Chương II Thông tư 04/2024/TT-BTNMT: Kiểm tra việc chấp hành pháp luật về tài nguyên nước

Chapter II

AUDIT OF COMPLIANCE WITH LAWS ON WATER RESOURCES

Section 1. PRINCIPLES AND FORMS OF AUDIT

Article 5. Audit principles

1. Compliance with laws; democracy, openness, transparency, objectivity; proper authority and procedures; timeliness and accuracy.

2. Compliance with audit plans; adherence to directives of competent authorities or upon discovery of violations.

3. Focus and prioritization, prevention of overlap and repetition of scope, timeframe, and audited entities in the same field; minimizing disruption to normal operations of audited entities.

Article 6. Forms and details of audit

1. Scheduled audit is conducted according to the approved audit plan.  Audit plans include audit plans of the Ministry of Natural Resources and Environment, Ministry of Agriculture and Rural Development, Ministry of Industry and Trade, Ministry of Construction, Ministry of Health and audit plans of Provincial People's Committees.

2. Unscheduled audit is conducted when there is one of the following grounds:

a) There is direction from a competent regulatory agency;

b) Upon discovery of indications of violations of the law on water resources through monitoring and supervision information, data, and reports of organizations or individuals, including: monitoring and supervision information, data from the national water resource information system, database; management authority’s reservoir monitoring and operation system; periodical reports on water resource exploitation and use of organizations or individuals; information and data obtained during the appraisal of applications for issuance, extension, adjustment, and re-issuance of licenses to exploit water resources, practice underground water drilling, explore underground water, and documents on declaration of or adjustment to water resource license fees, or in the process of receiving declarations, registration for exploitation and use of water resources, and other information sources from relevant management authorities;

c) Upon discovery of indications of violations that cause depletion, exhaustion, or pollution of water resources; land subsidence or collapse; sudden and unforeseen artificial floods that severely impact the people's production and living activities;

d) Reports and petitions from relevant agencies, organizations, individuals (hereinafter referred to as entities), media, and other information sources.

3. Within the scope of their duties and powers, the Ministries and Provincial People's Committees specified in Clause 1 of this Article shall determine audit matters in annual audit plans in accordance with the Law on Water Resources.

Section 2. DEVELOPMENT OF PLANS AND CONDUCT OF AUDITS

Article 7. Development of plans and conduct of audits

1. The Inspectorate of the Ministry of Natural Resources and Environment (hereinafter referred to as the Ministry Inspectorate) shall take charge and coordinate with the Department of Water Resources Management to develop an audit plan in the field of water resources and integrate it into the annual audit plan of the Ministry of Natural Resources and Environment, and then submit it to the Minister of Natural Resources and Environment for approval.

On the basis of the approved audit plan as prescribed in Clause 1 of this Article, the Ministry Inspectorate  and Department of Water Resources Management shall audit compliance with the law on water resources; and then request competent authorities to take actions against audit results. When there is a ground as prescribed in Clause 2, Article 6 of this Circular, an unscheduled audit will be carried out as follows:

a) For a case specified in Points a and c, Clause 2, Article 6 of this Circular, based on the functions, tasks, powers, and assignments of the Minister of Natural Resources and Environment, the Ministry Inspectorate or the Department of Water Resources Management shall report it to the Ministry of Natural Resources and Environment to consider establishing an unscheduled audit team;

b) For a case specified in Points b and d, Clause 2, Article 6 of this Circular, the Department of Water Resources Management shall consider establishing an unscheduled audit team and report it to the Ministry of Natural Resources and Environment. Depending on the severity of the violation indication and to ensure timely prevention and minimize harm and consequences caused by the violation, the Department of Water Resources Management shall send a written request to the Department of Natural Resources and Environment of province where the audited entity of unscheduled audit is located to conduct a corresponding audit and report the audit results to the Department of Water Resources Management.

