Chương I Nghị định 158/2016/NĐ-CP: Quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Decree provides guidelines for the Law on Mineral No. 60/2010/QH12 on reimbursement of costs of geological baseline survey of mineral, costs of mineral exploration; periodical reports on mineral activities; mine managers; certification of owner’s equity; mineral planning; geological baseline survey of mineral; protection of interests of localities and inhabitants in the places where minerals are extracted, protection of minerals not been extracted; mineral areas and regulations on mineral activities; procedures for mineral operation licenses, approval for mineral deposits and mine closure.,,

2. This Decree amends Clause 2 of Article 3, Clause 1 of Article 6, Point b Clause 2 of Article 16; amends Clause 4 Article 15 of Decree No. 22/2012/ND-CP dated March 26, 2012 of the Government on auction of mining rights; amends Clause 2 of Article 3, Article 4, Article 5, Clause 3 of Article 6, Article 7 of Decree No. 203/2013/ND-CP dated November 28, 2013 of the Government on calculation method and charge for granting the mineral mining rights.

Article 2. Interpretation of terms

For the purposes in this Decree, the terms below are construed as follows:

1. Toxic mineral is a type of minerals containing one of the following elements: mercury, arsenic, uranium, and thorium, asbestos that when extracted and used can release into the environment the radioactive or toxic substances that exceed the level of Vietnamese technical standard.

2. Minerals accompanied is another type of minerals that is located in the mining areas, recoverable from extraction of main minerals as specified in licenses for mineral extraction, including other minerals in the waste dump of operating mines appeared at the time which the extraction and use of those minerals brings economic efficiency.

3. Crude minerals are products of mineral resources, extracted, no longer in its natural state, but not through beating, crushing, screening, grading or other activities to enhance their value after mining.

4. Mine capital construction is works being determined in a project for investment and design of mines, including: Construction of works (buildings, warehouses, wharves, etc.) used for the purposes of extraction; construction of transport routes to connect the mining areas and transport system of vicinity; preparation of initial premises for mineral extraction.

5. Mine manager is a person whose qualification satisfies the requirements prescribed in Clause 2 Article 62 of the Law on Mineral and he is appointed by an entity entitled to mineral extraction, or is a person entitled to extraction or the head of an organization entitled to extraction.

6. Deposits equivalent to charges for granting mineral extraction right are mineral deposits that are permitted in an extraction design, determined in an investment project or a technical and economic report and specified in a license for mineral extraction.

7. Area of geological baseline survey of mineral is area being determined in a project for geological baseline survey of mineral approved by a competent authority. In the area of geological baseline survey of mineral, one or multiple areas of minerals is/are likely to be found and evaluated.

8. Geological heritage is a part of the geological resources having outstanding value with respect to scientific, educational, aesthetic and economic aspects.

9. Force majeure events in mineral activities are events that are objective and unforeseeable; those are unavoidable or irreparable regardless of any measures adopted, resulting in an entity engaged in mineral operation failing to fulfill or incompletely fulfilling its obligations.

Article 3. Reimbursing the costs of geological baseline survey of mineral, costs of mineral exploration

1. The information of geological baseline survey of mineral that an entity must reimburse the costs when using it is the information for assessing the mineral potential.

2. The reimbursement of the costs to assess the mineral potential and explore the mineral is executed by the following principles:

a) In case the information on assessing the mineral potential and exploring the mineral possessed by the State, or an entity using the information for mineral exploration, extraction, or any other business purposes must reimburse the State the invested costs. The costs to be reimbursed with respect to the information for assessing the mineral potential are defined based on the quantity of work, work items performed in the proposed area of mineral exploration, including: Drilling, trenches, furnace, well, karotaz and samples used for determination of mineral quality in the above-mentioned works. The costs to be reimbursed with respect to information for mineral exploration are defined based on all work items performed in the proposed area of mineral extraction. Reimbursement unit prices shall be determined according to the current unit prices;

b) With regard to an extraction area under a license issued by a competent authority, the costs to be reimbursed shall be determined according to the mineral actuality, remaining deposits at the time of determination, and according to average cost by one resource unit (upon assessment of mineral potential) or one deposit unit (upon mineral exploration) in accordance with the rules prescribed in Point a of this Clause;

c) Any entity that is permitted to explore the mineral by fund from the State budget is not entitled to supply and transfer any information about the mineral exploration results to other entities except for competent authorities as prescribed by the Ministry of Natural Resources and Environment;

d) With regard to the information on assessing the mineral potential, mineral exploration invested by an entity, the reimbursement of invested costs is carried out on the principle of an agreement between the organization and individuals that have invested with the entities using the information and financial obligations to be fulfilled as prescribed by law.

