Thông tư 18/2009/TT-BXD

CIRCULAR

PROVIDING GUIDELINES ON EXPORT OF MINERALS TO BE USED AS CONSTRUCTION MATERIALS

Pursuant to Decree 17/2008/ND-CP of the Government dated 4 February 2008 on functions, duties, powers and organizational structure of the Ministry of Construction ["Decree 17'];
Pursuant to Decree 160/2005/ND-CP of the Government dated 27 December 2005 making detailed provisions for implementation of the Mineral Law and the Law amending the Mineral Law ["Decree 160”];
Pursuant to Decree 07/2009/ND-CP of the Government dated 22 January 2009 on amendments to Decree 160 ["Decree 07'];
Pursuant to Decree 12/2006/ND-CP of the Government dated 23 January 2006 making detailed provisions for implementation of the Commercial Law with respect to international purchases and sales of goods, and agency for sale and purchase, processing and transit of goods involving foreign parties ["Decree 12"];
Pursuant to Decree 77/2007/ND-CP by the Government dated 10 May 2007 on amendments to Decree 150/2004/ND-CP of the Government dated 29 July 2004 regulating administrative penalties in the minerals sector;
Pursuant to Decision 152/2008/QD-TTg of the Prime Minister dated 28 November 2008 approving the plan on exploration, mining, processing and use of minerals as construction materials in Vietnam up to 2020;
The Ministry of Construction hereby provides the following guidelines on export of minerals to be used as construction materials as follows:

Section 1. GOVERNING SCOPE AND APPLICABLE ENTITIES

Article 1

This Circular regulates activities related to the export of minerals to be used as construction materials, cement production and common construction materials (hereinafter all referred to as minerals to be used as construction materials).

Article 2

This Circular applies to domestic entities1 and to foreign traders (hereinafter all referred to as organizations and individuals) who are eligible under the Commercial Law to export minerals as construction materials from Vietnam2.

Section 2. INTERPRETATION OF TERMS

Article 3

In this Circular, the following terms shall be construed as follows:

1. State body competent to grant permits for mining or processing minerals to be used as construction materials means the Ministry of Industry (before November 11, 2002), the Ministry of Natural Resources and Environment (from November 11, 2002), and People's Committees of centrally run provinces and cities (hereinafter referred to as provincial People's Committees).

2. Processing means the process of sorting and enriching minerals or other activities aimed at achieving certain specifications, standards and content as required to increase the value of minerals.

3. Minerals restricted from export means minerals suspended from export.

4. Construction sand means natural sand from mines, rivers and springs (excluding white siliceous sand, saline sand and artificial sand) used in concrete casting, masoning, mortaring, road pavement and filling up ground, which is on the list of minerals to be used as common construction materials and has a Si02 content < 85%.

5. Construction stone means various types of natural stone being of magma and sedimentary origin which are regenerated, are on the list of minerals to be used as common construction materials, and which are broken, crushed and classified by size and used for concrete casting and for building walls and roads.

Section 3. PROVISIONS ON EXPORT OF MINERALS TO BE USED AS CONSTRUCTION MATERIALS

Article 4 List of minerals permitted to be exported; and restricted from export

1. Minerals permitted to be exported are those outside the list of minerals restricted from export stipulated in clause 2 of this article.

2. List of minerals restricted from export:

(a) Lime and additives in mines under master planning on exploration, mining and processing to be used as materials for cement production promulgated with Decision No. 105-2008-QD-TTg of the Prime Minister dated July 21, 2008, and in mines which are approved by the Prime Minister to be added to master planning;

(b) Clay;

(c) Felspar;

(d) Construction sand;

(e) Pebbles, gravel and grit;

(f) Construction stone in mines in South-Eastern and South-Western provinces.

Article 5 Conditions for minerals usable as construction materials to be permitted to be exported

1. [They are] minerals exploited from mines with valid mining or salvage-mining licences issued by the competent State body.

2. [They are] minerals which are confiscated and sold by the competent State body with valid purchase or auction documents.

3. Saline sand salvaged from the dredging and clearing of river channels, estuaries and river ports adjacent to the sea under projects approved by the competent body, and the volume of sand for export must be in excess of the local use need and certified by the competent body.

4. When there arises an export need for a mineral on the list of minerals restricted from export, its export shall be decided by the Prime Minister.

