THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No. 150/2004/ND-CP
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Hanoi, July 29,
2004
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DECREE
PRESCRIBING THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN
THE FIELD OF MINERALS
THE GOVERNMENT
Pursuant to the Law on
Organization of the Government of December 25, 2001;
Pursuant to the Minerals Law of March 20, 1996;
Pursuant to the Ordinance on Handling of Administrative Violations of July 2,
2002;
At the proposal of the Minister of Natural Resources and Environment,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.-
Objects and scope of regulation
1. This Decree prescribes acts
of administrative violation in the field of minerals; sanctioning forms and
levels; sanctioning competence; sanctioning procedures and remedial measures.
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3. Administrative-violation
acts, which are governed by other legal documents, not prescribed in this
Decree but related to the field of minerals, shall be administratively
sanctioned according to the provisions of such legal documents.
Article 2.-
Sanctioned subjects
1. Domestic organizations and
individuals that commit acts of administrative violation in the field of
minerals.
2. Foreign organizations and
individuals that commit acts of administrative violation in the field of
minerals, except for cases where the international agreements which the
Socialist Republic of Vietnam has signed or acceded to contain different
provisions, the provisions of such international agreements shall apply.
Article 3.-
Principles and statute of limitations for sanctioning of administrative
violations
1. The principles for
sanctioning of administrative violations in the field of minerals shall comply
with the provisions of Article 3 of the Ordinance on Handling of Administrative
Violations.
2. The statute of limitations
for sanctioning of an administrative violation in the field of minerals is one
year counting from the date such administrative violation is committed; past
the above-said time limit, no sanction shall be imposed but the measures
prescribed in Clause 3, Article 6 of this Decree, must be applied to remedy the
consequences caused by such administrative violation.
Article 4.-
The time limit for being considered having not yet been sanctioned for
administrative violations
The time limit for being
considered having not yet been sanctioned for administrative violations in the
field of minerals is one year counting from the date the administratively sanctioned
organizations or individuals completely serve the sanctioning decisions, during
they do not relapse into violations.
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The extenuating and aggravating
circumstances to be applied upon the sanctioning of administrative violations
in the field of minerals shall comply with the provisions of Article 8 and
Article 9 of the Ordinance on Handling of Administrative Violations.
Article 6.-
Forms of sanctioning administrative violations and remedial measures
1. For each
administrative-violation act, the violating organizations or individuals shall
be subject to one of the following sanctioning forms:
a) Caution;
b) Fine.
2. Depending on the nature and
seriousness of administrative violations in the field of minerals, the
violating organizations or individuals may also be subject to one or more of
the following additional sanctioning forms:
a) Deprivation of the licenses;
b) Confiscation of material
evidences and means used for commission of administrative violations.
3. Apart from the sanctioning
forms prescribed in Clauses 1 and 2 of this Article, the organizations and
individuals committing administrative violations in the field of minerals may
also be subject to the application of one or more of the following remedical
measures:
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b) Forcible destruction of
articles which cause harms to human health, domestic animals and crops;
c) Forcible submission of reports
on basic geological surveys of mineral resources and mineral activities to
competent State bodies;
d) Forcible fill-up and leveling
of construction works; full satisfaction of the requirements on mineral
resources and environmental protection according to regulations;
e) Forcible registration with
competent agencies of plans on basic geological mineral resource surveys and
mineral activities;
f) Forcible payment for the use
of the State's data and information on mineral survey and/or prospection results;
g) Forcible mine designing;
appointment of mine executive directors according to regulations.
Article 7.-
Principles for determining fine levels
When the sanctioning form of
fine is applied, the specific fine level for an administrative-violation act in
the field of minerals shall be the average level of the fine bracket prescribed
in this Decree for such act; if the violation involves extenuating
circumstance(s), the fine level may be reduced but must not be lower than the
minimum level of the fine bracket; for violations involving aggravating
circumstances, the fine levels may be increased but must not be higher than the
maximum level of the fine bracket.
Chapter II
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Article 8.-
Violating the regulations on basic geological surveys of mineral resources
1. A fine of between VND 500,000
and 2,000,000 for acts of not registering basic geological mineral resource
survey plans with competent State agencies according to regulations.
