Decree No. 150/2004/ND-CP on administrative sanctions for violations in the field of minerals

DECREE

Rules on administrative penalties for violations in the mineral resources sector

__________________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Law on Minerals dated March 20, 1996;

Based on the Administrative Violation Handling Ordinance dated July 2, 2002;

At the proposal of the Minister of Natural Resources and Environment,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. OBJECTS AND SCOPE OF REGULATION

1. This Decree stipulates acts of administrative violations in the mineral resources sector; forms of penalty, levels of penalty; authority to impose penalties; procedures for imposing penalties and measures to remedy consequences.

2. Administrative violations in the mineral resources sector are acts that violate the provisions of laws on basic geological surveys of mineral resources (including creating geological maps, specialized geological studies, and assessing mineral potential); surveying, exploration, mining, processing of minerals, and protecting mineral resources committed intentionally or negligently by organizations or individuals but not constituting criminal offenses, but which must be subject to administrative penalties according to the Ordinance on Handling Administrative Violations and this Decree.

3. Acts of administrative violations within the scope regulated by other laws not provided for in this Decree but related to the mineral resources sector shall be subject to administrative penalties in accordance with the relevant regulatory legal documents.

Article 2. Subjects Subject to Penalty

1. Domestic organizations and individuals committing administrative violations in the mineral resources sector.

2. Foreign organizations and individuals committing administrative violations in the mineral resources sector; in cases where international treaties to which the Socialist Republic of Vietnam is a party provide different provisions, such provisions shall apply.

Article 3. Principles and Statute of Limitations for Administrative Penalties

1. The principles for imposing administrative penalties in the mineral resources sector shall be implemented in accordance with Article 3 of the Ordinance on Handling Administrative Violations.

2. The statute of limitations for administrative penalties in the mineral resources sector is one year, counted from the date the administrative violation was committed. If the deadline has passed, no penalty will be imposed, but measures prescribed in Clause 3 of Article 6 of this Decree shall be applied to remedy the consequences caused by the administrative violation.

Article 4. Time limit considered as not having been administratively penalized

The period during which it is considered that no administrative penalty has been imposed in the mineral resources sector is one year, counted from the date when the organization or individual who has been administratively penalized has fully executed the penalty decision without reoffending.

Article 5. Mitigating and Aggravating Circumstances

Mitigating and aggravating circumstances applied when imposing administrative penalties in the mineral resources sector shall be implemented in accordance with Articles 8 and 9 of the Ordinance on Handling Administrative Violations.

Article 6. Forms of Administrative Penalties and Measures to Remedy Consequences

1. For each act of administrative violation, the violating organization or individual must bear one of the following forms of penalty:

a) Warning;

b) Fine.

2. Depending on the nature and degree of the administrative violation in the mineral resources sector, the violating organization or individual may also be subject to one or more supplementary forms of penalty as follows:

a) Revocation of license.

b) Confiscation of objects and means used to commit administrative violations.

3. In addition to the forms of penalty prescribed in Clauses 1 and 2 of this Article, organizations and individuals committing administrative violations in the mineral resources sector may also be subject to one or more remedial measures as follows:

a) Compel restoration to the original state before the administrative violation occurred.

b) Compel destruction of items harmful to human health, animals, and crops.

c) Compel submission of reports on the results of basic geological surveys of mineral resources and mineral activities to competent state agencies.

d) Compel backfilling of construction works; fully comply with requirements for protecting mineral resources and the environment as prescribed.

đ) Compel registration with competent authorities regarding plans for basic geological surveys of mineral resources and mineral activities.

e) Compel payment for the use of data and information of the State on the results of mineral surveys.

g) Compel preparation of mine designs; appoint a mine manager in accordance with regulations.

Article 7. Principle for Determining Fine Amounts

When imposing a fine as a form of penalty, the specific level of fine for an act of administrative violation in the mineral resources sector is the midpoint of the fine range prescribed in this Decree for that act; if the violation has mitigating circumstances, the fine may be reduced but not below the minimum level of the fine range; for violations with aggravating circumstances, the fine may be increased but not above the maximum level of the fine range.

Chapter II

ADMINISTRATIVE VIOLATIONS IN THE MINERAL RESOURCES SECTOR, FORMS AND LEVELS OF PENALTY

Article 8. Violations of regulations on basic geological surveys of mineral resources

1. Fine from five hundred thousand (500,000) to two million (2,000,000) Vietnamese dong for failing to register the plan for basic geological surveys of mineral resources with the competent state agency as prescribed.