With regard to information on assessing the mineral potential, mineral exploration invested by the entities in the area of mineral activities whose licenses are revoked, returned or their right of priority to propose the grant of the mining license is lost, if parties cannot reach an agreement by themselves of the costs to reimburse, an authority competent to grant licenses as prescribed in the clause 1, clause 2 Article 82 of the Mineral Law (hereinafter referred to as licensing authority) shall decide the invested costs to be reimbursed in the rule prescribed at Point a of this Clause;

dd) In case the entities have reimbursed the State budget for the amount of money invested for the mineral potential assessment, mineral exploration then the reimbursement of costs is carried out as prescribed at point d of this Clause.

3. The imbursement of costs of geological baseline survey of mineral, costs of mineral exploration is carried out in accordance with Point a Clause 2 of this Article before an entity applies for a mining license.

4. The Ministry of Finance shall take charge and cooperate with the Ministry of Natural Resources and Environment in guidance on methods of determining costs of mineral potential assessment, costs of mineral exploration to be reimbursed, procedures for reimbursement; regulations on collection, control, and use of costs of mineral potential assessment, mineral exploration invested by the State.

Article 4. Use of information on mineral potential assessment, mineral exploration and extraction

1. Any entity is entitled to use the information on the mineral exploration invested by itself or use the information on the mineral potential assessment, mineral exploration and extraction belonging to the State possession that have been reimbursed the costs as prescribed in the Article 3 of this Decree and entitled to transfer and inherit in accordance with the regulation of the law.

2. After 06 months from the day on which the mineral deposits are approved by a competent authority and upon expiry of the mineral exploration license, if an entity entitled to mineral exploration fails to apply for issuance of a mining license, the competent authority is entitled to provide the information on the mineral in that area for other entities for their use, except for force majeure events. The entity that use the information prescribed in Point d, Clause 2, Article 3 of this Decree must reimburse the exploration costs to any entity that has carried out any previous exploration.

Article 5. The state investment for mineral exploration and extraction

1. The State makes investment for exploring and exploiting some kinds of important mineral to serve the objectives of national defense and security or economic and social mission as prescribed in clause 5, Article 3 of the Law on mineral.

2. On the basis of the mineral planning approved, based on the demand serving the objectives of national defense and security or economic and social mission, the Ministry of Natural Resources and Environment take charge and cooperate with the Ministry of Planning and Investment, Ministry of Finance and the relevant ministries and agencies to evaluate and submit to the Governmental Prime Minister for the approval of the projects of mineral exploration and extraction performed by capital from the State budget.

Article 6. Management of toxic mineral

1. The Ministry of Natural Resources and Environment is responsible for investigating, assessing and determining the level of influence and proposing the solutions to prevent the impact of toxic minerals to the environment of the area and the local people where the toxic minerals exist; notifying the People’s Committee of province where the toxic minerals exist to organize the control and protection as prescribed.

2. The People’s Committee of province where the toxic minerals exist is responsible for executing the solutions to prevent the negative impacts of the toxic minerals to the environment of the area and the local people; organizing the control and protection of the unextracted toxic minerals in the local area as prescribed.

Article 7. Reports on mineral operating performance; reports on state management of minerals

1. A report on the mineral operating performance consists of:

a) A report on the mineral exploring performance;

b) A report on the mineral extracting performance.

2. A report on state management of minerals consists of:

a) Report on state management of minerals within the scope of a province or central-affiliated city (hereinafter referred to as province);

b) Report on state management of minerals nationwide.

