Circular No. 63/2004/TT-BNN guiding certain contents of Decree No. 139/2004/NĐ-CP dated June 25, 2004 of the Government on administrative penalties for violations in the field of forest management, forest protection, and timber management.

CIRCULAR

OF THE MINISTRY OF AGRICULTURE AND RURAL DEVELOPMENT

Decision No. 63/2004/TT-BNN dated November 11, 2004

Guidelines on certain contents of Decree No. 139/2004/NĐ-CP dated June 25, 2004 of the Government on administrative penalties for violations in the field of forest management, forest protection, and forest product management

On June 25, 2004, the Government issued Decree No. 139/2004/NĐ-CP on administrative penalties for violations in the field of forest management, forest protection, and forest product management (hereinafter referred to as Decree No. 139/2004/NĐ-CP). To ensure uniform application throughout the country, the Ministry of Agriculture and Rural Development provides detailed guidance on certain provisions of Decree No. 139/2004/NĐ-CP as follows:

I. ON CERTAIN POINTS IN THE GENERAL PROVISIONS

1. Imported timber

Timber imported legally from abroad into Vietnam as stipulated in Clause 1, Article 1 of Decree No. 139/2004/NĐ-CP shall be understood as follows:

- Timber imported legally from abroad into Vietnam refers to various types of timber with completed customs procedures such as customs declaration forms at border gates, wood history records, and wood names established by foreign countries. Organizations and individuals directly importing timber must record the imported raw timber in the logbook of forest products upon completion of customs procedures, serving as a basis for supervision during processing and consumption according to regulations on inspection of transportation, production, and business of timber and forest products and the stamping regulations of the Ministry of Agriculture and Rural Development. Legally imported timber is not subject to administrative penalties under Decree No. 139/2004/NĐ-CP.

- When organizations and individuals directly importing timber sell it to other organizations or individuals (including re-export cases), they must comply with current Vietnamese laws; if there are violations, they will be administratively penalized according to specific circumstances as provided in Article 21 of Decree No. 139/2004/NĐ-CP.

2. Handling repeat offenses

Repeat offenses are defined according to the provisions of Clause 5, Article 2 of Decree No. 139/2004/NĐ-CP. To actively prevent and strictly handle repeat offenses in accordance with the Penal Code of 1999, the handling of repeat offenses is as follows:

a) Violations include: "Illegal logging," "Illegal transportation and sale of timber," "Burning, destroying forests, causing forest fires," "Hunting, killing, transporting, and selling rare wild animals and their products" (as stipulated in the Penal Code of 1999). A person who repeatedly commits any of these violations must be considered for criminal responsibility.

b) For other violations (excluding those specified in point a above), repeat offenses are considered aggravating circumstances for determining the level of administrative penalties accordingly.

3. Cases where one person commits multiple violations or multiple people commit one violation

a) One person committing multiple violations refers to a situation where a person is simultaneously found to have committed two or more violations as stipulated from Article 6 to Article 21 of Decree No. 139/2004/NĐ-CP. For example, a person who violates both the regulations on timber logging (Article 9) and firewood logging (Article 10) will be penalized for both violations.

b) Multiple people committing one violation refers to a situation where two or more people are found to be committing a violation as stipulated from Article 6 to Article 21 of Decree No. 139/2004/NĐ-CP at the time of discovery. Each violator bears responsibility for the damage caused by the violation.

In cases where some members of the same family or organization, at the request of the head of the family or organization, jointly cause common damage to forests or forest products, the head of the family or organization will be administratively penalized according to the regulations with aggravating circumstances for the common damage caused.

