DECREE No.35-CP OF APRIL 23, 1997 DEFINING SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS IN THE FIELD OF STATE MANAGEMENT OVER MINERALS
THE GOVERNMENT
Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Law on Minerals of March 20, 1996;
Pursuant to the Law on the Handling of Administrative Violations of July 6, 1995;
At the proposal of the Minister of Industry,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Scope and objects of application
1. Organizations and/or individuals committing acts of intentionally or unintentionally violating the regulations on the State management over minerals, including the regulations on: the mineral prospection, exploration, exploitation and processing, the protection of untapped mineral resources and basic geological survey of mineral resources, hereafter referred to as administrative violations in the field of State management over minerals, but not seriously enough for being examined for penal liability as prescribed by law, shall be administratively sanctioned in accordance with the provisions of the Ordinance on the Handling of Administrative Violations of July 6, 1995 and this Decree.
2. Acts of administrative violation of the regulations on the environmental protection in mineral activities shall be sanctioned in accordance with the Government�s provisions on administrative sanctions against violations in the protection of environment (Decree No.26-CP of April 26, 1996). Acts of administrative violation in ensuring the labor safety and hygiene in mineral activities shall be sanctioned in accordance with the Government�s provisions on administrative sanctions against the violations of the labor legislation (Decree No.38-CP of June 25, 1996).
Acts of administrative violation in the fields of storing, transporting, trading, exporting or importing minerals related to the administrative violations in the field of State management over minerals shall be sanctioned in accordance with the Government�s provisions on sanctions against administrative violations in the field of trade (Decree No.01-CP of January 3, 1996).
Acts of violating the obligation to pay taxes, fees and charges in mineral activities shall be sanctioned in accordance with the provisions of the legislation on taxes, fees and charges.
3. Foreign organizations and/or individuals committing acts of administrative violation in the field of State management over minerals on land territory, islands, internal waters, territorial waters, exclusive economic zones and continential shelf of the Socialist Republic of Vietnam shall also be sanctioned in accordance with the provisions of this Decree, except otherwise provided for by international treaties which Vietnam has signed or acceded to.
Article 2.- Principles and statute of limitations for sanctioning administrative violations in the field of State management over minerals
1. Principles for sanctioning administrative violations in the field of State management over minerals shall comply with the provisions of Article 3 of the Ordinance on the Handling of Administrative Violations.
2. The statute of limitations for sanctioning an administrative violation in the field of State management over minerals shall be two years from the date when the administrative violation is committed; beyond this timelimit, the violation shall not be sanctioned but shall be subject to measures provided for in this Decree to overcome consequences caused by that administrative violation.
3. The timelimit for being considered as having not been sanctioned for an administrative violation in the field of State management over minerals shall be one year from the date when the administratively sanctioned organization and/or individual has already executed the sanctioning decision or from the date when the sanctioning decision ceased to be effective and the violation is not repeated.
Article 3.- Application of the forms of sanction and other measures
1. If the sanction is a fine, the specific amount of fine imposed on the administrative violation in the field of State management over minerals shall be the average in the fine bracket provided for such violation; in cases where the violation involves extenuating factors, the fine may be reduced but must not be lower than the minimum in the fine bracket; if the violation involves aggravating factors, the fine may be increased but must not be more than the maximum of the fine bracket.
The extenuating and aggravating factors shall be determined in accordance with the provisions of Articles 7 and 8 of the Ordinance on the Handling of Administrative Violations.
2. Forms of additional sanctions and measures accompanying the main form of sanction shall be applied in accordance with the provisions of this Decree.
3. The mineral activity permits shall be withdrawn if the organizations and/or individuals commit acts of administrative violation in the field of State management over minerals as prescribed by the Law on Minerals and this Decree.
Chapter II
ACTS OF ADMINISTRATIVE VIOLATION IN THE FIELD OF STATE MANAGEMENT OVER MINERALS, FORMS AND LEVELS OF SANCTION
Article 4.- Violations of the regulations on mineral prospection
1. A warning or fine of 50,000 VND to 200,000 VND for one of the following acts:
a/ Conducting mineral prospection without permit as prescribed by law;
b/ Conducting mineral prospection when the prospection permit has already expired, except in cases where the application for the extension of the permit has been lawfully submitted and is under consideration;
c/ Conducting mineral prospection outside the area prescribed in the prospection permit;
d/ Conducting mineral prospection by using permit of another organization and/or individual;
e/ Conducting mineral prospection without informing the prospection plan to the State managing agencies as prescribed by law;
f/ Applying for the extension of the prospection permit after its expiry or its validity remains for less than 30 days, provided that the extension is allowed by the Ministry of Industry.
