Myanmar Draft list of applicable legislation to consider for Forest Legality related Risks

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1 Myanmar Draft list of applicable legislation to consider for Legity related Risks Updated on 4 April 2014 This document contains a draft list of applicable legislation relevant to the forest sector. It Supports organisations seeking to: Comply with FSC Controlled Wood requirements for risk assessment and field verification for the first category of controversi materi (illegly harvested wood) Comply with FSC Principle 1 (when working towards full FSC FM certification) Fulfil EUTR requirements Source legly harvested timber. The applicable legislation list has been developed through the use of different sources e.g. FSC FM Interim and FSC FM endorsed standards, expert consultation and relevant articles/reports. Disclaimer This list of applicable legislation is not an offici source of information on applicable legislation. FSC and NEPCon do thus not assume any leg responsibility for the completeness of the information or any responsibility related to the use of the information. Your help is appreciated This list is a preliminary list and thus it is not exhausting l laws that might be available. I you are aware of other laws which are not mentioned or have other comments please share them with the Glob Registry Project Manager Roman Polyachenko, rp@nepcon.net, mobile This will enable us to improve the information available at the Glob Registry, for the benefit of other users.

2 Applicable legislation list - Myanmar Country Sce Comments Myanmar Nation Step 1. Baseline assessment Criteria Guiding description of the and sub criteria and sub criteria criteria 1. Leg rights to harvest 1.1 Land Legislation covering land tenure tenure and rights, including customary manageme rights as well as management nt rights rights that includes the use of leg methods to obtain tenure rights and management rights. It so covers leg business registration and tax registration, including relevant leg required licenses. 1.2 Concessio n licenses Legislation regulating procedures for the issuing of forest concession licenses, including use of leg methods to obtain concession license. Especily bribery, corruption and nepotism are well-known Step 2: Research Applicable laws and regulations (provide reference to article, paragraph or requirement level where possible) Policy (1995), Law (1992): Chapters IV, V, and VI. Rules (1995), Flow Land, Vacant Land and Wild Land Law (2012), Community ry Instructions (1995) Law (1992): Chapter V "Establishment of Plantation", Section (13), (14), (15) and Chapter VI "Permission of Extraction of Produce", Community ry Instructions (1995), Rules (1995), Chapter 3. Myanmar Citizens Investment Law (1994), Foreign Investment Law (2012), Leg Authority (identify relevant competent authority responsible for leg compliance) - ry Department.. Legly required documents or records (Documents or records formly required that can be used to indicate legity) Timber Extraction Contract (for contractors) Extraction Permit FD approved management plan Hammer mark registration records Pre-harvest survey and marking books Timber Extraction Contract (for contractors) FD approved management plan Hammer mark registration records Pre-harvest survey and marking books Sources of Information (list sources if different types of information, such as reports, laws, regulations, articles, web pages news articles etc.).

3 issues in connection with concession licenses. Foreign Investment Rule(2013), Law reference: Chapter VI, Permission For Extraction Of Produce Section 18. Community ry Instructions, reference: Section (12), (13) "Duration of land lease for the establishment of community forest" Foreign Investment Law reference : Section 31- The commission may permit the investors to lease the land or to use land for the term actuly required based on the categories of business, industri business or agricultur, livestock breeding business and investment volume up to initi 50 years. 1.3 Managem ent and Any leg requirements for management planning, including conducting forest Foreign Investment Rule (2013) Reference: Chapter V, Section 30: "Application for License " Section 49: The promoter or investor has accepted the license issued by the commission and then establishment shl be accomplished in the prescribed period or extended period. On completion of establishment, submission of accomplishment shl be sent to the commission within 30 days as of the end of business. 50. The investor shl initiate services or production activities after the establishment period. 54. The promoter or investor shl ensure that: a. matters in relation to environment conservation as for business shl be performed according to law of environment conservation. b. implementation shl be made on the business to create the interest of the State and citizens for investment. Myanmar Policy (1995) Law (1992) Nation Code of Harvesting (2000) Approved management plan, Instruction for tree selection, Operation Extraction plan

