assessment
report-approving agency shall have to coordinate with each other in managing,
checking and settling the used amount of deposited escrows.
6. All regimes of inspection, examination, commendation
and handling of violations of the provisions in this Circular shall comply with
the laws currently in force.
7. This Circular takes effects 15 days after its
signing. For subjects that were granted mineral exploitation licenses prior to
the effective date of this Circular which have not yet expired, if they have
the obligation to rehabilitate the environmental degradation caused by their
mineral exploitation activities, they shall have also to make escrow deposits
as prescribed in this Circular. All previous regulations of the Ministry of
Finance, the Ministry of Industry and the Ministry of Science, Technology and
Environment which are contrary to this Circular are now annulled. If, in the
course of implementation, any problems arise, the concerned units are requested
to report them directly to the Ministry of Finance, the Ministry of Industry
and the Ministry of Science, Technology and Environment for study and
supplement.
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FOR THE MINISTER OF INDUSTRY
VICE MINISTER
Le Huy Con
FOR THE MINISTER OF SCIENCE,
TECHNOLOGY AND ENVIRONMENT
VICE MINISTER
Pham Khoi Nguyen