2. A fine of 500,000 VND to 1,000,000 VND for one of the following acts:
a/ Failing to submit the final report on the prospection results to the Ministry of Industry or submitting it 30 days or more later than the date when the permit becomes invalid;
b/ Bringing out of the prospected area specimens with the volume and types not in conformity with the evaluated prospection plan or contrary to the conditions prescribed in the permit.
3. Forms of additional sanctions and other measures applied to administrative violations defined in this Article:
a/ Stripping off the right to use (withdrawing) permit for acts stipulated in Point d, Item 1 of this Article;
b/ Forcing the announcement of the prospection plan as prescribed by law for acts stipulated in Point e, Item 1 of this Article;
c/ Forcing the submission of the final report on the prospection results for acts stipulated in Point a, Item 2 of this Article.
Article 5.- Violations of the regulations on mineral exploration
1. A fine of 200,000 VND to 500,000 VND for an act of failing to inform exploration plan to the State managing agencies as prescribed by law.
2. A fine of 500,000 VND to 1,000,000 VND for one of the following acts:
a/ Conducting mineral exploration without exploration permit as prescribed by law;
b/ Conducting mineral exploration after the expiry of the exploration permit, except in cases where the application for the extension of the permit has been lawfully submitted and is under consideration;
c/ Conducting mineral exploration outside the area prescribed in the exploration permit;
d/ Conducting mineral exploration without informing the exploration plan or failing to observe the regime of periodical reporting to the State managing agencies as prescribed by law;
e/ Applying for the extension of the exploration permit after its expiry or its validity remains for less than 30 days, provided that the extension is allowed by the Ministry of Industry.
3. A fine of 1,000,000 VND to 5,000,000 VND for one of the following acts:
a/ Failing to submit the final report on the results of exploration to the Ministry of Industry or submitting it 30 days or more later than the date when the permit becomes invalid;
b/ Failing, within the time-limit prescribed by law, to level and fill the exploration site or to fulfil all requirements on the protection of mineral resources and environment upon the expiry of the exploration permit;
c/ Bringing out of the explored area specimens with their volume and types not in conformity with the evaluated exploration plan or contrary to the conditions prescribed in the permit.
4. Acts defined in Points a, b, c and d, Item 2 and in Item 3 of this Article, if committed in an organized or repeated manner or committed by abusing one�s position or power may be fined up to 10,000,000 VND.
5. Forms of additional sanctions and other measures applied to acts of violation stipulated in this Article:
a/ Stripping off the right to use (withdrawing) permit for acts stipulated in Point d, Item 2 and for corresponding acts stipulated in Item 4 of this Article;
b/ Forcing the announcement of the exploration plan as prescribed by law for acts stipulated in Point d, Item 2 of this Article;
c/ Forcing the performance of tasks to overcome acts of violation stipulated in Points a and b, Item 3 of this Article.
Article 6.- Violations of the regulations on mineral exploitation
1. A fine of 200,000 VND to 500,000 VND for one of the following acts:
a/ Failing to inform the exploitation plan to the State managing agencies as prescribed by law;
b/ Failing to register the date of commencing the capital construction of a mine or the date of starting the mineral production, exploitation and processing;
c/ Failing to submit the mine�s design or to inform the plan on the mineral exploitation and processing tempo to the competent State agency as prescribed by law;
d/ Failing to declare the Executive Director of the mine to the State agency in charge of the management of minerals as prescribed by law.
2. A fine of 500,000 VND to 1,000,000 VND for one of the following acts:
a/ Conducting mineral exploitation without the Executive Director of the mine, except otherwise provided for by the Government;
b/ Failing to observe the regime of periodical reporting on mineral exploitation activities as prescribed by law or irregular reporting at the request of the competent State managing agencies;
c/ Extracting minerals to be used as common construction materials without permit or by using the expired permit or a permit of another organization and/or individual;
d/ Applying for the extension of the mineral exploitation permit after its expiry or its validity remains for less than 90 days, provided that the extension is allowed by the permit issuing agency.