2. A fine of between VND
2,000,000 and 10,000,000 for one of the following violation acts:
a) Conducting basic geological
mineral resource surveys without approving decisions of competent State bodies;
b) Failing to comply with the
basic geological mineral resource surveys already approved or permitted for
adjustment by competent State bodies;
c) Failing to submit reports on
basic geological mineral resource surveys results, geological samples as
provided for.
3. Remedial measures
a) Forcible registration of
basic geological mineral resource survey plans as prescribed, for violation
acts specified in Clause 1 of this Article;
b) Forcible submission of
reports on results of basic geological mineral resource surveys, geological
samples as prescribed, for violation acts stipulated at Point c, Clause 2 of
this Article.
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1. A fine of between VND
2,000,000 and 5,000,000 for one of the following violation acts:
a) Conducting mineral
prospections without permits as prescribed or with expired permits, except for
cases where dossiers of application for extension have been submitted according
to regulations;
b) Failing to submit reports on
propection results as provided for or submitting them later than schedule for
thirty (30) days or more as from the date the prospection permits terminate
their validity;
c) Moving out of prospection
areas geological or mineral samples with quantities and categories being at
variance with the propection permits granted by competent State bodies.
2. For violation acts prescribed
at Point b, Clause 1 of this Article, apart from fines, the violators must also
submit reports on prospection results as provided for.
Article
10.- Violating the regulations on mineral exploration
1. A fine of between VND 500,000
and 2,000,000 for acts of failing to notify the exploration plans to competent
State bodies.
2. A fine of between VND
2,000,000 and 10,000,000 for one of the following violation acts:
a) Failing to observe the regime
of periodical reporting to competent State bodies according to regulations;
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3. A fine of between VND
10,000,000 and 20,000,000 for one of the following violation acts:
a) Conducting mineral
prospection without permits as provided for or with expired permits, except for
cases where the dossiers of application for extension thereof have been already
submitted;
b) Failing to fill up and level
exploration works or filling up and leveling them not according to the
requirements on protection of mineral resources, protection of the environment
as provided for when the exploration permits have expired.
c) Moving out of exploration
areas geological and mineral samples with quantities and categories being at
variance with exploration permits granted by competent State bodies.
4. Additional sanctioning forms
and remedial measures
a) Deprivation of licenses, for
violation acts prescribed at Point c, Clause 3 of this Article if they involve
aggravating circumstances as provided for;
b) Forcible notification of the
exploration plans as prescribed, for violation acts prescribed in Clause 1 of
this Article;
c) Forcible submission of
reports on exploration results, for violation acts prescribed at Point b,
Clause 2 of this Article;
d) Forcible termination of
exploration activities; forcible fill-up and leveling of exploration works and
application of measures to protect the mineral resources and environment, for
violation acts prescribed at Points a and b, Clause 3 of this Article.
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1. A fine of between VND 500,000
and 2,000,000 for acts of failing to notify the exploitation plans, failing to
register the dates of commencing the capital construction of mines, the dates
of commencing production activities with the competent State bodies according
to regulations.
2. A fine of between VND
2,000,000 and 10,000,000 for one of the following violation acts:
a) Exploiting minerals without
mine designs; without executive directors of the mines as provided for;
b) Failing to make deposit as
security to ensure environmental and soil rehabilitation after exploitation and
mine closure according to regulations;
c) Failing to observe the
periodical report regime, making reports with wrong data on mineral
exploitation activities to competent State bodies according to regulations;
d) Exploiting minerals to the
utmost while the permits have expired, except for cases where the application
for extension thereof has been submitted according to regulations.
3. A fine of between VND
20,000,000 and 50,000,000 for one of the following violation acts of exploiting
minerals other than gold, silver, platium, germstones rare earth:
a) Exploiting minerals without
the prescribed permits or with expired permits, except for cases where the
application for extension thereof has been submitted according to regulations;
b) Failing to apply or
improperly applying measures after exploitation and mine closure according to
regulations;
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4. A fine of between VND
50,000,000 and 100,000,000 for one of the violation acts prescribed in Clause 3
of this Article for cases of exploiting minerals being gold, silver, platium,
germstone, rare earth.
