Circular No. 102/2006/TT-BNN guiding certain provisions of Decree No. 135/2005/NĐ-CP dated November 8, 2005 of the Government on the assignment of agricultural land, production forest land, and water surface land for aquaculture in state-owned farms and state-owned forestry farms.

CIRCULAR

Guidelines for certain provisions of Decree No. 135/2005/NĐ-CP

dated November 8, 2005 of the Government on the assignment of agricultural land, production forest land, and aquaculture water surface land in state-owned farms and state-owned forestry farms,

production forest land, and aquaculture water surface land in state-owned farms and state-owned forestry farms

state-owned farms, state-owned forest farms

______________________

Pursuant to Decree No. 86/2003/NĐ-CP dated July 18, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Agriculture and Rural Development;

Pursuant to Decree No. 135/2005/NĐ-CP dated November 8, 2005 of the Government on the assignment of agricultural land, production forest land, and aquaculture water surface land in state-owned farms and state-owned forestry farms (hereinafter referred to as Decree No. 135/2005/NĐ-CP);

The Ministry of Agriculture and Rural Development guides the implementation of certain provisions of Decree No. 135/2005/NĐ-CP of the Government as follows:

Part I

GENERAL PROVISIONS

I. Parties to the Assignment and Subcontracting

1. Assignor: including:

1.1. State-owned farms, state-owned forestry farms, companies, and state-owned agricultural and forestry enterprises (collectively referred to as state-owned farms and state-owned forestry farms) that operate independently or are affiliated and have been assigned land or leased land; assigned or leased production forest land; assigned or leased land with water surfaces for aquaculture;

1.2. Management Boards of Protective Forests and Specialized Forests (collectively referred to as Management Boards) having production forest land which includes natural forests and planted forests;

1.3. Joint-stock companies where the State holds controlling shares and single-member limited liability companies converted from state-owned farms and forestry farms; centers, stations, and farms directly engaged in agricultural and forestry production and aquaculture using agricultural and forestry land.

2. Subcontractor: including:

2.1. Staff, workers, and officials currently working for the assignor;

2.2. Households with members currently working for the assignor or who have retired, lost their ability to work, or are receiving benefits and legally residing in the area where the assignor's land is located;

2.3. Households desiring to directly engage in agricultural, forestry, and aquaculture production and legally residing in the area where the assignor's land is located. When considering and resolving assignments for households under points 2.2 and 2.3, the assignor must prioritize households of ethnic minorities living in the locality, poor households of ethnic minorities with difficult living conditions, and those with the need and capacity to accept subcontracting.

When considering and resolving assignments for the subcontractors specified in points 2.2 and 2.3, the assignor should prioritize legal residents in the following order:

- Those legally residing in the commune where the assignor's land is located;

- Those legally residing in the district where the assignor's land is located;

II. Forms of Assignment and Subcontracting including:

1. Stable assignment according to crop cycles or business cycles.

2. Piecework assignment: assigning one or more stages in the planting, care, and harvesting process for perennial crops.

3. Assignment per season, year, or stable assignment according to mutual agreement between both parties for land with water surfaces for aquaculture.

III. Documents, Procedures, and Formalities for Assignment and Subcontracting

1. Documents for assignment and subcontracting land include:

1.1. Application for Land Assignment submitted by the subcontractor according to Model No. 02/ĐK issued together with this Circular.

1.2. Contract for Assignment and Subcontracting Land prepared by the assignor after reaching consensus with the subcontractor. In the contract for assignment and subcontracting land, the rights and obligations of the assignor and the subcontractor must be clearly stated according to Articles 3, 9, and 10 of Decree No. 135/2005/NĐ-CP. If the subcontractor is staff, workers, or officials, their salary derived from production results through subcontracting must be fully implemented according to regulations on salaries, social insurance, health insurance, labor protection, and recorded as production costs in the contract for assignment and subcontracting land.

The assignment contract shall be executed according to the model prescribed at Model No. 03/HĐ issued together with this Circular.