4. Cases not within the scope of administrative penalties

The following cases are not within the scope of administrative penalties but must be transferred for criminal prosecution:

a) Violations causing damage to wild plants or animals belonging to Group IA or IB as listed in the Catalogue of Rare Wild Plants and Animals issued together with Decree No. 48/2002/NĐ-CP, when the value of the plants or animals is 5 million dong or more.

b) Violations including: "Illegal logging," "Illegal transportation and sale of timber," "Burning, destroying forests, causing forest fires,” “Hunting, killing, transporting, and selling rare wild animals and their products" (these violations fall under forest-related crimes as stipulated in the Penal Code of 1999), which cause damage exceeding the maximum damage limit for each type of forest or forest product as stipulated in Articles 7, 9, 11, 13, 17, 18, and 19 of Decree No. 139/2004/NĐ-CP.

c) If a violator infringes upon two or more types of forests, two or more types of timber, or two or more types of wild animals, the degree of violation is determined based on the total fine amount for each type of forest, timber, or wild animal, resulting in a combined fine amount. If the total fine amount for the violation exceeds 30,000,000 dong, criminal prosecution must be initiated.

Example: Mr. Hoang Minh N illegally logged 12.00m³ of Class VI timber in production forests, and 4.00m³ of Class IIA timber in special-use forests.

Although the volume of each type of timber illegally logged by Mr. Hoang Minh N does not reach the threshold for transferring to criminal prosecution (less than 20m³ of Classes IV to VIII, according to point a, Clause 1, Article 9; less than 5m³ of Class IIA timber according to point c, Clause 3, Article 9 of Decree No. 139/2004/NĐ-CP), the provisional total fine amount at the average level (without mitigating or aggravating circumstances) for the aforementioned violations is 31,700,000 dong (exceeding 30,000,000 dong), so Mr. Hoang Minh N must be considered for criminal prosecution.

d) Repeat offenses as stipulated in sub-point a, point 2 of this section.

5. Handling cases where criminal proceedings have been initiated and transferred for administrative penalties.

a) In the case where the object harmed is wild plants or animals belonging to group IA, IB as specified in the List of Wild Plants and Animals issued together with Decree No. 48/2002/NĐ-CP, it shall be treated as if they were wild plants or animals belonging to group IIA, IIB.

b) In cases exceeding the administrative fine limit, or in cases of recidivism, the highest level of administrative fine for the corresponding violation shall be applied.

II. SOME OTHER ISSUES IN CONSIDERING AND HANDLING ADMINISTRATIVE VIOLATIONS

A- IDENTIFYING THE VIOLATION

1. In Chapter II of Decree No. 139/2004/NĐ-CP, from Article 6 to Article 21, violations subject to administrative penalties are stipulated. When drafting the administrative violation report and imposing penalties, the provisions on signs of violations as stipulated in Article 2 and specific provisions in Articles 6 to 21 must be referenced to accurately identify and record the nature of the violation, including the point, Clause, and Article number of Decree No. 139/2004/NĐ-CP where such violation is prescribed.

Example: Mr. Nguyen Van A cut down a Dau tree in a protective forest without authorization, with a volume of 2.3 cubic meters.³.

The violation committed by Nguyen Van A is the act of violating the regulations on logging timber, as prescribed in Point b, Clause 2, Article 9 of Decree No. 139/2004/NĐ-CP.

2. Regarding other violations:

a) On violations concerning design and logging of forests:

Article 8 of Decree No. 139/2004/NĐ-CP stipulates penalties for violations of regulations on designing and logging forests to ensure strict compliance with regulations on forest logging designs and actual logging activities.

- Penalties will be imposed on the logging design unit when the logging design incorrectly identifies the permitted forest lot according to the approved management plan, or when the volume of wood in the design exceeds the allowable deviation ratio compared to the actual volume upon inspection. According to the Forest Logging Regulations, the designer is responsible for the quality of the logging design, and the allowable deviation between the designed volume and the actual volume upon inspection should not exceed 10%. Therefore, the provisions at Clause 1 and Point b, Clause 2, Article 8 are uniformly applied as follows: If the actual volume of trees felled in the lot exceeds 15% of the designed volume, the logging design unit will be fined from VND 1,000,000 to VND 3,000,000. This fine applies to each logging lot.

- Penalties will be imposed on the logging unit: According to the Forest Logging Regulations, the logger must fell at least 90% of the marked trees in the lot. Therefore, the provisions at Point b, Clause 3 and Clause 4 are uniformly applied as follows: If the logging unit leaves more than 10% of the total marked trees in the lot, a fine of VND 4,000,000 to VND 6,000,000 will be imposed. This fine applies to each logging lot.

