Review of industry access rules and compliance review for enterprises in the rare earth industry
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
introduction
Rare earth is an important non-renewable strategic resource, which is widely used in new energy, new materials, energy conservation and environmental protection, aerospace, electronic information and other fields. The effective protection and rational utilization of rare earth resources is of great significance for protecting the environment, accelerating the cultivation and development of strategic emerging industries, transforming and upgrading traditional industries, and promoting the sustainable and healthy development of the rare earth industry.
According to the spirit of the "Several Opinions of the State Council on Promoting the Sustainable and Healthy Development of the Rare Earth Industry", the rare earth industry needs to establish and improve the industry-wide regulatory system, strictly manage the access of the rare earth industry, improve the management of rare earth mandatory production plans, and strictly implement the relevant laws and regulations on the management of rare metals such as the Mineral Resources Law.
This article will analyze the review of industry access rules and compliance reviews for enterprises in the rare earth industry, hoping to provide reference for enterprises that want to invest in the rare earth industry.
First, on the issue of access to the rare earth industry
1. Because the business scope of rare earth enterprises should have rare earth metal smelting, they can be inquired through the publicity system of the national enterprise information credit system to preliminarily determine whether the rare earth enterprises to be invested in do have business qualifications.
2. Investment enterprises shall, in accordance with the Several Opinions of the State Council on Promoting the Sustainable and Healthy Development of the Rare Earth Industry, the Regulations on the Administration of Rare Earth (Draft for Comments), the Standard Conditions for the Rare Earth Industry (2016 Edition) and the Administrative Measures for the Announcement of the Standard Conditions of the Rare Earth Industry, conduct a compliance review of the legal operation of rare earth enterprises engaged in the rare earth production and smelting industry in terms of regulating the access management of the rare earth industry and the protection of resources in the rare earth industry.
3. According to Article 7 of the Regulations on the Administration of Rare Earths (Draft for Comments), "investment in the construction of rare earth mining projects or rare earth smelting and separation projects shall go through approval procedures in accordance with the provisions of the Regulations on the Administration of Approval and Filing of Enterprise Investment Projects." "Accordingly, it is necessary to review whether the rare earth enterprises have gone through the relevant approval procedures.
4. It is suggested that the investment enterprise shall require the rare earth enterprise to provide the relevant notification documents of the total control index of rare earth mining, smelting and separation in the past year, so as to review the mining and smelting indicators it enjoys, and confirm that the rare earth enterprise is engaged in rare earth mining, rare earth smelting and separation or processing and mining of rare earth products in accordance with the actual total index use plan, otherwise it is illegal mining and excessive mining.
5. Review whether the rare earth enterprises meet the "Rare Earth Industry Standard Conditions (2016 Edition)" (hereinafter referred to as the "Standard Conditions").
(1) Review the relevant licenses and documents of rare earth enterprises. Rare earth mine development, smelting and separation projects shall comply with the requirements of national laws and regulations on resources, production safety, environmental protection, energy conservation management, etc.; mining licenses and safety production licenses shall be obtained in accordance with the law for the exploitation of rare earth mineral resources; rare earth mine development, smelting and separation investment projects shall be in accordance with the provisions of the "Catalogue of Investment Projects Approved by the Government" and can only be constructed and produced after approval.
(2) Review whether the production scale, resource utilization, and environmental protection of rare earth enterprises meet the scale requirements of the "Standard Conditions", and whether the process and equipment are selected with clean production processes with low pollution, low emissions, and low energy consumption.
(3) Review whether the rare earth enterprise has an independent quality inspection agency and full-time inspectors, a sound quality inspection management system, and whether the quality of rare earth products meets the current national standards and industry standards.
(4) Review whether the rare earth enterprises have obtained the conditions for performing safe production in accordance with the law, establish and improve the safety production responsibility system, whether they comply with the "Law on the Prevention and Control of Occupational Diseases", "Fire Protection Law of the People's Republic of China" and other relevant laws and regulations in accordance with the law, and whether the "Law of the People's Republic of China on the Prevention and Control of Radioactive Pollution" and "Technical Regulations on the Safety Management of Radioactive Waste in Uranium and Thorium Mining and Metallurgy" (GB14585-93) and the "Law of the People's Republic of China on the Prevention and Control of Radioactive Pollution" (-93) Laws and regulations such as the Basic Standards for Protection against Ionizing Radiation and the Safety of Radiation Sources (GB18871-2002) and the Standards for Radiation Health Protection in Rare Earth Production Sites (GBZ139-2002) are required to support the construction of radioactive pollution prevention and control facilities.