5. Additional sanctioning forms
and remedial measures
a) Deprivation of permits, for
violation acts prescribed at Points a, b and c of Clause 2 of this Article when
aggravating circumstances are involved as provided for;
b) Forcible application of
relavant measures prescribed in Clause 3, Article 6 of this Decree to redress
the consequences caused by the violation acts prescribed in Clause 1; Points a,
b and c of Clause 2; Clauses 3 and 4 of this Article;
c) Confiscation of material
evidences and/or violation means, for violation acts prescribed at Point d of
Clause 2, Point a of Clause 3, and Clause 4 of this Article.
Article
12.- Violating the regulations on mineral processing
1. A fine of between VND 500,000
and 2,000,000 for failing to observe the periodical report regime, reporting
false data to competent State bodies according to regulations.
2. A fine of between VND
2,000,000 and 10,000,000, for acts of processing minerals other than gold, silver,
platium, germstone, rare earth without the prescribed permits or with expired
permits, except for cases where application for extension thereof has been
submitted according to regulations.
3. A fine of between VND
10,000,000 and 20,000,000 for acts prescribed in Clause 2 of this Article in
case of processing minerals being gold, silver, platium, germstone, rare earth.
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Article
13.- Other violations regarding mineral management
1. A fine of between VND 400,000
and 2,000,000 for acts of obstructing lawful activities of basic geological
mineral resource survey, mineral prospection and exploration.
2. A fine of between VND
10,000,000 and 20,000,000 for one of the following violation acts:
a) Concealing, destroying,
harming the quality of, or illegally buying, selling, transporting particularly
precious and rare geological samples or minerals according to law provisions on
minerals;
b) Failing to report or
untruthfully reporting on detected mineral spots to competent State bodies,
causing difficulties for management and protection of mineral resources;
c) Disclosing information on
mineral resources classified as State secrets but not seriously enough to be
examined for penal liability;
d) Obstructing minerals
examination or inspection activities of persons on duty and competent State
bodies;
e) Obstructing lawful activities
of mineral exploitation and processing.
3. Additional sanctioning forms:
Confiscation of particularly precious and rare geological samples or minerals,
which are illegally purchased, sold, transported.
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COMPETENCE, PROCEDURES
FOR SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF MINERALS
Article
14.- Competence of People's Committees of different levels to sanction
administrative violations in the domain of minerals
1. The commune-level People's
Committee presidents have the competence:
a) To serve caution;
b) To impose fines of up to VND
500,000;
c) To confiscate material
evidences, means used for commission of administrative violations, which are
valued at up to VND 500,000;
d) Forcible application of
measures to redress consequences caused by administrative violations.
2. The district-level People's
Committee presidents have the competence:
a) To impose caution;
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c) To confiscate material
evidences, means used for commission of administrative violations;
d) To confiscate illegally
exploited minerals;
e) To strip of the right to use
permits falling under their respective competence;
f) To force the application of
measures to redress consequences caused by administrative violations.
3. The provincial-level People's
Committee presidents have the competence:
a) To serve caution;
b) To impose fines of up to the
maximum level for domains prescribed at Points d and e of Clause 2, Article 14 of
the Ordinance on Handling of Administrative Violations;
c) To strip of the right to use
permits falling under their respective jurisdiction;
d) To confiscate material
evidences, means used for commission of administrative violations;
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f) To force the application of
measures to redress consequences caused by administrative violations.
Article
15.- Mineral inspectors' competence to sanction administrative violations
in the field of minerals
1. Mineral inspectors on duty
have the power:
a) To serve caution;
b) To impose fines of up to VND
200,000;
c) To confiscate material
evidences, violation means valued at up to VND 2,000,000;
d) To stop violation acts and
force the redress of consequences caused by violation acts.
2. The chief inspectors of the
provincial/municipal Natural Resources and Environment Services have the power:
a) To serve caution;
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c) To confiscate material
evidences, means used for commission of administrative violations;
d) To strip of the right to use
permits falling under their respective jurisdiction;
e) To stop violation acts, to
force the redress of consequences caused by violation acts.