3. A fine of 1,000,000 VND to 5,000,000 VND for one of the following acts:
a/ Conducting the exploitation of minerals (except for the valuable, rare and hazardous minerals) without mineral exploitation permit as prescribed by law;
b/ Conducting the exploitation of minerals (except for the valuable, rare and hazardous minerals) when the expired mineral exploitation permit has already expired, except in cases where the application for the extension of the permit has been lawfully submitted and is under consideration;
c/ Conducting the exploitation of minerals (except for the valuable, rare and hazardous minerals) outside the precsribed area or the exploitation of other minerals not prescribed in the exploitation permit.
4. A fine of 6,000,000 VND to 30,000,000 VND for one of the following acts:
a/ One of the acts stipulated in Item 3 of this Article, regarding the case of exploiting valuable, rare and hazardous minerals or the case of exploiting minerals which are not valuable, rare or hazardous and the violation is committed in an organized or repeated manner or committed by abusing one�s position or power;
b/ Failing, within the time-limit prescribed by law after the expiry of the exploitation permit, to perform or to fulfill the tasks of putting mines to safety, restoring land, environment and ecology and protecting the unexploited mineral resources.
c/ Failing to submit or submitting insufficiently and not in time the results of exploitation activities and other related documents to the State agency in charge of the management of minerals or failing to perform other tasks as prescribed by law regarding the closure of mines.
5. A fine of 30,000,000 VND to 100,000,000 VND for one of the acts stipulated in Item 3 of this Article, regarding the case of exploiting valuable, rare and hazardous minerals and the violation is committed in an organized or repeated manner or committed by abusing one�s position or power abusing one�s position or power.
6. Forms of additional sanctions and other measures applied to the acts stipulated in this Article:
a/ Forcing to perform tasks prescribed by law so as to overcome the consequences of acts of violation defined in Item 1, Points a and b, Item 2 and Points b and c, Item 4 of this Article;
b/ Confiscating the exploited minerals for the acts defined in Point c, Item 2, Item 3, Point a, Item 4 and Item 5 of this Article;
c/ Confiscating means used to commit the violation in accordance with the provisions of law for acts defined in Point a, Item 3 and other respective acts in the case of exploiting the valuable, rare and hazardous minerals;
d/ Stripping off the right to use (withdrawing) mineral exploitation permits for acts stipulated in Point d, Item 3 of this Article and for corresponding acts in the case of exploiting the valuable, rare and hazardous minerals.
Article 7.- Violations of the regulations on mineral processing
1. A fine of 200,000 VND to 500,000 VND for one of the following acts:
a/ Failing to observe the reporting regime or to inform the mineral processing plan to the competent State managing agencies as prescribed by law;
b/ Conducting the processing of minerals (except for the valuable, rare and hazardous minerals) when the mineral exploitation or processing permit has expired, except in cases where the application for its extension has been lawfully submitted and is under consideration;
2. A fine of 500,000 VND to 2,000,000 VND for mineral processing activities (except for the valuable, rare and hazardous minerals) without mineral exploitation or processing permit as prescribed by law.
3. A fine of 2,000,000 VND to 10,000,000 VND for one of the acts stipulated in Item 2 of this Article in the case of processing valuable, rare and hazardous minerals.
4. Stripping off the right to use (withdrawing) mineral processing permits for acts stipulated in Point b, Item 2 of this Article and for corresponding acts in the case of processing the valuable, rare and hazardous minerals.
Article 8.- Violations of other regulations on the management of minerals
1. A fine of 200,000 VND to 1,000,000 VND for one of the following acts:
a/ Obstructing the lawful basic geological surveys of mineral resources or mineral activities of other organizations and/or individuals;
b/ Obstructing or inciting others to obstruct the protection of the unexploited mineral resources, but not seriously enough for being examined for penal liability.
2. A fine of 2,000,000 VND to 10,000,000 VND for one of the following acts:
a/ Failing to remit or remitting insufficiently or not in time fees for the use of the State�s data and information on mineral resources in accordance with the provisions of law;
b/ Causing mineral losses in the process of building and/or liquidating drilling, digging and mining works serving basic geological surveys of mineral resources or the mineral prospection, exploration and exploitation activities;
c/ Causing mineral losses that exceed the permitted level (according to the design) in the mineral exploitation and processing activities;
d/ Using high-valued minerals as common construction materials, which are, under the provisions of the Ministry of Industry, not categorized as minerals used as common construction materials;
e/ Concealing, deevaluating or unlawfully trading particuparly valuable and rare geological and mineral specimens, which, under the Government�s provisions, must be sold or handed over to the State, but not seriously enough for being examined for penal liability;
f/ Failing to report or untruthfully reporting to the competent State agency of the discovery of mineral mines, that has adversely affected the protection of such mineral resources;
g/ Releasing information on mineral resources classified as the State�s secrets, but not seriously enough for being examined for penal liability;
h/ Obstructing the mineral examination and inspection activities conducted by competent State officials and agencies.