2. Fine from two million (2,000,000) to ten million (10,000,000) Vietnamese dong for one of the following violations:

a) Conducting basic geological surveys of mineral resources without a decision approving the plan from the competent state agency.

b) Implementing the project or plan for basic geological surveys of mineral resources not in accordance with the approved plan or adjustment permitted by the competent state agency.

c) Failing to submit the report on the results of basic geological surveys of mineral resources and geological samples as prescribed.

3. Measures to remedy consequences

a) Compel registration of the plan for basic geological surveys of mineral resources as prescribed for the violation stipulated in Clause 1 of this Article.

b) Compel submission of the report on the results of basic geological surveys of mineral resources and geological samples as prescribed for the violation stipulated in point c of Clause 2 of this Article.

Article 9. Violations of regulations on mineral surveys

1. Fine from two million (2,000,000) to five million (5,000,000) Vietnamese dong for one of the following violations:

a) Conducting mineral surveys without a permit as prescribed or with an expired permit, except in cases where an extension application has been submitted as prescribed.

b) Failing to submit the report on the results of the survey as prescribed or submitting late by thirty (30) days or more from the date the survey permit ceases to be effective.

c) Removing outside the survey area geological samples and minerals in quantities and types not in accordance with the survey permit issued by the competent state agency.

2. For the violation stipulated in point b of Clause 1 of this Article, in addition to the fine, there shall be a compulsory submission of the report on the results of the survey as prescribed.

Article 10. Violations of regulations on mineral exploration

1. Fine from five hundred thousand (500,000) to two million (2,000,000) Vietnamese dong for failing to notify the exploration plan to the competent state agency.

2. Fine from two million (2,000,000) to ten million (10,000,000) Vietnamese dong for one of the following violations:

a) Failing to implement the regular reporting regime with the competent state agency as prescribed;

b) Failing to submit the exploration result report as prescribed or submitting it late by thirty (30) days or more from the date the exploration permit ceases to be effective;

3. A fine of from ten million (10,000,000) to twenty million (20,000,000) dong for any of the following violations:

a) Conducting mineral exploration without a permit as prescribed or with an expired permit, except in cases where an application for extension has been submitted as prescribed;

b) Failing to carry out site restoration work for exploration projects or failing to comply with requirements for protecting mineral resources and the environment as prescribed when the exploration permit expires;

c) Removing geological samples and minerals outside the exploration area in quantities and types that do not conform to the provisions of the exploration permit issued by the competent state agency;

4. Additional forms of administrative punishment and measures to remedy consequences

a) Revoking the exploration permit for the violation stipulated in point c, Clause 3 of this Article in cases involving aggravating circumstances as prescribed;

b) Compelling the submission of an exploration plan as prescribed for the violation stipulated in Clause 1 of this Article;

c) Compelling the submission of the exploration result report for the violation stipulated in point b, Clause 2 of this Article;

d) Compelling the cessation of exploration activities; compelling the restoration of exploration works and requiring the implementation of measures to protect mineral resources and the environment for the violations stipulated in point a and point b, Clause 3 of this Article;

Article 11. Violation of regulations on mineral exploitation

1. A fine of from five hundred thousand (500,000) to two million (2,000,000) dong for failing to notify the exploitation plan, failing to register the start date of construction of the mine and the start date of production operations with the competent state agencies as prescribed;

2. A fine of from two million (2,000,000) to ten million (10,000,000) dong for any of the following violations:

a) Exploiting minerals without a mine design or without a mine director as prescribed;

b) Failing to deposit a bond to ensure environmental and land restoration after exploitation and closure of the mine as prescribed;

c) Failing to implement the regular reporting regime or reporting incorrect data on mining activities to the competent state agencies as prescribed;

d) Exploiting residual minerals when the permit has expired, except in cases where an application for extension has been submitted as prescribed;

3. A fine of from twenty million (20,000,000) to fifty million (50,000,000) dong for any of the following violations concerning the exploitation of minerals other than gold, silver, platinum, precious stones, rare earths:

a) Exploiting minerals without a permit as prescribed or with an expired permit, except in cases where an application for extension has been submitted as prescribed;

b) Failing to implement or implementing incorrectly post-exploitation and mine closure measures as prescribed;

c) Failing to pay the fee for using state information on survey and exploration results as prescribed when notified in writing by the competent state agency;