The contract model specifies general issues. Based on the specific conditions of the assignor who has been assigned or leased land, production forest land, or land with water surfaces for aquaculture, the parties may agree on specific contents in the contract to suit actual conditions. Before signing the contract, both parties are responsible for determining the total value of assets on the assigned and subcontracted land.

The contract will be adjusted and supplemented when the production and business plan of the assignor is re-approved or when state policies change.

1.3. Extract of the Map (for areas with official cadastral maps provided by the Natural Resources and Environment Authority or other maps approved for use by the Natural Resources and Environment Authority) or cadastral survey of the assigned and subcontracted land plot (or area) conducted by the assignor. The extract of the map and cadastral survey of the land plot or area are according to Model No. 04a/ĐĐ, 04b/ĐĐ issued together with this Circular. In places without maps, both parties shall agree on the boundaries marked by specific markers to determine the leased land on-site and draw it into a diagram kept in the lease file. 1.4. Record of Assignment and Subcontracting

concerning land, crops, livestock, and the current status of various types of forests and assets on the land (hereinafter referred to as the Record of Assignment and Subcontracting concerning land) is a record of the handover of the current status of land, crops, livestock, and the current status of various types of forests and assets on the land between the assignor and the subcontractor. During the on-site handover, both parties compare the current status with the extract of the map or the cadastral survey. If there are discrepancies between the site and these documents, they must be corrected according to the current status during the handover and both parties must sign to confirm. Corrections to the documents must be made on copies of the documents. Both the original and the corrected copies must be kept in the file. The Record of Assignment and Subcontracting concerning land is according to Model No. 05/BB issued together with this Circular.

1.5. Other related documents, texts, maps, and materials

concerning the assignment and subcontracting of land concerning the assignment and acceptance of land assignments (if any) shall be carried out jointly by both parties. In cases where these documents are prepared by one party, they must be confirmed by the other party. In cases of copies of documents, they must be made in accordance with the provisions of the law on making copies of documents.

2. Procedures and formalities for assigning and accepting assignments of land, crops, livestock, current status of various types of forests, and assets on land.

2.1 The assignment of land, crops, livestock, current status of various types of forests, and assets on land (hereinafter referred to collectively as "assignment") to the assignee shall be implemented according to the plan established by the assignor and submitted to the direct superior management authority for approval. The procedures and formalities for assignment shall be carried out as follows:

a) The assignor establishes a general assignment plan for all cases of assignment within their organization's scope; establishes an advisory council for assignment consisting of: the director or deputy director as chairman of the council, representatives of the assignee to review and propose cases of assignment and acceptance;

b) Based on the advisory council's opinions on assignment, the leadership of the assignor completes the assignment plan, publicly posts the list of cases of assignment at their organization's headquarters, and at the People's Committee Office of the commune where the land is located (according to Model No. 06/TB issued together with this Circular), and organizes the receipt of opinions from the assignees; completes the land assignment plan as the basis for implementing the signing of assignment contracts;

2.2 The assignment of land, crops, livestock, current status of various types of forests, and assets on land shall be carried out in accordance with the following provisions:

a) The assignee submits an application for assignment to the leadership of the assignor.

b) The assignor has the responsibility to examine the application for assignment, if it meets the conditions, notify the assignee and instruct relevant departments to carry out the extraction or measurement of the map (or sketch for areas without maps) of the land; prepare the assignment and acceptance records regarding land; prepare the land assignment contract and prepare the transfer of land and assets on-site;

c) Organize the transfer of land and assets on-site, sign the records of transfer and conclude the assignment contracts.

The time limit for completing the tasks in this section shall not exceed thirty (30) working days from the date the assignor receives the approval documents for the assignment plan to the date the assignee signs the assignment contract.

3. Management of assignment and acceptance files

a) Land assignment and acceptance files are numbered sequentially from one (1) to the end within one assignor.

Each assignor must establish one (1) cadastral book and one (1) record of changes for their unit. The model of the cadastral book, the record of changes, and the method of recording in the book are prescribed in Circular No. 29/2004/TT-BTNMT dated November 1, 2004, on guiding the establishment, amendment, and management of cadastral files. When establishing this system of books, the regulations on the Certificate of Land Use Right are replaced by the assignment contract regarding land.

b) In case the assignee loses the assignment and acceptance files or they become torn or blurred, they must immediately inform the assignor in writing. The letter must clearly state the reason for loss or damage. Within no more than five (5) working days, the assignor must provide the assignee with a certified copy of the acceptance file.