3. The chief inspector of the
Ministry of Natural Resources and Environment has the power:
a) To serve caution;
b) To impose fines of up to VND
100,000,000;
c) To confiscate material
evidences, means used for commission of administrative violations;
d) To confiscate illegally
exploited minerals;
e) To strip of the right to use
permits falling under his/her jurisdiction;
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Article
16.- Authorization and principles for determination of competence to handle
administrative violations in the field of minerals
1. The authorization of handling
of administrative violations in the field of minerals shall comply with the
provisions of Article 41 of the Ordinance on Handling of Administrative
Violations.
2. The principles for determination
of competence to handle administrative violations in the field of minerals
shall comply with the provisions of Article 42 of the Ordinance on Handling of
Administrative Violations.
Article
17.- Procedures for sanctioning of administrative violations in the field
of minerals
1. The procedures and order of
sanctioning administrative violations in the field of minerals shall comply
with the provisions of the Ordinance on Handling of Administrative Violations and
Decree No. 134/2003/ND-CP of November 14, 2003 detailing the implementation of
a number of articles of the 2002 Ordinance on Handling of Administrative
Violations.
2. The sanctioning of
administrative violations in the field of minerals must be recorded in dossiers
and fully archived at the sanctioning agencies.
3. Organizations and individuals
subject to fines must pay fines according to the provisions of Articles 54 and
58 of the Ordinance on Handling of Administrative Violations.
4. When applying the form of
confiscating minerals, material evidences and/or violation means, the persons
having the sanctioning competence must strictly comply with the provisions of
Article 60 and Clause 1, Article 61 of the Ordinance on Handling of
Administrative Violations.
Article
18.- Execution of decisions to sanction and coercive execution of decisions
to sanction administrative violations in the field of minerals
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2. When applying measures to
force the executition of decisions on sanctioning of administrative violations
in the field of minerals, the competent agencies and persons must comply with
the law-prescribed order and procedures for coercion.
Chapter IV
COMPLAINTS,
DENUNCIATIONS, HANDLING OF VIOLATIONS
Article
19.- Complaints, denunciations
1. Organizations and individuals
sanctioned for administrative violations in the field of minerals or their
lawful representatives may lodge complaints about sanctioning decisions of
competent agencies or persons.
Citizens have the right to
denounce to competent State bodies illegal decisions on sanctioning of
administrative violations in the field of minerals.
2. The procedures for
complaints, denunciations and the settlement thereof shall comply with the
provisions of Article 118 of the Ordinance on Handling of Administrative
Violations.
Article
20.- Handling of violations committed by persons competent to sanction
administrative violations in the field of minerals
Persons competent to sanction
administrative violations in the field of minerals, who commit acts of
harassing for bribes, tolerating or covering up violators; failing to sanction
or improperly handling or sanctioning ultra vires shall, depending on the
nature and seriousness of their violations, be administratively disciplined or
examined for penal liability; if causing damage to the State, citizens and/or
organizations, they must pay compensations therefor according to law
provisions.
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Persons who are sanctioned for
administrative violations in the field of minerals, if committing acts of
resisting persons on duty, delaying or shirking the execution or other acts,
shall, depending on the nature and seriousness of their violations, be
administratively handled or examined for penal liability; if causing damage,
they must pay compensations therefor according to law provisions.
Chapter V
IMPLEMENTATION PROVISIONS
Article
22.- Implementation effect
This Decree takes implementation
effect 15 days after its publication in the Official Gazette.
It replaces the Government's Decree
No. 35/CP of April 23, 1997 prescribing the administrative violations in the
field of State management over minerals.
Article
23.- Implementation organization
The Ministry of Natural
Resources and Environment shall assume the prime responsibility for, and
coordinate with the concerned ministries and branches in, guiding and
organizing the implementation of this Decree.
The ministers, the heads of the
ministerial-level agencies, the heads of the Government-attached agencies and
the presidents of the People's Committees of the provinces and centrally-run
cities shall have to implement this Decree.
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ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Phan Van Khai