Nghị định 83/2020/NĐ-CP về sửa đổi Nghị định 156/2018/NĐ-CP hướng dẫn Luật Lâm nghiệp

THE GOVERNMENT --------	THE SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No. 83/2020/ND-CP	Hanoi, July 15, 2020

 

DECREE

AMENDMENTS TO THE GOVERNMENT’S DECREE NO. 156/2018/ND-CP DATED NOVEMBER 16, 2018 ON GUIDELINES FOR THE LAW ON FORESTRY

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Forestry dated November 15, 2017;

At the request of the Minister of Agriculture and Rural Development;

The Government hereby promulgates a Decree on amendments to the Government’s Decree No. 156/2018/ND-CP dated November 16, 2018 on guidelines for the Law on Forestry.

Article 1. Amendments to the Government’s Decree No. 156/2018/ND-CP dated November 16, 2018 on guidelines for the Law on Forestry

1. Article 41 is amended as follows:

“Article 41. Power and procedures for deciding forest repurposing guidelines

1. Power and procedures for decision by the National Assembly on the forest repurposing guidelines

a) The National Assembly shall decide the forest repurposing guidelines as prescribed in Clause 1 Article 20 of the Law on Forestry.

b) An application for decision on the forest repurposing guidelines is included in the application for approval for investment guidelines in accordance with the law on public investment or the law on investment. The former consists of: A report on explanation for or map of the status of the forest to be repurposed (with a scale of 1/2000 for the forest area of less than 500 ha and 1/5000 for the forest area of at least 500 ha), a report on conformity of the project with the land use planning or plan or the national forestry planning in accordance with the law on planning.

c) Regarding a project that has the application in Point b of this Clause and has its investment guidelines approved by the National Assembly, the procedures for forest repurposing are not required to be followed; if the application in Point b of this Clause is not available, regulations set out in Point b Clause 5 of this Article shall be complied with.

2. Power and procedures for decision by the Prime Minister on the forest repurposing guidelines

a) The Prime Minister shall decide the forest repurposing guidelines as prescribed in Clause 2 Article 20 of the Law on Forestry.

b) Any organization or individual that applies for forest repurposing shall submit an application to the Department of Agriculture and Rural Development of the province where the forest to be repurposed is located, whether in person or by post. The application includes:

- An application form for forest repurposing;

- A report on investment project proposal or a pre-feasibility study report enclosed with written appraisal given by the competent authority (regarding the project whose investment guidelines have been approved by the competent authority or in which investment has been decided by a competent authority, the following is required: the written approval for investment guidelines or the investment registration certificate issued by a competent authority in accordance with the Law on Investment; the written approval for investment guidelines or the investment decision issued by a competent authority in accordance with the Law on Public Investment; the investment license or the investment certificate issued by a competent authority);

- A document stating environmental impact assessment in accordance with regulations of the laws on environmental protection, investment and public investment;

- A report on explanation for or map of the forest status (with a scale of 1/2000 for the forest area of less than 500 ha and 1/5000 for the forest area of at least 500 ha), result of survey of the forest to be repurposed (forest area and forest reserves).

If the application is insufficient, within 03 working days from receipt of the application, the Department of Agriculture and Rural Development shall respond to the applicant in writing.

Within 05 working days from receipt of the valid application, the Director of the Department of Agriculture and Rural Development shall notify the provincial People’s Committee.

c) Within 20 working days from receipt of the valid application, the provincial People’s Committee shall appraise it. The appraisal shall focus on:

- Legal bases;

- Composition of the application;

- Necessity of the project;

- Location (lot, plot, subdivision, administrative division), result of forest survey (forest area and forest reserves); area by forest type (special-use forest, protection forest or production forest), origin (natural forest or plantation forest), site conditions (for natural forest), species of plants (for plantation forest);

- Compliance with relevant regulations of law;

- Conformity of the forest repurposing guidelines with the land use planning or planning or the national forestry planning in accordance with the law on planning;

- Socio – economic efficiency;

- A document stating environmental impact assessment in accordance with regulations of the laws on environmental protection, investment and public investment;

- Regarding a natural forest repurposing project, appraise whether the project is executed in the area where the natural forest is located because land is not available elsewhere.

