Nghị định 38/2011/ND-CP

DECREE

ON AMENDMENT AND SUPPLEMENT TO A NUMBER OF PROVISIONS ON ADMINISTRATIVE PROCEDURES OF THE DECREE NO.181/2004/ND-CP DATED OCTOBER 29, 2004, THE DECREE NO.149/2004/ND-CP DATED JULY 27, 2004 AND THE DECREE NO.160/2005/ND-CP DATED DECEMBER 27, 2005 

THE GOVERNMENT

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

Pursuant to the Land Law dated November 26, 2003;

Pursuant to the Law on Water Resources dated May 20, 1998;

Pursuant to the Minerals Law dated March 20, 1996 and Law amending and supplementing some Articles of the Minerals Law dated June 14, 2005;

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

DECREES:

Article 1. To amend and supplement Article 123 of Decree No.181/2004/ND-CP dated October 29, 2004 by the Government on the implementation of the Land Law as follows:

"Article 123. Order and procedures for assignment or lease of agricultural land to households, individuals.

1. The assignment of annual crop land, salt-making land to households and/or individuals directly engaged in agricultural production or salt making shall be carried out as follows:

a) Households and individuals submit applications for assignment or lease of land in the People's Committees of communes, wards and townships (hereinafter referred to as the commune-level People's Committees) where the land locates; it must be clearly stated requirements for land use area in the application.

The commune-level People's Committees where elaborate scheme collectively all cases are competent to assign land in the localities; set up the local land assignment advisory councils comprising of presidents or vice-presidents of the People's Committees as council chairmen, the members comprising of representatives of Vietnam Fatherland Front, representatives of Peasants' Association, heads of population quarters in the localities and cadastral officers (hereinafter called as the land assignment advisory councils) to consider and propose cases eligible for land assignment.

b) Based on the opinions of the land assignment advisory councils, the commune-level People's Committees shall finalize the schemes on land assignment, post up the lists of land assignment-eligible cases at the offices of the commune-level People's Committees for seven (07) working days and organize the reception of people's comments; publicize feedbacks at the places where the lists are posted up; finalize the land assignment schemes and submit them to the People's Councils of the same level for adoption before submitting them to the the district-level Natural Resources and Environment Sections for appraisal and to the People's Committees of districts, towns, provincial cities for consideration and approval.

Dossier submitted to the district-level Natural Resources and Environment sections comprises: An application for land assignment of household or individual; A minute reviewing land assignment made by the land assignment Advisory Council; public list of land assignment-eligible cases; A summary of people's opinions and A summary of feedbacks (if any); A completed land assignment plan and the Resolution of the commune-level People's Council, a statement of the commune-level People's Committee sent to the District-level People's Committee, the district-level Natural Resources and Environment section.

c) The district-level Natural Resources and Environment Sections shall have to appraise the land assignment plans; submit to People's Committees at the same level the decisions on land assignment; direct the land use right registration offices to implement the land assignment on real land; grant certificates of land use right, house ownership right and other assets attached to land (hereinafter referred to as the certificates).

The time for performing the works prescribed at this Point shall not exceed thirty (30) working days as from the date the district-level Natural Resources and Environment Sections receive the complete and valid dossiers as prescribed to the date the land users receive the land use right certificates. In particular, the duration of doing the works at district-level Natural Resources and Environment Sections shall not exceed twenty (20) working days and at the offices of the land use right registration shall not exceed ten (10) working days after receiving dossiers forwarded from district-level Natural Resources and Environment Sections.

2. The assignment or lease of perennial tree land, production-forest land, protective-forest land, special-use forest buffer zone land, aquaculture land, other agricultural land to households, individuals shall be carried out according to the following regulations:

a) Households, individuals shall file applications for land assignment or land lease at the commune-level People's Committees where exist the land; it is clearly stated the land area demands for use in the applications.

For cases of application for land assignment, land lease for aquaculture, there must be aquaculture plans or projects appraised by district-level fisheries management agencies and there must be the written commitments on environmental protection or the reports on assessment of environmental impacts according to law provisions on environment.

b) The commune-level People's Committees shall have to verify and certify in the land assignment or land lease applications on the land use demands of households, individuals for eligible cases and send them to the district-level Natural Resources and Environment Sections. Time to complete the work specified in this point shall not exceed seven (7) working days.

c) The district-level Natural Resources and Environment Sections shall have to verify cases of application for land assignment or land lease; conduct field verification when necessary, submit them to the district-level People's Committees for deciding to assign land or lease land; direct the land use right registration offices to conduct the works stated in point d of this clause and submit them for granting land use right certificates; sign land lease contracts for cases of land lease. Time to complete the work specified in this point shall not exceed twenty (20) working days.

d) The land use right registration offices shall have to extract the cadastral maps or extract cadastral measurement of the land areas for the places where the cadastral maps are not available, extract for copy of the cadastral dossiers, print the certificates and send them to the district-level Natural Resources and Environment Sections. Time to complete the work specified in this point shall not exceed ten (10) working days.