2. Ministry of Agriculture and Rural Development, Ministry of Industry and Trade, Ministry of Construction, and Ministry of Health, within the scope of their tasks and powers, shall:

a) Based on actual requirements and management needs, determine audit matters on water resources in the Ministry's annual audit plan and send it to the Ministry of Natural Resources and Environment for consolidation;

b) Direct affiliated units to conduct audit of compliance with the law on water resources on the basis of the approved audit plan according to regulations; coordinate with the Ministry of Natural Resources and Environment to audit compliance with laws on water resources within their scope of management.

3. The Provincial People's Committee shall develop and promulgate audit plans in the province or delegate the promulgation of audit plans to their affiliated units in accordance with the Law on Organization of Local Governments; direct the conduct of audits based on the approved audit plan according to regulations and conduct unscheduled audits.

4. The Department of Natural Resources and Environment conducts scheduled audits or unscheduled audits; conducts unscheduled audit sat the request of the Department of Water Resources Management and report the corresponding results to the Department of Water Resources Management.

Article 8. Review and addressing of overlap and duplication in audits

Every year, when conducting audit activities in accordance with this Circular, if overlap or duplication is detected, the audit agencies shall coordinate together to take actions according to regulations, ensuring that an operation of an organization or individual is only subject to an inspection agency or audit agency.  Overlaps and duplications are addressed according to the following principles:

1. If there is overlap or duplication between audit activities and inspection activities, inspection agency shall conduct the inspection.

2. If there are overlaps and duplications between the audit activities of the Ministry of Natural Resources and Environment and the audit activities of  the Ministry of Agriculture and Rural Development, Ministry of Industry and Trade, Ministry of Construction, Ministry of Health and Provincial People's Committees, the Ministry of Natural Resources and Environment shall conduct the audits.

3. If there are overlaps and duplications between the audit activities of  the Ministry of Agriculture and Rural Development, Ministry of Industry and Trade, Ministry of Construction, Ministry of Health and the audit activities of local governments, the Ministries shall conduct the audits.

Section 3. CONDUCT OF AN AUDIT AND ACTIONS AGAINST AUDIT RESULTS

Article 9. Procedures for conducting an audit

The procedures of conducting an audit corresponding to an audit decision are specified as follows:

1. Prepare for the audit.

2. Conduct the audit visit.

3. Complete the audit.

Article 10. Preparation for an audit

1. Collect, review, and clarify information of the audited entity about their operations, location, compliance with legal regulations on water resources, and inspections and audits conducted by competent authorities and corresponding conclusions (if any).

2. Make an audit decision:

a) Based on the audit plan or Clause 2, Article 6 of this Circular, the person with authority to make the audit decision (hereinafter referred to as audit decision maker) shall review and make a decision to audit single or multiple entities’ compliance with the law on water resources;

b) The audit decision includes the following:  b) The audit decision includes the following main contents: audited entity, audit matters; form of audit; audit duration; audit team composition; tasks of the audit team. The audit decision is made using Form No. 01 issued with this Circular;

c) The audit duration for one audit visit will be determined in the audit decision but must not exceed 10 days from the date of announcement of the audit decision.

3. Make an audit conduct plan:

a) Based on the audit decision, the audit team leader shall make an audit conduct plan and submit it to the audit decision maker for approval within no more than 5 working days from the date the decision is made for planned audit, no more than 3 working days from the date the decision is made for unscheduled audit;

b) The audit conduct plan is made using Form No. 03 issued with this Circular, including the following:  purposes, requirements, audited entity, audit matters, audit period, audit duration, locations, audit methods, auditing entity.

4. The audit team leader shall issue a written request to the audited entity to prepare a report on the audit matters according to the outline and send it to the audit team before announcing the audit decision. The outline that the audited entity has to report includes the following main contents: general information about the audited entity; overview of information about the water resource exploitation work; information on the compliance of legal regulations on water resources; difficulties, problems, suggestions and recommendations of the audited entity; list of documents for audit.

5. The audit team leader shall send a written announcement of the audit decision to the audited entity.

Article 11. Conduct of an audit visit

1. Announcement of audit decision:

a) Within no more than 15 days from the date of issuance of the audit decision, the audit team leader shall announce the audit decision to the audited entity. Where necessary, the audit team leader shall authorize the deputy team leader or team member to announce the audit decision.