4. A fine of from fifty million (50,000,000) to one hundred million (100,000,000) dong for any of the violations stipulated in Clause 3 of this Article concerning the exploitation of gold, silver, platinum, precious stones, rare earths;

5. Additional forms of administrative punishment and measures to remedy consequences

a) Revoking the permit for the violations stipulated in point a, point b, and point c, Clause 2 of this Article in cases involving aggravating circumstances as prescribed;

b) Compelling the application of corresponding measures prescribed in Clause 3 of Article 6 of this Decree to remedy consequences caused by the violations stipulated in Clause 1; point a, point b, and point c, Clause 2; Clause 3 and Clause 4 of this Article;

c) Confiscating the objects and means used to commit the violations stipulated in point d, Clause 2; point a, Clause 3; and Clause 4 of this Article;

Article 12. Violation of regulations on mineral processing

1. A fine of from five hundred thousand (500,000) to two million (2,000,000) dong for failing to implement the regular reporting regime or reporting incorrect data to the competent state agencies as prescribed;

2. A fine of from two million (2,000,000) to ten million (10,000,000) dong for processing minerals other than gold, silver, platinum, precious stones, rare earths without a permit as prescribed or with an expired permit, except in cases where an application for extension has been submitted as prescribed;

3. A fine of from ten million (10,000,000) to twenty million (20,000,000) dong for the violations stipulated in Clause 2 of this Article concerning the processing of gold, silver, platinum, precious stones, rare earths;

4. Additional form of administrative punishment: Revoking the mineral processing permit for the violation stipulated in Clause 1 of this Article in cases involving aggravating circumstances as prescribed;

Article 13. Other violations in mineral management

1. A fine of from four hundred thousand (400,000) to two million (2,000,000) dong for obstructing legitimate geological investigation activities related to mineral resources, surveys, and explorations;

2. A fine of from ten million (10,000,000) to twenty million (20,000,000) dong for any of the following violations:

a) Concealing, destroying, damaging the quality, or illegally buying, selling, or transporting geological samples and particularly valuable and rare minerals as prescribed by laws on minerals;

b) Failing to report or reporting falsely to the competent state agency upon discovering mineral deposits, causing difficulties in managing and protecting mineral resources;

c) Disclosing information about mineral resources classified as state secrets but not reaching the level of criminal liability;

d) Obstructing mineral inspection and supervision activities carried out by public officials and competent state agencies;

đ) Obstructing legitimate mineral exploitation and processing activities as prescribed;

3. Additional form of administrative punishment: Confiscating geological samples and particularly valuable and rare minerals that have been bought, sold, or transported illegally;

Chapter III

AUTHORITY AND PROCEDURES FOR ADMINISTRATIVE SANCTIONS FOR VIOLATIONS IN THE MINERAL SECTOR

Article 14. Authority to impose administrative sanctions for violations in the mineral sector by People's Committees at all levels

1. The Chairperson of the People's Committee at the commune level has the authority:

a) To issue warnings;

b) Impose a fine up to 500,000 VND;

c) Confiscating objects and means used to commit administrative violations up to five hundred thousand (500,000) dong in value;

d) Compelling the implementation of measures to remedy consequences caused by administrative violations;

2. The Chairperson of the People's Committee at the district level has the authority:

a) To issue warnings;

b) To impose fines up to VND 20,000,000;

c) Confiscate evidence and means used to commit administrative violations;

d) Confiscating illegally mined minerals;

đ) Revoking the right to use permits within their jurisdiction;

e) Compelling the implementation of measures to remedy consequences caused by administrative violations.

3. The Chairperson of the People's Committee at the provincial level has the authority:

a) To issue warnings;

b) Impose the maximum fine for the areas specified in points d and đ of Clause 2, Article 14 of the Administrative Violation Handling Ordinance;

c) Revoke the right to use licenses within their authority;

d) To confiscate objects and means used for administrative violations;

đ) Confiscate illegally extracted minerals;

e) Compelling the implementation of measures to remedy consequences caused by administrative violations.