3. The criteria for households and individuals to be assigned agricultural land is in order of priority for households and individuals that do not have productive land, are lack of agricultural production land by the average area of ​​agricultural land in the communes."

Article 2. To amend and supplement some Articles of Decree No.149/2004/ND-CP dated July 27, 2004 of the Government providing for the permit issuance of exploration, exploitation and use of water resources, discharge of wastewater into Water source:

1. Clause 3 of Article 7 is amended and supplemented as follows:

“3. The term of underwater - exploitation and - use permit shall not exceed fifteen (15) years and may be considered for extension several times but each time of extension is not more than ten (10) years. In the case water resources may ensure the long-term, stable exploitation, a minimum period of underwater - exploitation and - use permit is (05) years.”

2. Point e, Clause 1 of Article 20 is amended and supplemented as follows:

"c) A certified copy or copy enclosed with the original for comparison or a copy certified by the agency or organization applying for a permit of one of the papers relating to land use right where exploitation well(s) is (are) located as follows:

- A certificate of land use right.

- The other valid papers on land use right in accordance with provisions of the law on land.

Where land where exploitation well(s) is (are) located is not under the land use right of the organization or individual applying for a permit, it is required to have a written agreement for permitting land use between exploitation organization or individual with organization or individual that has land use right."

Article 3. To amend and supplement some Articles of Decree No.160/2005/ND-CP dated December 27, 2005 of the Government detailing and guiding the implementation of the Minerals Law and the Law Amending and Supplementing a Number of Articles the Law on Minerals:

1. Point c, Clause 1 of Article 60 is amended and supplemented as follows:

"C) A certified copy or copy enclosed with the original for comparison or a copy certified by the agency or organization applying for a permit for the written certification of the legal status of the organization applying for a permit of mineral exploration and exploitation being a domestic organization, or the investment license (if any) for organization applying for a permit of mineral exploration and exploitation being foreign organization or joint venture with foreign partners.

2. To supplement Clause 7 of Article 60 as follows:

"7. The number of dossiers required to apply for grant, extension, allowing the return, transfer of minerals mining licenses, continuing to conduct the minerals mining right specified in clauses 1, 2, 3, 4, 5 and 6 of this Article is 01 set".

3. Point đ Clause 1, Article 61 is amended and supplemented as follows:

"đ) A certified copy or copy enclosed with the original for comparison or a copy certified by the agency or organization applying for a permit for the written certification of the legal status of the organization applying for a permit of mineral exploitation being a domestic organization that is not the organization issued permit for exploration, or the investment license (if any) for organization applying for a permit of mineral exploitation being foreign organization or joint venture with foreign partners."

4. To supplement Clause 7 of Article 61 as follows:

"7. The number of dossiers required to apply for grant, extension, allowing the return, transfer of minerals mining licenses, continuing to conduct the minerals mining right specified in clauses 1, 2, 3, 4 and 5 of this Article is 01 set."

5. Clause 4 of Article 63 is amended and supplemented as follows:

"4. The time limit prescribed in Clause 1 and Clause 3 of this Article does not include the working days when the competent agencies issuing licenses for mineral activities consult the relevant authorities on matters relating to the permit grant for mineral activities. Heads of relevant agencies that are consulted shall send official opinions in writing within ten (10) working days after receiving a written request for comments. The written comments must clearly indicate the points of agreement, disagreement, the proposals on amendments and supplements ".

6. Clause 2 of Article 64 is amended as follows:

"2. A copy of exploration scheme and a copy of the exploration license."

Article 4. To annul the following provisions:

1. To annul the provisions at Point c, Clause 1, Article 19; Point b, Clause 1, Article 20 of Decree No.149/2004/ND-CP dated July 27, 2004 of the Government providing for the exploration, exploitation and use of water resources, discharge of wastewater into water sources.

2. To annul the provisions of Article 24, Article 30, Article 47, Article 48, Article 51, Clause 1, Article 55, Article 56, Article 57, Articles 59 and 62; to dedete the phrase "mineral processing" in clause 2 of Article 26, Article 34, clause 6 of Article 44, Clause 1, Article 45, Article 53, Article 54; to delete the phrase "survey" in clause 5 of Article 44; to delete the phrase "survey", the phase "processing" in Article 63 of Decree No.160/2005/ND-CP dated December 27, 2005 of the Government detailing and guiding the implementation of the Minerals Law and the Law amending and supplementing some Articles of the Minerals Law.

Article 5. Effect and responsibility for implementation

1. This Decree takes effect as from July 20, 2011.

2. The ministers, heads of ministerial-level agencies, heads of Governmental agencies, Presidents of Committees of provinces and cities directly under the Central Government and other concerned organizations and individuals shall implement this Decree.