If the appraisal result shows that the application is unsatisfactory, the provincial People's Committee shall respond to the applicant in writing and provide explanation.

d) Within 05 working days from the appraisal, the provincial People’s Committee shall submit a dossier to the Ministry of Agriculture and Rural Development. The dossier consists of: A statement issued by the provincial People’s Committee, applications specified in Points b and c of this Clause and other relevant documents (if any).

The statement shall contain at least:

- General information about the project;

- Necessity of the project;

- Location (lot, plot, subdivision, administrative division), result of forest survey (forest area and forest reserves); area by forest type (special-use forest, protection forest or production forest), origin (natural forest or plantation forest), site conditions (for natural forest), species of plants (for plantation forest);

- Compliance with relevant regulations of law;

- Conformity of the forest repurposing guidelines with the land use planning or planning or the national forestry planning in accordance with the law on planning;

- Socio – economic efficiency;

- Results of environmental impact assessment in accordance with regulations of the laws on environmental protection, investment and public investment;

- Regarding a natural forest repurposing project, a confirmation issued by the President of the provincial People's Committee that the project has to be executed in the area where the natural forest is located because land is not available elsewhere.

The President of the provincial People's Committee is responsible to the law for the adequacy, completeness and accuracy of the statement.

dd) If the dossier is insufficient, within 03 working days from receipt of the dossier, the Ministry of Agriculture and Rural Development shall respond to the provincial People’s Committee in writing.

Within 25 working days from receipt of the sufficient dossier specified in Point d of this Clause, the Ministry of Agriculture and Rural Development shall take charge and cooperate with the Ministry of Natural Resources and Environment and relevant ministries and central authorities in appraising the dossier; request the Prime Minister to consider deciding the forest repurposing guidelines.

The appraisal shall focus on:

- Compliance with regulations of law;

- Conformity of the forest repurposing guidelines with the land use planning or planning or the national forestry planning in accordance with the law on planning;

- Necessity of the project satisfying the criteria specified in this Decree.

- Document stating environmental impact assessment in accordance with regulations of the laws on environmental protection, investment and public investment;

If the appraisal result shows that the dossier is unsatisfactory to be submitted to the Prime Minister for decision on the forest repurposing guidelines, within 05 working days from appraisal of the dossier, the Ministry of Agriculture and Rural Development shall respond the provincial People’s Committee in writing.

The dossier submitted by the Ministry of Agriculture and Rural Development to the Prime Minister is composed of: A written request by the Ministry of Agriculture and Rural Development, written appraisal (minutes of Appraisal Council’s meeting or consolidated report on appraisal opinions given by relevant ministries and central authorities), documents specified in Point d of this Clause; documents of relevant ministries and central authorities (if any).

If the appraisal is carried out by seeking sending enquiries, the enquired ministries and central authorities shall give their written opinions to the Ministry of Agriculture and Rural Development within 10 working days.

3. Power and procedures for decision by a provincial People's Council on the forest repurposing

a) The provincial People’s Council shall decide the forest repurposing guidelines with respect to the area of forest not specified in Clause 1 and Clause 2 of this Article.

b) Any organization or individual that applies for forest repurposing shall submit an application to the Department of Agriculture and Rural Development, whether in person or by post. The application consists:

- An application form for forest repurposing;

- A report on investment project proposal or a pre-feasibility study report enclosed with written appraisal given by the competent authority (regarding the project whose investment guidelines have been approved by the competent authority or in which investment has been decided by a competent authority, the following is required: the written approval for investment guidelines or the investment registration certificate issued by a competent authority in accordance with the Law on Investment; the written approval for investment guidelines or the investment decision issued by a competent authority in accordance with the Law on Public Investment; the investment license or the investment certificate issued by a competent authority);

- A document stating environmental impact assessment in accordance with regulations of the laws on environmental protection, investment and public investment;

- A report on description or map of the forest map (with a scale of 1/2000), result of survey of the forest to be repurposed (forest area and forest reserves).