3. Forms of additional sanctions and other measures applied to the acts stipulated in this Article:
Temporarily suspending activities related to the violation, forcing to perform tasks prescribed by law to overcome consequences of the violation with regard to the acts defined in Points a, b, c and d, Item 2 of this Article.
Chapter III
COMPETENCE, PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE FIELD OF STATE MANAGEMENT OVER MINERALS
Article 9.- Competence of the People�s Committees of various levels to sanction administrative violations in the field of State management over minerals
1. The President of the People�s Committee of the commune, ward or township shall have the right to apply forms of sanction against administrative violations prescribed in Article 26 of the Ordinance on the Handling of Administrative Violations with regard to the violations of the provisions of this Decree according to the local administration�s competence for the State management over minerals, more concretely:
a/ To issue warnings;
b/ To impose fines of up to 200,000 VND;
c/ To confiscate material evidences and means valued at up to 500,000 VND which are used in the administrative violation;
d/ To force the compensation of up to 500,000 VND for damages caused by the administrative violation.
2. The President of the People�s Committee of the district or equivalent level shall have the right to apply forms of sanction against administrative violations prescribed in Article 27 of the Ordinance on the Handling of Administrative Violations (except for the right to strip off the right to use mineral activity permit) with regard to the violations of the provisions of this Decree according to the local administration�s competence for the State management over minerals, more concretely:
a/ To issue warnings;
b/ To impose fines of up to 10,000,000 VND;
c/ To confiscate material evidences and means used in the administrative violation;
d/ To confiscate the unlawfully exploited minerals;
e/ To force the compensation of up to 1,000,000 VND for damages caused by the administrative violation.
3. The President of the People�s Committee of the province or city directly under the Central Goverment shall have the right to apply forms of sanction against administrative violations prescribed in Article 28 of the Ordinance on the Handling of Administrative Violations (except for the right to strip off the right to use mineral activity permit granted by the Ministry of Industry) with regard to the violations of the provisions of this Decree according to the local administration�s competence for the State management over minerals, more concretely:
a/ To issue warnings;
b/ To impose fines of up to 100,000,000 VND;
c/ To strip off the right to use (withdraw) the mineral exploitation permit the grant of which falls under the competence of the provincial People�s Committee;
d/ To confiscate material evidences and means used in the administrative violation;
e/ To confiscate the unlawfully exploited minerals;
f/ To force the application of measures to overcome consequences caused by the administrative violation;
g/ To force the compensation of up to 1,000,000 VND for damages caused by the administrative violation.
Article 10.- Competence of the State agencies managing minerals to sanction administrative violations in the field of State management of minerals
1. Specialized minerals inspectors, while on duty, are entitled to exercise the rights stipulated in Item 1, Article 34 of the Ordinance on the Handling of Administrative Violations with regard to acts of administrative violation in the field of State management over minerals, labor safety and environmental protection in mineral activities, more concretely:
a/ To issue warnings;
b/ To impose fines of up to 200,000 VND;
c/ To confiscate material evidences and means valued at up to 500,000 VND used in the violation;
d/ To force the cessation of the violation, the overcoming of consequences caused by the violation.
2. The specialized mineral chief inspector, the head of the agency performing the function of specialized mineral inspection of the provincial/municipal Service of Industry are eligible for the rights stipulated in Item 2, Article 34 of the Ordinance on the Handling of Administrative Violations with regard to acts of administrative violation of the provisions of this Decree, more concretely:
a/ To issue warnings;
b/ To impose fines of up to 10,000,000 VND;
c/ To confiscate material evidences and means valued at up to 1,000,000 VND used in the violation ;
d/ To force the cessation of the violation and the overcoming of consequences caused by the violation;
e/ To force the compensation of up to 1,000,000 VND for damages caused by the administrative violation.