For unscheduled audits, in case a violation is detected that requires immediate audit, the announcement of the audit decision can be done after making a violation report against the audited entity;

b) Participants in the audit decision announcement include:  the audit team; audited entity; local government representative (if necessary). the audit team leader or authorized person shall make a report with confirmation from the local government representative where the audit is conducted and keep conducting the audit;

c) The content of the announcement includes:  the audit team leader or authorized person announces the audit decision; the legal representative of the audited entity reports on the audit matters according to the outline requested by the audit team;

d) The announcement of the audit decision must be made in writing, signed by the representative of the audit team and the legal representative of the audited entity.  The report is made using Form No. 04 Appendix I issued with this Circular;

dd) Place of announcement of audit decision: at the place where the work is located; at the headquarters of the audited entity; at the headquarters of the audit decision maker; or at another location decided by the audit team leader.

2. Location and working time:

a) The audit team works at the location specified in Point dd, Clause 1 of this Article;

b) The audit team works with the audited entity, relevant entities during office hours.  If it is required to work outside of office hours, the audit team leader will decide specific time after discussing and agreeing with the audited entity and taking responsibility for his or her decision;

c) The location and working time of the audit team and the change of location and working time must be notified in advance to the audited entity and relevant entities.

3. Audit visit:

a) Audit visit is conducted to survey the places where the water resource exploitation work is located, where there are signs of violations, or where the audited entity is headquartered; collect  documents, and samples (if any) related to audit matters;

b) The audit visit is made into an on-site audit report using the Form No. 05 issued with this Circular.

4. Check, verify, and clarify information, documents and data through reviewing and comparing regulations and evaluating the compliance with legal regulations on water resources; direct explanation and provision of additional documents; explanation in writing and provision of additional documents.

In case it is necessary to audit, verify an incident, or clarify issues related to the incident, the audit team leader may invite a representative of the commune-level People's Committee where the incident occurred or other witnesses.

5. Address problems and violations through audit:

a) During the audit process, if a violation of the law on water resources is discovered, the audit team leader and audit team members must request the audited entity and related entities to immediately stop the violation.  The violation must be documented in a report as a basis for further actions according to Form No. 06 issued with this Circular;

b) When detecting an administrative violation, the competent person shall make an administrative offense report in accordance with law on actions against administrative violations. In case the administrative violation does not fall within the authority to make an administrative offense report, the audit team leader must make a report on the violation, and then forward it to the competent person and relevant regulatory agencies (if any);

c) For cases with complicated circumstances, involving many organizations, individuals, and fields that are at risk of causing serious consequences or beyond the authority and scope of the audit team, the audit team leader shall consider report it to the audit decision maker to adopt remedial measures promptly; where necessary, request the competent authority to conduct an audit; if there is any signs of crime, they are recommended to transfer case files and related documents to the investigation agency for review and decision in accordance with law;  

d) Results of audit of compliance with the law on water resources must be updated by the agency that conducted the audit into the national water resources database according to regulations.

6. At the end of the audit visit duration, the audit team leader shall notify the audited entity of the completion of the audit visit according to Form No. 07 issued with this Circular.

Article 12. Extension of audit duration

1. Extend the audit duration when one of the following cases occurs:

a) It is necessary to supplement and expand audited entities, audit matters, or scope of audit;

b) The audit matter is complex, requiring more time to verify and clarify information;

c) Additional time is needed to assess samples (if any) related to the audit matter;

d) Force majeure events arise.

2. The audit duration is extended once and the extension period must not exceed 10 days.  The audit extension duration decision is made using Form No. 02 issued with this Circular.

Article 13. Temporary suspension of audit

1. Temporarily suspend an audit when one of the following cases occurs:

a) There is a replacement of the team leader or at least 2 members of the audit team;

b) The audited entity has a change in legal status or legal representative and the audited entity has a written request to temporarily suspend the audit; in this case, the temporary suspension duration of the audit shall not exceed 10 days from the date of suspension notice.