3. Reporting:

a) Annual reports shall be made in accordance with Clause 1, Clause 2 of this Article. The reporting period begins from 01 January to 31 December inclusive of the reporting year;

b) Apart from the report specified in the Point a of this Clause, when required from a mineral authority, an entity permitted to engage in mineral operation must send an irregular report on the of mineral operation performance to such authority.

4. Responsibility for submitting reports:

a) Before every February 1, each entity permitted to engage in mineral operation must submit the report of the previous year as prescribed in Clause 1 of this Article to the Service of Natural Resources and Environment of the province where the mineral operation are conducted. With regard to an entity that conduct the mineral operation under the License which is granted under the competence of the Ministry of Natural Resources and Environment, that report is also submitted to the General Department of Geology and Minerals of Vietnam;

b) Before every February 15, the Service of Natural Resources and Environment will send a report of the previous year as prescribed at Point a clause 2 of this Article to the People’s Committee of province which forwards such report to the Ministry of Natural Resources and Environment thereafter and send copies of the report to the Service of Industry and Trade and the Service of Construction for cooperation purpose;

c) Before every March 15, the General Department of Geology and Minerals of Vietnam shall send a report of the previous year as prescribed at Point b, Clause 1 of this Article to the Ministry of Natural Resources and Environment which forward such report to the Prime Minister thereafter and send copies of the report to the Service of Industry and Trade, Service of Construction for cooperation purpose.

5. The Ministry of Natural Resources and Environment specifies forms of reports as prescribed in Clause 1, Clause 2 of this Article.

Article 8. Mine managers

1. A mine manager shall take responsibility for the administration of extraction in accordance with the mining license; initiate projects for investment and mine design approved in accordance with law on minerals; regulations on labor safety, environment protection in mineral extraction sector.

2. Upon an appointment of a mine manager, the mining entity shall notify a competent authority prescribed in Clause 4 of this Article of such appointment. The notification contains: The decision on appointment (except for the case that a mining person or the head of a licensed mining entity works as the mine manager as a part-time job); curriculum vitae of mine manager enclosed with originals of: Decision on appointment, curriculum vitae; copies of relevant professional degrees/certificates of mine manager.

3. Degrees of a mine manager prescribed in Point d, dd Clause 2 of Article 62 of the Law on Mineral include:

a) A bachelor's degree or equivalent in mine engineering and mine construction in terms of underground mining;

b) A bachelor's degree or equivalent in mine engineering, mine construction, and geotechnical engineering in terms of surface mining;

c) An associate's degree or equivalent in mine engineering, geotechnical engineering in terms of surface mining of nonmetallic minerals without using industrial explosives, or mineral as general building materials by manual methods.

4. The mining entity shall send a notification of appointment of mine manager prescribed in Clause 2 of this Article to General Department of Geology and Minerals of Vietnam in case of a mining license issued within competence of the Ministry of Natural Resources and Environment; or to the Service of Natural Resources and Environment in case of a mining license issued within competent of the People’s Committee of province.

Article 9. Owner’s equity of entities engaging in mineral operation

1. Regarding a newly-established enterprise, one of the following documents is required:

a) A record of capital contribution of founding shareholders in case of a joint-stock company, or of founding members in case of a multiple-member limited liability company; a company’s charter in case of a joint-stock company, a register of members in case of a multiple-member limited liability company;

b) A capital allocation decision of owner in case of a single-member limited liability company in which the owner is an organization.

2. Regarding an operating enterprise:

a) If the enterprise is established within 01 year up to the date on which an application for issuance of mineral exploration license or mining license, it is required to submit a copy of certificate of enterprise registration;

b) If the enterprise is established over 01 year up to the date on which an application for issuance of mineral exploration license or mining license, it is required to submit a copy of last annual financial statement.

3. Regarding a cooperatives or a union of cooperatives, one of the following documents are required:

a) Charter capital of cooperatives, union of cooperatives is total capital contributed or committed to contribute by members of cooperatives or union of cooperatives within a given time and specified in the charter of cooperatives, union of cooperatives as prescribed in the Law on Cooperatives;

b) Operating capital of cooperatives, union of cooperatives includes stakes of members of cooperatives, raised capital, accumulated capital, and funds of cooperatives, union of cooperatives; subsidies of the State, domestic and foreign entities; amounts given or donated and other legitimate revenues as prescribed.

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