If the logging does not reach 90% of the total marked trees in the lot but achieves the designed volume without continuing to log, the logger will not be penalized.

b) On violations of regulations on managing and protecting wild animals:

Article 17 of Decree No. 139/2004/NĐ-CP stipulates administrative penalties for organizations and individuals who violate regulations on managing and protecting wild animals, which means that these organizations and individuals have hunted, traded, kept, or stored wild animals and their products contrary to state regulations.

c) On illegal transportation of forest products:

The driver of the vehicle will not be considered a violator and will not be subject to penalties under Article 19 if the driver is not the owner of the forest products and can prove that the owner of the transported forest products has legal procedures, and the driver has checked but did not discover that the forest products were of incorrect species, size, or volume as required.

B- APPLYING PUNISHMENT FORMS

1. APPLYING PRINCIPAL PUNISHMENTS

a) The warning penalty form prescribed in Clause 1 of Articles: Article 6, Article 12, Article 14, Article 15, Article 17, and Article 19 shall only be applied when the violation has not caused damage to the forest, forest products, or the individual or organization committing the violation, and there is one of the mitigating circumstances stipulated in Clause 2 of Article 3 of Decree No. 139/2004/NĐ-CP. The warning penalty is implemented through a simple penalty decision.

b) The monetary penalty form shall be applied to organizations and individuals who commit violations outside those mentioned in point a above, corresponding to the degree of damage caused by the administrative violation as stipulated in Articles 6 to 21. The amount of the monetary penalty is determined within the prescribed fine range or calculated by multiplying the value of the damaged goods by the corresponding fine rate.² forest, m³ timber, m

firewood or VND 100,000 per unit value of the violated forest product.

c) Where the decree specifies the maximum fine for a single administrative violation (Clause 2, 3 of Article 21), the authority with jurisdiction shall not issue a penalty decision exceeding the prescribed limit.

2- APPLYING CERTAIN ADDITIONAL PUNISHMENTS FOR VIOLATIONS

a) Handling of vehicles used for illegal transportation of forest products

According to Decree No. 139/2004/NĐ-CP, vehicles used in violation of administrative regulations shall not be confiscated in the following cases:

- The vehicle was seized or illegally used to commit the administrative violation: this refers to the situation where the legitimate owner's vehicle was seized illegally, or the person entrusted with managing the vehicle used it in violation of the law on usage regulations or did not comply with the agreement with the owner (including cases where the driver has aggravating circumstances).

- The violator has two or more mitigating circumstances and the volume of the violated forest products does not exceed twice the amount specified in Point g, Clause 3, Article 32 of Decree No. 139/2004/NĐ-CP.

In all cases where property is not confiscated, the property shall still be temporarily detained. The minimum detention period for the property is until the person violating the administrative regulation has completed the administrative penalty decision, and the maximum detention period is ninety days.

Apart from the aforementioned cases, all means of transport used to commit administrative violations shall be confiscated, including situations where the owner of the means of transport is simultaneously the driver, or the owner of the means of transport is simultaneously the cargo owner, or the owner of the means of transport agrees with the driver to use the means of transport to illegally transport various types of forest products, even if the quantity and value of each type of forest product violating the regulations are less than the threshold requiring confiscation of the means of transport, but the total quantity and value of the transported forest products exceed the threshold specified in point g, Clause 3, Article 32 of Decree No. 139/2004/NĐ-CP for the least rare category of forest products (among the illegally transported forest products).

Example: Mr. Nguyen Manh D is the owner of the vehicle and the driver of the truck transporting illegally 0.4 cubic meters³ of round wood group II and 0.7 cubic meters³ of round wood group V.

Although the quantity of each type of wood violating the regulations is less than the threshold specified in point g, Clause 3 of Article 32, the total quantity of the two types of wood is 1.1 cubic meters³, which exceeds the threshold for confiscating vehicles for ordinary wood from group IV to group VIII (1.0 cubic meters³), so Mr. Nguyen Manh D's vehicle was confiscated.

b) Revocation of license and certificate

The revocation of licenses and certificates as stipulated in Clause 2 of Article 5 and Clause 4 of Article 30 of Decree No. 139/2004/NĐ-CP shall be uniformly applied as follows:

- Authority to revoke licenses and certificates: The Director of the Forest Protection Department, the Head of the Forest Protection Sub-department, the Chairman of the People's Committee at the district level, and the Chairman of the People's Committee at the provincial level have the authority to revoke the use of logging permits, hunting gun permits, driving licenses, special transportation permits, and ordinary wildlife transportation permits, as well as business operation permits for hotels and restaurants.