2. er reporting to the audit decision maker, the audit team leader shall notify the audited entity of the temporary suspension of audit. Once the audit suspension period expires, the audit activities will continue.

Notice of temporary suspension of audit will be made using Form No. 08 issued with this Circular and must be sent to the audited entity and relevant entities.  The audit suspension period does not count towards the audit duration.

Article 14. Suspension of audit

During the audit process, the audit decision maker shall make an audit suspension decision according to Form No. 09 issued with this Circular when one of the following cases occurs:

1. The audited entity no longer exists.

2. The conclusion of the competent authority related to the audit matter indicates that the/audit period in the audit decision overlaps with the period that has been previously inspected/audited.

3. The audited entity is subject to criminal investigation or criminal prosecution.

4. The head of the superior agency issues a written request to suspend the audit.

Article 15. Completion of audit

1. No later than 10 days from the date of completion of the audit visit, audit team members are responsible for reporting to the audit team leader on the results of their performance of assigned tasks.

2. No later than 15 days from the date of receiving the audit team members’ report, the audit team leader shall prepare a report on the audit results of the audit team and submit it to the audit decision maker.  The audit result report is made using Form No. 10 issued with this Circular.

3. later than 10 days from the date of receiving the report from the audit team leader, the audit decision maker shall direct formulation of a draft notice of audit results.  The time to formulate a draft notice of audit results is 20 days from the date the audit decision maker assigns the formulation of the draft notice of audit results. The notice of audit results must clearly state the advantages and inadequacies in the compliance with legal regulations related to the audit matters; results of addressing existing inadequacies and violations (if any); recommendations for the audited entity.  The audit result notification is made using Form No. 11 issued with this Circular.

4. The audit decision maker shall solicit comments on the draft notice of audit results in writing if necessary.  The time for comments does not count towards the audit duration.

5. Within 15 days from the date of receipt of the draft notice of audit results, the audit decision maker shall sign and issue a notice of audit results.

Article 16. Oversight and facilitation of the corrective actions from notices of audit results

1. The agency that issued the audit result notice shall oversee, urge, and inspect the implementation of corrective actions from the audit result notice.

2. The Department of Natural Resources and Environment where the audited entity is located shall oversee, urge, and inspect the implementation of corrective actions from the audit result notice upon request of the agency that issued the audit result notice.

Section 4. RESPONSIBILITIES IN AUDIT OF COMPLIANCE WITH LAWS ON WATER RESOURCES

Article 17. Responsibilities of entities

1. Responsibilities of  the Ministry of Natural Resources and Environment, Ministry of Agriculture and Rural Development, Ministry of Industry and Trade, Ministry of Construction, Ministry of  Health and Provincial People's Committees: they shall, within the scope of their duties and powers, direct and lead the audits if relevant entities comply with laws on water resources as specified in the Law on Water Resources and relevant legal regulations.

2. Responsibilities of audit conducting entities:

a) Based on the approved audit plan, the head of the audit conducting agency shall fully consider the grounds in accordance with law when making an audit decision; take responsibility for their decisions before the law and superior leaders.  The audit decision maker shall direct and lead the audit team to conduct the audit in compliance with the principles specified in Clause 1, Article 6 of this Circular, ensuring that the audit is conducted as per the law;

b) The audit team leader, deputy audit team leader and audit team members must properly perform their assigned responsibilities and tasks and the audit decision details; do not provide unauthorized persons with information and documents related to audit matters and activities; proactively evaluate the situation and promptly report and propose any problems that arise during the audit; do not take advantage of the audit for personal gain, affecting ordinary operations or violating the legitimate rights and interests of the audited entity; clearly explain the relevant legal provisions governing the audit process to ensure the audited entity's proper understanding and compliance.

Article 18. Responsibilities of audited entities, entities related to audit matters

1. The audited entity shall provide complete and timely information and documents related to the audit matters; report and explain in accordance with law; abide by requests and recommendations of the audit team and the audit decision maker in accordance with law.

2. Entities related to the audit matters shall promptly provide full information and documents at the request of the audit team or the audit decision maker and have the rights according to relevant laws.