3. The specialized mineral chief inspector, the head of the agency performing the function of specialized mineral inspection of the Ministry of Industry are entitled to exercise the rights stipulated in Item 3, Article 34 of the Ordinance on the Handling of Administrative Violations with regard to acts of violating the provisions of this Decree, more concretely:
a/ To issue warnings;
b/ To impose fines of up to 20,000,000 VND;
c/ To confiscate material evidences and means used in the administrative violation;
d/ To confiscate the unlawfully exploited minerals;
e/ To for the cessation of violation, the ovecoming of consequences caused by the administrative violation;
e/ To force the compensation of up to 1,000,000 VND for damages caused by the administrative violation.
Article 11.- Authorization and principles for determining the competence for the handling of administrative violations in the field of State management over minerals
1. The authorization of the competence for the handling of administrative violations in the field of State management over minerals shall comply with the provisions of Article 36 of the Ordinance on the Handling of Administrative Violations;
2. The principles for determining the competence for the handling of administrative violations in the field of State management over minerals shall comply with the provisions of Article 37 of the Ordinance on the Handling of Administrative Violations;
Article 12.-
1. The procedures and order for sanctioning administrative violations in the field of State management over minerals shall comply with the provisions of the Ordinance on the Handling of Administrative Violations;
2. All sanctioned administrative violations in the field of State management of minerals must be filed in dossiers and kept fully at the sanctioning agency.
3. The fined organizations and/or individuals must pay fines at the place stated in the sanctioning decision. The collection of fines by the sanctioning person in any form is strictly forbidden.
4. If the confiscation of minerals, material evidences and violation means is applied, the competent sanctioning person shall have to abide by the provisions of Article 51 and Item 1, Article 52 of the Ordinance on the Handling of Administrative Violations.
Article 13.- The execution of sanctioning decisions and coercive execution of sanctioning decisions against administrative violations in the field of State management of minerals
1. The organization and/or individual administratively sanctioned under this Decree shall, within the prescribed time-limit, have to strictly abide by the sanctioning decision of the competent sanctioning agency or person. If the sanctioned organization and/or individual fails to execute the sanctioning decision or deliberately dodges the execution, they shall be forced to execute it in accordance with Article 55 of the Ordinance on the Handling of Administrative Violations.
2. When applying coercive measures for the execution of sanctioning decisions against administrative violations in the field of State management over minerals, the competent agency or person shall have to follow the coercive order and procedures as prescribed by law.
Chapter IV
COMPLAINTS AND DENUNCIATIONS ABOUT THE HANDLING OF VIOLATIONS
Article 14.- Complaints and denunciations about sanctioning decisions against administrative violations in the field of State management over minerals
1. Organizations and/or individuals sanctioned administratively in the field of State management over minerals (or their lawful representatives) shall have the right to complaint about the sanctions imposed on them.
2. Citizens have the right to file denunciations to the competent State agencies about administrative violations in the field of State management of minerals, that are committed by organizations and/or individuals as well as the violations by persons competent to sanction against administrative violations in the field of State management over minerals.
3. The procedures, order, time-limit and competence for making complaints or denunciations and settling the complaints and denunciations shall comply with the provisions of Articles 87, 88 and 90 of the Ordinance on the Handling of Administrative Violations of July 6, 1995 and the provisions of the Ordinance on the Settlement of Administrative Cases of May 25, 1996.
Article 15.- Handling of violations committed by the persons competent to sanction against administrative violations in the field of State management over minerals
If a person competent to sanction against administrative violations in the field of State management of minerals, extorts, tolerates, covers up violations, failing to handle or handle the violations not in time, improperly or not in accordance with his/her competence, appropriates, illegally uses fines, minerals, material evidences and violation means, he/she shall, depending on the nature and seriousness of his/her violation, be handled administratively or examined for penal liability; if any damage is caused, compensation must be made.
Chapter V
IMPLEMENTATION PROVISIONS
Article 16.- This Decree takes effect from July 1st, 1997. The earlier provisions on sanctioning administrative violations in the field of State management over minerals which are contrary to this Decree, are now annulled.
Article 17.- The Minister of Industry, the other Ministers, the Heads of the agencies attached to the Government, the Presidents of the People�s Committees of the provinces and cities directly under the Central Government shall have to implement this Decree.
On behalf of the Government
The Prime Minister
VO VAN KIET