- Within three days from the date of the administrative penalty decision, the person who issued the administrative penalty decision must notify in writing the issuing agency of the license or certificate about the application of the form of revoking the right to use the license or certificate.

3. Determining the authority to impose penalties

Administrative violations in the field of forest management, forest protection, and forest product management fall under the jurisdiction of the Forest Protection Agency and People's Committees at all levels. When other individuals or organizations discover administrative violations in the field of forest management, forest protection, and forest product management, they must report and transfer the violation case file to the Forest Protection Agency for handling or advise the competent authority to handle it.

If a violation case involves any main penalty, supplementary penalty, or remedial measure within the jurisdiction of a certain level, the Forest Protection Agency must transfer the case file and propose a handling method to the competent authority at that level for resolution. The authority imposing penalties may not divide a violation exceeding their jurisdiction into several smaller violations to impose multiple penalties in accordance with their own jurisdiction.

- In cases exceeding the jurisdiction of a Forest Protection Officer, the case shall be referred to the Forest Protection Station Chief, the Forest Protection Team Leader, or the Mobile Forest Protection Team Leader for resolution.

- In cases exceeding the jurisdiction of the Forest Protection Station Chief, the case shall be referred to the Forest Protection Team Leader (in cases where the station belongs to the Forest Protection Team) or the Forest Protection Sub-department Chief (in cases where the station belongs to the Forest Protection Sub-department) for resolution or to advise the competent authority to resolve it.

- In cases exceeding the jurisdiction of the Forest Protection Team Leader, the Forest Protection Team Leader, the Forest Product Inspection Team Leader, the Mobile Forest Protection Team Leader, or the Forest Protection Team in National Parks, the case shall be referred to the Forest Protection Sub-department Chief for resolution or to advise the competent authority to resolve it.

- In cases exceeding the jurisdiction of the Forest Protection Sub-department Chief, the case shall be referred to the Chairman of the People's Committee at the provincial level for resolution.

The Forest Protection Agency receiving case files transferred by other organizations or individuals for handling or advising the competent authority to handle them, if they find insufficient grounds to process according to the law, have the right to cooperate or request the transferring organization or individual to continue supplementing the case file. Legal departments of Forest Protection Teams, Forest Product Inspection Teams, Mobile Forest Protection Teams, and Forest Protection Sub-departments are responsible for advising their leadership in reviewing and handling violation cases.

C- List of Forms

The Ministry of Agriculture and Rural Development guides the system of forms used in handling administrative violations in the field of forest management, forest protection, and forest product management (including specific forms attached) includes:

1. Administrative Violation Record in the Field of Forest Management, Forest Protection, and Forest Product Management;

2. Temporary Detention Record of Evidence and Means of Transport Involved in Administrative Violations;

3. Administrative Procedure Search Record of Individuals;

4. Administrative Procedure Search Record of Transport Vehicles and Objects;

5. Administrative Procedure Search Record of Places Concealing Evidence and Means of Transport Involved in Administrative Violations;

6. Inspection Record;

7. Verification Record;

8. Statement Record;

9. Handover Record of Evidence and Means of Transport Involved in Administrative Violations;

10. Confirmation Record of Timber Stamped with the Forest Protection Hammer Seal;

11. Immediate Violation Record;

12. Destruction Record of Evidence and Means of Transport Involved in Administrative Violations;

13. Case File Transfer Record;

14. Decision on Temporary Detention of Individuals Under Administrative Procedures;

15. Decision on Temporary Detention of Evidence and Means of Transport Involved in Administrative Violations;

16. Decision on Administrative Procedure Search of Individuals;

17. Decision on Administrative Procedure Search of Places Concealing Evidence and Means of Transport Involved in Administrative Violations;