5. When the export of a mineral outside the list of minerals restricted from export may affect the domestic supply and demand balance at the time of export, its export suspension shall be decided by the Prime Minister.

6. Minerals which are temporarily imported for re-export or imported for processing and export or imported for processing for foreign traders shall comply with Decree 12.

Article 6 Conditions on processing and quality standards of minerals exported to be used as construction materials (excluding minerals temporarily imported for re-export)

Minerals must be processed to meet the quality standards specified in Appendix 1 to this Circular. Results of experiment and analysis of mechanical, physical and chemical criteria of minerals must be accredited by LAS-XD or equivalent laboratories.

Article 7 Conditions for entities to export minerals

An entity may be licensed to export minerals when it meets all the conditions prescribed in the Commercial Law.

Article 8 A mineral export file shall comprise:

1. The file prescribed by the Commercial Law.

2. Results of experiment and analysis mentioned in article 6 of this Circular.

3. In specific cases:

(a) If an entity exports minerals which such entity itself mined and processed, a notarized copy of the valid mining or processing license granted by the competent State body is required.

(b) If an entity purchases processed minerals for export, notarized copies of the mining license and processing license of the seller granted by the competent State body which remain valid at the time of mining and processing, are required.

(c) If an entity purchases minerals for processing and export, notarized copies of the mining license of the seller and the mineral processing license granted by the competent State body as stated in paragraph (b) are required.

(d) For the cases stipulated in paragraphs (b) and (c) of this clause, the economic contract and a true copy of the value added tax invoice are also required.

Section 4. REPORTING ON EXPORT OF MINERALS TO BE USED AS CONSTRUCTION MATERIALS

Article 9 reporting regime

1. Entities exporting minerals shall make and send reports to the provincial People's Committee; and provincial People's Committees shall make and send reports to the Ministry of Construction for collation and on-reporting to the Prime Minister.

1. Reports shall be made biannually and annually or on a one-off basis at the request of the competent State body; biannual reports of entities exporting minerals shall be sent to the provincial People's Committee no later than July 5 every year, and annual reports no later than January 5 of the subsequent year. Reports of provincial People's Committees shall be sent to the Ministry of Construction no later than July 15 every year and January 15 of the subsequent year.

3. Reports shall be made on the standard forms in Appendix 2 of this Circular.

Section 5. INSPECTIONS AND DEALING WITH BREACHES

Article 10

Provincial People's Committees shall direct functional agencies to conduct periodic and one-off inspections of the export of minerals to be used as construction materials, in accordance with law.

Article 11

The Ministry of Construction shall co-ordinate with relevant ministries and branches to conduct periodic and one-off inspections within localities of the observance of law during the export of minerals to be used as construction materials.

Article 12

Any organization or individual who breaches this Circular shall, depending on the nature and seriousness of the breach, be disciplined, be subject to an administrative penalty, pay compensation for loss and damage, or be criminally prosecuted.

Section 6. ORGANIZATION OF IMPLEMENTATION

Article 13

This Circular shall take effect 45 days from the date of its signing and shall replace the provisions on the export of minerals to be used as materials in Circular No. 02-2006-TT-BCN of the Ministry of Industry (now the Ministry of Industry and Trade) dated 14 April 2006 guiding the export of minerals.

Contracts which met all export conditions and were being performed before the effective date of this Circular may continue to be performed until completion.

Article 14

Provincial People's Committees shall preside over co-ordination with provincial departments and branches to implement this Circular; and shall require entities exporting minerals to be used as construction materials to strictly comply with this Circular and other current relevant laws.

Article 15

The Ministry of Construction shall preside over co-ordination with relevant ministries and branches to direct and activate export of minerals to be used as construction materials in localities in compliance with this Circular and other current relevant laws.

Article 16

Annually, depending on the actual status of mining and processing, domestic use requirements and the status of export of minerals to be used as construction materials, the Minister of Construction shall consider and make necessary amendments and additions in response to matters which arise.

Article 17

Any problems arising in the course of implementation should be reported in writing to the Ministry of Construction for consideration and settlement.

APPENDIX 1

LIST, QUALITY STANDARDS OF AND CONDITIONS ON EXPORTED MINERALS TO BE USED AS CONSTRUCTION MATERIALS
(Issued with Circular 18/2009/TT-BXD of the Ministry of Construction dated 30 June 2009)