To sum up, since the Ministry of Industry and Information Technology and the competent department of the rare earth industry of the People's Government of Guangdong Province in accordance with the provisions of these measures, the rare earth enterprises that meet the "standard conditions" to implement dynamic access management, investment enterprises should review whether the rare earth enterprises meet the relevant requirements of the above-mentioned "standard conditions", if they meet the relevant requirements, but the rare earth enterprises have not put forward the "standard conditions" If the announcement is applied, the investment enterprise can require the rare earth enterprise to apply for inclusion in the list of rare earth enterprises for industry access within the time limit in the node design of the investment plan, and if it is not included within the time limit, the investment plan also needs to further clarify the exit mechanism of the investment enterprise and the mechanism for pursuing the liability for breach of contract.
If the rare earth enterprise has been included in the list of enterprises in the "Normative Conditions", it is recommended that the investment enterprise provide the following information when it has submitted an application for announcement before investment, for the record:
(1) Business license and approval procedures for rare earth enterprises.
(2) Application for project initiation, project approval documents, mining license, safety production license, and real estate property certificate.
(3) The approval document of the environmental protection department for the environmental impact assessment report of the project, the environmental protection acceptance opinion on the completion of the construction project, and the pollutant discharge permit. Rare earth enterprises have completed the confirmation documents of the total pollutant emission control indicators approved by the local environmental protection department in the previous year, and completed the confirmation documents of the main pollutant emission reduction tasks issued by the local environmental protection department in the previous year. Monitoring reports and environmental monitoring reports containing radiation issued by environmental monitoring stations or qualified monitoring units in the previous year, online monitoring data for the past three months, and standardized disposal of hazardous wastes (complete ledger records and transfer forms). The emergency plan for environmental risks of enterprises filed with the competent department of environmental protection at or above the county level.
(4) Cleaner production assessment and acceptance report. The construction of the project has passed the energy-saving review document.
(5) Safety evaluation documents, safety production license, blasting and hazardous chemicals use license, etc. The results of the detection and evaluation of occupational disease hazards in the workplace issued by the work safety supervision and management department of the local people's government at or above the level of a city divided into districts shall be issued by an occupational health technical service institution with accreditation. Fire protection acceptance or filing documents.
(6) Documents for quality management system certification.
(7) The results of the tax credit evaluation of the previous year.
(8) Other relevant information.
2. Consider establishing an inspection system for the rare earth industry
In order to support the development of the rare earth deep processing industry and promote the high-quality development of the rare earth industry, it is recommended that the competent departments of industry and information technology of the people's governments at or above the county level, in conjunction with the departments of public security, natural resources, ecology and environment, commerce, customs, market supervision, taxation, emergency management and other departments, strengthen the supervision and management of rare earth mining, smelting and separation, metal smelting, comprehensive utilization and other enterprises, establish a daily supervision and management system based on random spot checks, publish the catalogue of random spot checks, randomly select inspectors, and randomly select the inspected enterprises.
If suspected illegal conduct is discovered in the course of oversight and inspections, the relevant enterprises may be subject to corresponding administrative punishments, relevant administrative compulsory measures may be employed, and relevant credit mechanisms may be established to include untrustworthiness in the national credit information sharing platform, and so forth.
It should be noted that at present, the "Rare Earth Management Regulations" are still in the process of soliciting comments, and there are no formal regulations published, and we should pay close attention to the official issuance of relevant rare earth management regulations to ensure that the government is governed in accordance with the law.
III. Conclusion
Rare earth is an important natural resource that is not renewable, and the state is increasingly standardizing the management of the rare earth industry and issuing various laws and regulations. This article summarizes the current national laws and regulations on rare earths, in order to give readers a preliminary understanding of the entry rules and investment review points of rare earth industry enterprises.
Lawyer introduction
Yung Yun Ya lawyer
Deputy Director of the Real Estate Affairs Department of Jingshi Shenzhen Law Firm, Vice Chairman of the Women's Federation of Jingshi Shenzhen Law Firm, Member of the Legal Counsel Committee of the Party Committee and Government of Shenzhen Lawyers Association, and Lawyer of Guangdong Province Foreign-related Emerging Talent Pool.
Business Areas:
Legal counsel for party committees and governments, perennial legal counsel for enterprises and corporate compliance, civil and commercial disputes and enforcement, real estate, and foreign-related legal services