If the application is unsatisfactory, within 03 working days from receipt of the application, the Department of Agriculture and Rural Development shall respond to the applicant in writing.

Within 05 working days from receipt of the valid application, the Director of the Department of Agriculture and Rural Development shall notify the provincial People’s Committee.

c) Within 30 working days from receipt of the valid application, the provincial People’s Committee shall appraise it. The appraisal shall focus on:

- Legal bases;

- Composition of the application;

- Necessity of the project;

- Location (lot, plot, subdivision, administrative division), result of forest survey (forest area and forest reserves); area by forest type (special-use forest, protection forest or production forest), origin (natural forest or plantation forest), site conditions (for natural forest), species of plants (for plantation forest);

- Compliance with relevant regulations of law;

- Conformity of the forest repurposing guidelines with national land use planning or planning or the national forestry planning in accordance with the law on planning;

- Socio – economic efficiency; environmental impact assessment in accordance with regulations of the law on environment, investment and public investment.

If the appraisal result shows that the application is unsatisfactory, the provincial People's Committee shall respond to the applicant in writing.

d) Within 10 working days from the appraisal, the provincial People’s Committee shall submit a dossier to the People's Council of the same province for decision on the forest repurposing guidelines. The dossier consists of: A statement issued by the provincial People’s Committee, applications specified in Points b and c of this Clause and other relevant documents (if any).

The statement shall contain at least:

- General information about the project;

- Necessity of the project;

- Location (lot, plot, subdivision, administrative division), result of forest survey (forest area and forest reserves); area by forest type (special-use forest, protection forest or production forest), origin (natural forest or plantation forest), site conditions (for natural forest), species of plants (for plantation forest);

- Compliance with relevant regulations of law;

- Conformity of the forest repurposing guidelines with the land use planning or planning or the national forestry planning in accordance with the law on planning;

- Socio – economic efficiency; environmental impact assessment in accordance with regulations of the law on environment, investment and public investment.

4. For an investment project that involves forest repurposing, the forest repurposing guidelines are part of the written approval for project investment guidelines.

5. If a project has had its investment guidelines approved but the decision on investment guidelines has not specified the area of the repurposed forest, follow the instructions below:

a) If its forest repurposing guidelines are subject to the decision by the National Assembly, the procedures specified in Points b, c, d and dd Clause 2 of this Article shall be followed.

The Ministry of Agriculture and Rural Development shall draft a report and submit a consolidated dossier to the Government, which will request the National Assembly to decide the forest repurposing guidelines.

a) If its forest repurposing guidelines are subject to the decision by the Prime Minister, the procedures specified in Points b, c, d and dd Clause 2 of this Article shall be followed.

a) If its forest repurposing guidelines are subject to the decision by the provincial People's Council, the procedures specified in Points b, c and d Clause 3 of this Article shall be followed.”

2. Article 41a is added as follows:

 “Article 41a. Criteria for determining whether a project is eligible for natural forest repurposing

1. Projects of national importance prescribed in Article 7 of the Law on Public Investment 2019, projects whose investment guidelines have been approved by the National Assembly as prescribed in Article 30 of the Law on Investment 2014.

2. Projects serving national defense and security purposes, which are confirmed in writing by the Ministry of National Defense or the Ministry of Public Security; conform to the land use planning or plan; conform to the national forestry planning prescribed by the law on planning.

3. Urgent projects that require natural forest repurposing

a) Urgent projects in accordance with regulations of law on state of emergency; unscheduled or urgent projects serving natural disaster management, disease and fire prevention and control; urgent projects intended for handling issues that arise under the decisions of the National Assembly, Government or Prime Minister.

b) Urgent projects on construction of essential socio – economic infrastructure (traffic, irrigation, forest protection and development infrastructure), projects on electricity generation and establishment of electricity transmission systems intended for ensuring national energy security, construction and renovation of revolutionary sites/monuments and national historic – cultural sites/monuments. Projects on mineral exploration and mining and eco-tourism projects approved by the Prime Minister.