4 harvesting planning inventories, having a forest management plan and related planning and monitoring, as well as approv of these by competent authorities. Management Plan Manu (1996), Rules (1995), Chapter 3, Standing Order for Subordinates (1959) Working Plans Manu(1938) Department Instructions for Officers (1955) Timber Extraction contract between MTE and sub-contractors MTE Extraction Manu, D.I, Section (165), The State Timber Board Act (1950)., District Department. (MTE Form AC) Completion report by FD (post harvest) Timber Extraction Contract (for contractors) 1.4 Harvesting permits Legislation regulating the issuing of harvesting permits, licenses or other leg document required for specific harvesting operations. It includes the use of leg methods to obtain the permit. Corruption is a well-known issue in connection with the issuing of harvesting permits. Law References: Chapter IV Section 11, (c) Collect and compile necessary inventory data of forest resources in the prescribed manner every ten years. Management Plan, Section (4.:) "Production" MTE Extraction Manu, Chapter II: Standing Orders for Extraction Staff, Chapter (4), (5) l. Standing Order for Extraction Staff, Chapter 4: Preparations of prerequisites for timber extraction- section 28- A map and marking notes for compartments where girdling has been undertaken, section 31-extraction site exploration report, section 33, present form (as) for compartments for extraction and form (ac) human resources and estimated amount of timber to be extracted Law (1992)- Chapter VI "Permission of Extraction of Produce", Department Instructions for Department, Rules (1995) State Timber Board Act (1950), Law (2012), Myanmar Timber Enterprise (MTE) Extraction Manu Standing Orders for Extraction Staff.. Department and District department. Harvest Permit Approved harvesting plan, Instruction for tree selection, Registration of marking hammers Completion report by FD (postharvest) Selection Marking Report with Marking Note Books MTE hammer marking and

5 Law references: Law Chapter VI, Section 17, 18 (a) and 21: 17. produce may only be extracted after obtaining a permit. However, if it is for person use or for use in agricultur or fishery enterprise not on a commerci sce, forest produce may be extracted in an amount not exceeding the stipulated quantity, without obtaining a permit. timber extraction control forms Records of joint measurement by FD and MTE Harvesting Monitoring Report Timber Extraction Contract (for contractors) 18. In permitting the extraction of forest produce the Department shl use the competitive bidding system if the extraction is on a commerci sce. However, extraction for the following purposes may be permitted without using the competitive bidding system: (a) Where extraction of forest produce and ses in and outside the country are carried out as a State-owned enterprise; 21. A person who has obtained permission for extraction of forest produce shl: (a) Abide by the conditions contained in the permit; (b) Abide by the orders, directives, prohibitions and restrictions issued by the Department in accordance with this Law; (c) Pay the royties, security deposits and advances due; (d) Affix the mark or affix the property-mark which has been registered, after measuring in the manner prescribed. Rule, Chapter 3,4 and In respect of permitting the extraction of forest produce on a commerci sce in accordance with the Law Section (18), the

6 Department shl prescribe the procedures and conditions to be obeyed in using the competitive bidding system. 46. In case of the extraction of forest produce that may be proceeded without prior permission on account of the Law Section (20), the Township Officer shl A. affix the marks on standing trees to be permitted for extraction, and affix the mark domestic use on the stumps B. register the name and address of a person who has obtained permission, and variety and quantity of forest produce extracted 47. In accordance with the prescribed license and conditions which at some times have been issued by the Director-Gener, the District Officer may permit the construction of charco kiln and charco-burning from royty-paid firewood which has been extracted from forest land and land at the dispos of the government. MTE Extraction Manu, Chapter I 2.1 Payment of royties and harvesting fees Legislation covering payment of l legly required forest harvesting specific fees such as royties, stumpage fees and other volume based fees. It so includes payments of the fees based on correct classification of quantities, quities and species. Incorrect classification of forest products is a wellknown issue often combined with bribery of officis in charge of controlling the classification. Law (1992), Department Instructions for Officers (DI), Law 2012, MTE Extraction Manu and Standing Orders, Management Plan Section Law references: 20. : The Director-Gener may, with the approv of the Minister determine the following in respect of the permission for extraction of forest produce: (b) Rate of royty and other fees; 21. : A person who has obtained permission for extraction of forest produce shl: (c) Pay the royties, security deposits and MTE hammer marking forms Form S18/Teak Form S18/non-teak MTE form D Records of joint measurement by FD and MTE Harvesting Monitoring Report Form C and D (joint measuring forms at landing)