IV. Rights and Obligations of the Assignor

The rights and obligations of the assignor are stipulated in Article 9 of Decree No. 135/2005/NĐ-CP. The Ministry of Agriculture and Rural Development provides additional guidance on the following matters:

1. The assignor must specify concrete provisions in the contract regarding the construction of temporary shelters on assigned land: area, height..., ensuring convenience for dismantling and moving when required; strengthen inspections to promptly address violations.

2. When there is a change in the assignee as provided for in point d, Clause 2, Article 10 of Decree No. 135/2005/NĐ-CP, the assignor must promptly review and agree to sign a new contract and return or compensate for the assets invested on the land by the assignee.

3. Strengthen inspections and controls to promptly address violations. Upon discovering illegal transfer of assigned land, immediate measures and procedures as prescribed must be taken to recover the illegally transferred land area.

4. Develop and publicize the assignment plan openly and democratically before proceeding with the assignment.

V. Rights and Obligations of the Assignee

The rights and obligations of the assignee are stipulated in Article 10 of Decree No. 135/2005/NĐ-CP. The Ministry of Agriculture and Rural Development provides additional guidance on the following matters:

1. To be compensated and supported in accordance with the law when the competent state agency recovers the assigned land for use for national defense, security, national interests, public interest, economic development purposes as prescribed by the Land Law.

2. To comply with the assignor's regulations regarding the construction of temporary shelters on assigned land. If violated, the assignee must dismantle them at their own expense.

3. Not to transfer the assignment contract in any form without the written consent of the assignor. Upon discovery of unauthorized transfer, the assignee must comply with the cancellation of the contract, return the land, and compensate the assignor for damages.

Part II

ASSIGNMENT OF PRODUCTION FOREST LAND

The specific content of the assignment of production forest land is implemented in accordance with Chapter III of Decree No. 135/2005/NĐ-CP. The Ministry of Agriculture and Rural Development provides additional guidance on the following matters:

1. Logging and other forest products:

1.1 For natural production forests: The assignor must develop a forest harvesting plan before signing the contract with the assignee. The development, approval of the forest harvesting plan, logging design, and organization of logging and other forest products must be carried out in accordance with the Regulation on Logging and Other Forest Products (annexed to Decision No. 40/2005/QĐ-BNN dated July 7, 2005, of the Minister of Agriculture and Rural Development).

1.2. For planted production forests, the harvesting of timber and other forest products must also be carried out in accordance with Decision No. 40/2005/QĐ-BNN dated July 7, 2005, issued by the Minister of Agriculture and Rural Development on the regulations for harvesting timber and other forest products.

2. In areas implementing the forest development project pursuant to Decision No. 661/QĐ-TTg dated July 29, 1998, of the Prime Minister regarding the Project to Plant Five Million Hectares of New Forests (referred to as Project 661), the policies of Project 661 shall be applied during the implementation of contracts for the assignment of production forest land. Areas implementing other forestry programs or projects shall apply the policies of those programs or projects.

3. The ratio of division of the value of main forest products at the time of harvesting corresponds to the capital and labor each party has invested. The rights to benefits and obligations of the contractor shall be implemented according to Decision No. 178/2001/QĐ-TTg dated November 12, 2001, of the Prime Minister on the rights to benefits and obligations of households and individuals assigned, leased, or contracted forest land and forestry land, and Circular Joint No. 80/2003/TTLT/BNN-BTC dated September 3, 2003, of the Ministry of Agriculture and Rural Development and the Ministry of Finance guiding the implementation of this Decision.

4. Regarding the use and consumption of timber harvested from planted production forest land (points b and c, Clause 2, Article 15 of Decree No. 135/2005/NĐ-CP) are stipulated as follows:

4.1. Payment to the assignor by the product according to the contract;

4.2. The remaining portion shall be enjoyed by the contractor but must be sold to the assignor at the agreed price between both parties at the time of harvesting; if the assignor does not purchase, the contractor may freely consume or sell it.