Article 15. The administrative violation penalty authority in the mineral sector of the Mineral Inspection Agency

1. Mineral inspectors performing official duties have the right:

a) To issue warnings;

b) To impose a fine up to two hundred thousand dong;

c) To confiscate objects and means used to commit violations with a value up to 2,000,000 VND;

d) To halt the violation, and compel the violator to remedy the consequences caused by the violation;

2. The Head of the Natural Resources and Environment Inspectorate of the Department has the right:

a) To issue warnings;

b) To impose fines up to VND 20,000,000;

c) Confiscate evidence and means used to commit administrative violations;

d) Revoke the right to use licenses within their authority;

đ) Halt the violation, and compel the violator to remedy the consequences caused by the violation;

3. The Head of the Natural Resources and Environment Inspectorate of the Ministry has the right:

a) To issue warnings;

b) Impose a fine up to VND 100,000,000.

c) Confiscate evidence and means used to commit administrative violations;

d) Confiscating illegally mined minerals;

đ) Revoking the right to use permits within their jurisdiction;

e) Halt the violation, and compel the violator to remedy the consequences caused by the administrative violation;

Article 16. Delegation of authority and principles for determining the authority to handle administrative violations in the mineral sector

1. The delegation of authority to handle administrative violations in the mineral sector shall be implemented according to the provisions of Article 41 of the Administrative Violation Handling Ordinance;

2. The principles for determining the authority to handle administrative violations in the mineral sector shall be implemented according to the provisions of Article 42 of the Administrative Violation Handling Ordinance;

Article 17. Procedures for handling administrative violations in the mineral sector

1. The procedures and steps for handling administrative violations in the mineral sector shall be carried out according to the provisions of the Administrative Violation Handling Ordinance and Decree No. 134/2003/NĐ-CP dated November 14, 2003 detailing certain articles of the 2002 Administrative Violation Handling Ordinance;

2. All administrative violations in the mineral sector that are subject to penalties must be recorded in a file and kept complete at the penalizing agency;

3. Organizations and individuals fined must pay the fine according to the provisions of Articles 54 and 58 of the Administrative Violation Handling Ordinance;

4. When applying the confiscation of minerals, objects, and means of violation, the authorized penalizing authority must comply with the provisions of Article 60 and Clause 1 of Article 61 of the Administrative Violation Handling Ordinance;

Article 18. Enforcement of penalty decisions and enforcement of penalty decision enforcement in the mineral sector

1. Organizations and individuals penalized under this Decree must strictly enforce the penalty decision of the agency or authorized person within the prescribed time limit. If organizations or individuals penalized do not enforce the penalty decision or intentionally evade enforcement of the penalty decision, they will be subject to enforcement of the penalty decision according to Article 66 of the Administrative Violation Handling Ordinance;

2. When applying measures to enforce penalty decisions in the mineral sector, agencies and authorized persons must follow the enforcement procedures stipulated by law;

Chapter IV

COMPLAINTS, REPORTS, AND HANDLING OF VIOLATIONS

Article 19. Petitioning and Reporting

1. Organizations and individuals penalized for administrative violations in the mineral sector or their legal representatives have the right to appeal against the penalty decision of the agency or authorized person;

Citizens have the right to report to state agencies with authority any penalty decisions in the mineral sector that violate the law;

2. The procedures for appeals and complaints and the resolution of appeals and complaints shall be carried out according to the provisions of Article 118 of the Administrative Violation Handling Ordinance;

Article 20. Handling violations by those authorized to impose administrative penalties in the mineral sector

Those authorized to impose administrative penalties in the mineral sector who engage in harassment, tolerance, or cover-up of violators; fail to impose penalties or impose penalties incorrectly or beyond their authority as prescribed shall be subject to administrative disciplinary action or criminal prosecution depending on the nature and severity of the violation; if causing damage to the State, citizens, or organizations, they must compensate according to the law;

Article 21. Handling violations against persons subject to administrative penalties

Individuals penalized for administrative violations in the mineral sector who commit acts of resisting public officials, delaying, evading compliance, or other violations shall be subject to administrative penalties or criminal prosecution depending on the nature and severity of the violation; if causing damage, they must compensate according to the law;

Chapter V

IMPLEMENTING PROVISIONS

Article 22. Effectiveness

This Decree shall take effect fifteen days after its publication in the Official Gazette.

This Decree replaces Government Decree No. 35/CP dated April 23, 1997 on penalties for administrative violations in the national management of minerals;

Article 23. Implementation

The Ministry of Natural Resources and Environment shall take the lead and coordinate with relevant ministries and sectors to guide and organize the implementation of this Decree;

Ministers, heads of ministerial-level agencies, heads of agencies under the Government, and Chairpersons of People's Committees of provinces and centrally-administered cities are responsible for enforcing this Decree.