7 advances due; 22. :The Officer may permit the construction of charco kiln and burning of charco subject to conditions prescribed to enable burning of royty-paid firewood extracted from forest land and land at the dispos of the Government. 49. : (a) The Minister may reduce, waive or exempt from payment of any royty due, in respect of forest produce permitted to be extracted under this Law. (b) The Director-Gener may reduce, waive or exempt from payment of any royty due, in respect of forest produce permitted to be extracted under section 18 sub-section (d). Law References: 16. Any person or organization with a business in the industri estate or a business in the speci economic zone or a category of business prescribed by the Ministry shl: (a) has the responsibility to contribute the prescribed cash or kind for the environment conservation including the management, treatment and dispos of waste; (b) shl contribute user s charges or management fees for the environment conservation stipulated of the relevant industri estate, speci economic zone and work or body; (c) shl comply with the directives issued by the relevant industri estate, speci economic zone and work or body for environment conservation. 2.2 Vue added Legislation covering different types of ses taxes which apply The Commerci Tax Law (1990) Tax receipts and invoices

8 taxes and other ses taxes (käibemak s) 2.3 Income and profit taxes (tulumaks) to the materi being sold, including selling materi as growing forest (standing stock ses). Legislation covering income and profit taxes related to the profit derived from se of forest products and harvesting activities. This category is so related to income from the se of timber and does not include other taxes generly applicable for companies or related to sary payments. 3.1 Timber harvesting regulations Any leg requirements for harvesting techniques and technology including selective cutting, shelter wood regenerations, clear felling, transport of timber from felling site and season limitations etc. Typicly this includes regulations on the size of felling areas, minimum age and/or diameter for felling activities and elements that shl be preserved during felling etc. Establishment of skidding or hauling trails, road construction, drainage systems and bridges etc. shl so be considered as well as planning and monitoring of harvesting activities. Any legly binding codes for harvesting practices shl be considered. MTE Extraction Manu, Standing Orders for Extraction Staff of MTE, Nation Code of Harvesting (2000), law, Rules Department Instruction Section (165), Management Plan Section (4.1), Section ( 9.1 to (9.5 ), District Department. MTE Boundary maps Selection marking report Harvesting monitoring report Operation Extraction plan (MTE Form AC) Felling and Log registers (MTE form B and C)

9 3.2 Protected sites and species 3.3 Environme nt requireme nts 3.4 Heth and safety Covers legislation related to protected areas as well as protected, rare or endangered species, including their habitats and potenti habitats. Covers legislation related to environment impact assessment in connection with harvesting, acceptable level for soil damage, establishment of buffer zones (e.g. ong water courses, open areas, breeding sites), maintenance of retention trees on felling site, session limitation of harvesting time, and environment requirements for forest machineries. Legly required person protection equipment for persons involved in harvesting activities, use of safe felling and transport practice, Law 1992, Section (8 B) " Declaration of reserved trees" The Protection of Wildlife and of Natur Areas Law Nation Code of Harvesting (2000) MTE extraction manu MOECAF, Department, Notification 583/94: Section (3 C) - to carry out in accordance with the Internation Conventions acceded by the State in respect of the protection and conservation of wildlife, ecosystems and migratory birds; Section (15). The Director Gener shl, with the approv of the Minister: - (a) determine and declare endangered species of wild anim which are to be protected according to the following categories : - (if) completely protected species of wild anims; (ii) normly protected species of wild anims; (iii) seasonly protected species of wild anims; Policy (1995) Law (1992) Rules (1995) Nation Code of Harvesting (2000) MTE extraction manu Management Plan Section (9.7) Department instructions for control of forest encroachment Occupation heth and safety law Nation Code of Harvesting (2000) MTE extraction Manu management Plan, Wildlife and Nature Division (NWDC), District Department. Nation Commission on Affairs (NCEA) District Department Completion report of Harvesting (Form AJ) Management Plan Harvesting Plan Exploration Report (MTE Form AC) Field inspection reports p/nation-news/3625- myanmar-to-draft-first-laboursafety-law.html

10 3.5 Leg employme nt establishment of protection zones around harvesting sites, and safety requirements to machinery used. Legly required safety requirements in relation to chemic usage. The heth and safety requirements that shl be considered relate to operations in the forest (not office work, or other activities less related to actu forest operations). Leg requirements for employment of personnel involved in harvesting activities including requirement for contracts and working permits, requirements for obligatory insurances, requirements for competence certificates and other training requirements, and payment of soci and income taxes withhold by employer. Furthermore, the points cover observance of minimum working age and minimum age for person involved in hazardous work, legislation against forced and compulsory labour, and discrimination and freedom of association. 4. Third parties rights 4.1 Legislation covering customary Customary rights relevant to forest rights harvesting activities including requirements covering sharing of benefits and indigenous rights. Soci Security Law (2012) (draft) Minimum wage law (2012) (draft) Settlement of labour dispute law (2012) Leave and Holiday Act (1951) Workman s Compensation Act (1923) Employment and Training Act (1950) Labour Organisation Law No. 7 (2011) Labour organisation rules (2011) Settlement of labour dispute rules (2012) Employment Restriction Act Employment and Training Act Factories Act en/index.htm Law (1992) Section 15, 17 and 20 Rule Chapter 5 (Section 45 and 46) Community ry Instructions (1995)- 5(e),