The timing and method of harvesting the forest, as well as the division and consumption of over-quota products, must be agreed upon in writing by both parties and implemented according to the Forest Management Regulations promulgated together with Decision No. 186/2006/QĐ-TTg dated August 14, 2006, of the Prime Minister.

Part III

ORGANIZATION AND IMPLEMENTATION

State-owned agricultural and forestry enterprises, forest management boards, and forestry organizations currently implementing contracts under Decree No. 01/CP must review the current status of land use and all contracts for land assignment and land contracting signed in accordance with Decree No. 01/CP, and handle them as follows:

1. For areas of land that have been correctly assigned to the specified subjects as provided for in this circular, adjust the content of the contracting contract to be consistent and sign a new land use contracting contract in accordance with the spirit of Decree No. 135/2005/NĐ-CP dated November 8, 2005, of the Government.

2. For areas of land that have been assigned to contractors under Decree No. 01/CP but are not the specified subjects under Decree No. 135/2005/NĐ-CP, they shall be handled as follows:

2.1. Recover the entire area of land assigned in the following cases:

a. The contractor does not comply with the signed contract and uses the land for purposes other than intended;

b. The land area is transferred in violation of the law without the consent of the assignor;

2.2. Households whose land is recovered under Clause 2.1 shall be compensated or reimbursed for assets invested in the land according to the contracting plan applied as stipulated in Point d, Clause 2, Article 10 of Decree No. 135/2005/NĐ-CP for households returning land to the assignor.

- No compensation for the value of annual garden crops, but consideration will be given to supporting structures invested by the contractor according to the planning of the assignor (excluding temporary shelters). The recovery of short-term annual crop gardens shall be carried out immediately after the contractor harvests the products.

- For perennial gardens and planted forests including industrial trees, fruit trees, timber trees, leaf trees, and forest trees formed from the investment capital of individual households receiving the contract, when recovering the land, compensation shall be made based on the current value of the garden. The value of perennial gardens and planted forests is determined according to Decree No. 197/2004/NĐ-CP dated December 3, 2004, of the Government on compensation, support, and resettlement when the State recovers land, and Circular No. 116/2004/TT-BTC dated December 7, 2004, of the Ministry of Finance guiding the implementation of this Decree. The basis for re-evaluating the value of gardens and planted forests is the actual condition of the gardens and planted forests calculated according to the market price of gardens and planted forests in the local area at the time of recovery, while considering the actual investment value of the gardens and planted forests up to the time of recovery.

- Regenerated forest trees and trees planted from state budget funds (including from sources of forest development projects) shall be compensated at a level equivalent to the share of products as prescribed by the Ministry of Finance and the Ministry of Agriculture and Rural Development in Circular Joint No. 80/2003/TTLT/BNN-BTC dated September 3, 2003, guiding the implementation of Decision No. 178/2001/QĐ-TTg dated November 12, 2001, of the Prime Minister on the rights to benefits and obligations of households and individuals assigned, leased, or contracted forest land and forestry land.

2.3. Continue to assign land for the remaining period of the signed contract to households and individuals who have received contracts under Decree No. 01/CP when meeting the following conditions:

a. The household or individual directly participates in production on the contracted land;

b. Uses the land for its intended purpose and complies with the signed contract;

c. Adheres to the regulations of the local authorities where the contracted land is located; voluntarily returns excess land beyond the limit set by the assignor to ensure the average level in the area of the assignor;

d. In the locality where the assignor's land is located, the subjects eligible to receive contracts as stipulated in Clause 2, Article 2 of Decree No. 135/2005/NĐ-CP have already been allocated land or do not have a need to receive contracts for land from the assignor.

The review and handling of existing contracts and new contracts under Decree No. 135/2005/NĐ-CP of the Government must be completed before June 30, 2007.

This Circular takes effect fifteen days after its publication in the Official Gazette.

During implementation, if any difficulties arise, timely reports in writing must be submitted to the Ministry of Agriculture and Rural Development for coordination with relevant ministries, sectors, and People's Committees at all levels to consider and resolve. /\.