Upon approving the natural forest repurposing guidelines, a project must satisfy the following criteria:

- The investment project proposal is available in accordance with the law on investment and law on public investment;

- It is conformable with the national forestry planning or land use planning or plan approved by a competent authority in accordance with the law on planning;

- It is confirmed by the provincial People’s Committee (under the statement mentioned in Point d Clause 2 Article 41) that it has to be executed in the area where the natural forest is located because land is not available elsewhere. The President of the provincial People’s Committee is responsible to the Government, the Prime Minister and the law for the said written confirmation. The provincial People’s Council shall closely control the forest repurposing guideline proposal and organize forest repurposing within its province;

- It is not located within the strictly protected sub-zone of the special-use forest; does not repurpose the natural forest included in the special-use forest and protection forest planning to carry out minerals-related activities;

- An alternative afforestation plan is available in accordance with the law on forestry.

4. Projects whose investment guidelines have been approved or in which investment has been decided by a competent authority but which is suspended for review purpose pursuant to the Government Resolution No. 71/NQ-CP dated August 08, 2017; the following criteria must be satisfied:

- They are conformable with the national forestry planning or land use planning or plan approved by a competent authority in accordance with the law on planning;

- They are confirmed by the provincial People’s Committee (under the statement mentioned in Point d Clause 2 Article 41) that they have to be executed in the area where the natural forest is located because land is not available elsewhere. The President of the provincial People’s Committee is responsible to the Government, the Prime Minister and the law for the said written confirmation. The provincial People’s Council shall closely control the forest repurposing guideline proposal and organize forest repurposing within its province;

- They are not located within the strictly protected sub-zone of the special-use forest; do not repurpose the natural forests included in the special-use forest and protection forest planning to carry out minerals-related activities;

Where necessary, the Appraisal Council (established in Point dd Clause 2 Article 41 of this Decree) shall carry out an inspection or site survey of the area where natural forest is expected to be repurposed to execute the projects mentioned in Clauses 3 and 4 of this Clause.

5. The Government shall assign the Prime Minister to decide the natural forest repurposing guidelines with respect to the projects serving national defense and security; other urgent projects specified in Clause 2 Article 14 of the Law on Forestry, except for the projects subject to decision by the National Assembly on forest repurposing guidelines; applications and procedures are specified in the amended Clause 2 of Article 41 (Clause 1 Article 1 of this Decree).”

3. Article 41b is added as follows:

 “Article 41b. Regulations on area of forests included in planning for purposes other than forestry purpose

For the area of forests included in planning for purposes other than forestry purposes, if the competent authority has not decided the forest repurposing, regulations on repurposing of the equivalent types of forests shall apply prior to approving the planning pursuant to which such area of forests is given a purpose other than forestry purpose.”

Article 2. Implementation clause

This Decree comes into force from the date on which it is signed.

Article 3. Grandfather clauses

1. Any project that was issued by a competent authority with the decision on forest repurposing before January 01, 2019 in accordance with the Law on Forest Protection and Development and Government’s Resolution No. 71/NQ-CP dated August 08, 2017 but has not yet been completed shall continue to be executed; the alternative afforestation with respect to the area where the forest repurposing has not yet been completed shall comply with Article 21 of the Law on Forestry.

2. Regarding projects about which opinions have been given by ministries and consolidated and submitted by the Ministry of Agriculture and Rural Development to the Government for decision on the forest repurposing guidelines (in line with the procedures set out in Article 41 of the Decree No. 156/2018/ND-CP dated November 16, 2018) prior the effective date of this Decree, it is not required to re-follow the procedures and re-prepare the documents specified in this Decree.

Article 4. Responsibility for implementation

Ministers, heads of ministerial agencies, heads of Governmental agencies and Presidents of People’s Committees of provinces and central-affiliated cities and relevant organizations and individuals are responsible for the implementation of this Decree./.

 

ON BEHALF OF THE GOVERNMENT THE PRIME MINISTER Nguyen Xuan Phuc