11 Management Plan, Section ( ) and ( )_ " People Participation in Management Planning 4.2 Free prior and informed consent 4.3 Indigenous peoples rights Legislation covering free prior and informed consent in connection with transfer of forest management rights and customary rights to the organisation in charge of the harvesting operation. Legislation that regulates the rights of indigenous people as far as it s related to forestry activities. Possible aspects to consider are land tenure, right to use certain forest related resources or practice tradition activities, which may involve forest lands. Policy (1995) Community ry Instructions (1995), Rule (1995), Chapter (2) "Constitution of Reserved and Declaration of Protected Public " Law (1992) Section 15 and 17_ " by which description of rights and privileges given to loc communities/ Indigenous People when reserved forest or protected public forest has to be constituted", Community ry Instructions (1995), Management Plan, Section ( ) and ( )_ " People Participation in Management Planning. NA NA Constitution of the Republic 5.1 Classificati on of species, quantities, quities Legislation regulating how harvested materi is classified in terms of species, volumes and quities in connection with trade and transport. Incorrect classification of harvested materi is a well-known method to reduce/avoid payment of legity prescribed taxes and fees. MTE Extraction manu (1936) and Standing orders and DI for forest officers ( you have these materis?), Myanmar Selection System, Management Plan, Section (2.3) " Resource Base". Inspect the logs from felling to delivering to measuring points by hammer marks of FD and MTE timber harvesting forms Standing Orders for Extraction Staff Chapter 11, Classification of Grade (star)", Chapter 13, Hardwood Extraction " Classification of species and group" Management Plan, Section (2.3) " Resource Base" Joint measuring forms (Form-C and Form-D) Trucking slips (Form -D) Completion report (Form-AJ) Deport registers (Form-AT/AU, Form AO (see Timber Harvest Work Flow tab)

12 5.2 Trade and transport All required trading permits shl exist as well as legly required transport document which accompany transport of wood from forest operation. Law (1992), Department Instructions of FD and MTE. MTE Extraction Manu (1936), Chapter 2 "Transportation by train", Standing Orders, Chapter 9, Department Instructions of FD and MTE Remov pass Joint measuring forms (Form-C and Form-D) Trucking slips (Form -D) Completion report (Form-AJ) Deport registers (Form-AT/AU, Form AO Specification list/measurement/packing list 5.3 Offshore trading and transfer pricing 5.4 Custom regulations Legislation regulating offshore trading. Offshore trading with related companies placed in tax havens combined with artifici transfer prices is a well-known way to avoid payment of legly prescribed taxes and fees to the country of harvest and considered as an important generator of funds that can be used for payment of bribery and black money to the forest operation and person involved in the harvesting operation. Many countries have established legislation covering transfer pricing and offshore trading. It should be noted that only transfer pricing and offshore trading as far as it is legly prohibited in the country, can be included here. Custom legislation covering areas such as export/import licenses, product classification (codes, quantities, quities and species). Myanmar Customs Act, Control of Export and Import Acts Law (1992) Department Instructions of FD and MTE Myanmar Customs Act, Control of Export and Import Acts, Law 1992, Revenue, (see Timber Harvest Work Flow tab) Export Licence Certified letter from the FD for exporting wood products Export declaration from Customs

13 5.5 CITES CITES permits (the Convention on Internation Trade in Endangered Species of Wild Fauna and Flora, so known as the Washington Convention). The Protection of Wildlife and of Natur Areas Law, MoECAF Department, Notification 583/94: Section 3, c - to carry out in accordance with the Internation Conventions acceded by the State in respect of the protection and conservation of wildlife, ecosystems and migratory birds; Section 15. The Director Gener shl, with the approv of the Minister: - (a) determine and declare endangered species of wild anim which are to be protected according to the following categories : - (if) completely protected species of wild anims; (ii) normly protected species of wild anims; (iii) seasonly protected species of wild anims; Revenue, Department Certificate of Myanmar Origin Fumigation Report Phytosanitary Certificate CITES permit