18. Decision on Simple Administrative Penalty Procedures;

19. Decision on Administrative Penalties;

20. Decision on Forced Execution of Administrative Penalty Decisions;

21. Decision on Remedial Measures for Administrative Violations in Cases Where Administrative Penalties Are Not Applied;

22. Decision on Confiscation of Evidence and Means of Transport Involved in Administrative Violations Without Owners;

23. Call Notice;

24. Round Timber Record;

25. Sawn Timber Record;

26. Wildlife Record;

27. Wildlife Products Record;

III- IMPLEMENTATION

1. The Forest Protection Department shall organize the implementation of this Circular within the national Forest Protection force; organize the printing and distribution of the system of forms to the Forest Protection Branches and guide the recording method of the system of forms for uniform application throughout the national Forest Protection force.

2. Decree No. 139/2004/ND-CP took effect from July 21, 2004. Administrative violations occurring before the effective date of Decree No. 139/2004/ND-CP that have not been decided on for handling shall be handled according to Decree No. 77/CP dated November 29, 1996 and Decree No. 17/2002/ND-CP dated February 8, 2002 of the Government amending and supplementing certain articles of Decree No. 77/CP dated November 29, 1996 on administrative penalties in the field of forest management, forest protection, and forest product management. In cases where the administrative violation is not provided for in Decree No. 139/2004/ND-CP or where the legal responsibility for the administrative violation is lighter than that stipulated in Decree No. 77/CP and Decree No. 17/2002/ND-CP, Decree No. 139/2004/ND-CP shall be applied for handling.

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

During the implementation process, if there are any difficulties, units shall promptly report them to the Ministry of Agriculture and Rural Development for guidance.

 .................................................         SOCIALIST REPUBLIC OF VIET NAM YEAR

.................................................                       Independence - Freedom - Happiness          

    Number:                /BB-VPHC

ADMINISTRATIVE VIOLATION RECORD

IN THE FIELD OF FOREST MANAGEMENT, FOREST PROTECTION AND FOREST PRODUCT MANAGEMENT

Today, at ... hours ... day ... month ... year 200..., at ........................................,

We include:

1) ... Position ... Unit ...

2) ... Position ... Unit ...

3) ... Position ... Unit ...

With the presence of Mr./Ms. (if any):

1) ... Occupation/Position:...; Address

...; ID Card number: ...; Date of issue .../.../...; Place

of issuance: ...;

2) …………....................................  Occupation/Position:...; Address

...; ID Card number: ...; Date of issue .../.../...; Place

of issuance: ...;

The person (organization) suffering damage (if any):……………………………………………………………

…….……………………………………………………………………………………………………

We are establishing an administrative violation record against:

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

………………………………………………………………………………………………

The administrative violation as follows (clearly state the circumstances of the case, the attitude of the violator):

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These acts are prescribed in Article ... Clause ... Point ...

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Decree No.... of the Government on administrative penalties in the field of forest management, forest protection, and forest product management.

Opinion of the individual (representative of the organization) committing the administrative violation:……………………………………..

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Opinion of the witness:...

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Opinion of the person (representative of the organization) suffering damage caused by the administrative violation (if any):...

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We have requested Mr./Ms./organization: ... to immediately cease the act   of violation above; apply measures to prevent the administrative violation including: ...

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We temporarily detain the following items, means of transportation, and documents and transfer them to ... for the competent authority to resolve:

Ngoài các vật chứng, phương tiện, giấy tờ nêu trên, chúng tôi không tạm giữ thêm bất kỳ thứ gì khác.

We do not temporarily detain any other items besides those mentioned above.

We require Mr./Ms./representative of the violating organization to be present at ...

          ...at ... hours ... day ... month ... year 200... to resolve the violation case.

This record is made in ... copies with identical content and value; one copy is given to

the person (representative of the organization) committing the violation and ...

After reading the record, the persons present agree with its content.

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Any other opinions (if any): ...

Reason why the person (representative of the organization) committing the violation did not sign the record: ………………..

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Reason why the person (representative of the organization) suffering damage did not sign the record: ...

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