Proposals sent by the «Russian Forest» National Association of Timber Industry to government bodies.
Implement legal regulation of the order of multipurpose use of forest
The civil code of the Russian Federation establishes that in the exercise of civil rights and in the performance of civil duties, participants in civil legal relations must act in good faith. No one has the right to take advantage of their unfair behavior. At the same time, the conscientiousness of the participants in civil legal relations and the reasonableness of their actions are assumed.More
To date, the legislation elevates the principle of good faith to the rank of one of the dominant, but at the same time, for the most part, does not disclose the criteria for such good faith. Integrity should be considered as a limiter of the formal application of the law in the regulation of legal relations.
This principle is also laid down in the forest legislation, it appears when applying the register of unscrupulous tenants of forest plots and forest planters, which is undoubtedly a big step in the development of legislation. In addition, the principle of good faith is also applied when concluding lease agreements for forest areas for a new term.
However, it is worth noting that sometimes relations arise between tenants of forest areas, in which the parties behave formally in accordance with the law, but at the same time one of the parties incurs losses from such interaction. We are talking in particular about the institute of multi-purpose use of forests.
The state, introducing the possibility of simultaneous use of forests for different purposes, actually confronts the interests of business entities operating in the same forest area without providing mechanisms for resolving such a conflict.
As an example, the situation when the same forest area, which was previously leased to one tenant for harvesting wood, is simultaneously leased to another tenant for other purposes, in particular, to perform work on the geological study of the subsoil, the development of deposits minerals, construction, reconstruction, operation of linear objects (pipelines).
As a usual, in the second case, the tenants are enterprises of the oil and gas industry.
Of course, this situation creates a number of inconveniences for tenants, as well as causes losses, since, taking into account the specifics of the activities being carried out, it is impossible to simultaneously carry out timber harvesting activities on the same forest area and work on the geological study of the subsoil and development of deposits minerals, construction, reconstruction, operation of linear objects (pipelines).
To date, the criteria for compatibility of different types of forest use have not been established normatively, it has not been determined which types of forest use can be carried out simultaneously on the same forest plot provided to two economic entities in case that the activities of two tenants on the same forest plot are mutually exclusive certain specifics of their activities.
For two economic entities that are provided with a forest plot for rent at the same time, given the lack of a legal mechanism in the current legislation of the Russian Federation determining the procedure for using a forest plot, it is absolutely unclear how they should carry out their activities in this situation. Moreover, each of them concluding a lease agreement, paying rent for the forest plot, naturally, assumed that he would be able to use the forest plot without obstacles in accordance with the objectives specified in the lease agreement.
As a rule, when laying geological profiles, seismic surveys are carried out to study the subsoil of the earth, while for these works it is necessary to cut down forest plantations. As a result of such activities, losses are caused to the lessee-logger, as he loses the volume of liquid wood, which he hoped for by concluding a lease agreement.
Thus, the implementation of work on the geological study of the subsoil, the development of mineral deposits, construction, reconstruction, operation of linear facilities is also associated with the cutting of wood, i.e. in this case, cutting is one of the necessary methods and methods in order to subsequently lay a geological profile.
Also, oil and gas companies are building pipelines, leading to the impossibility of access to the logging sites for loggers or significantly increasing the leg of removal of harvested wood.
In this regard, the simultaneous carrying out by two tenants of the specified types of use of the forest area will lead to a violation of the principle of rational, continuous, non-depleting use of forests.
In our opinion, it is in such a situation created by law that both tenants act within the law, but the other tenant suffers from the actions of one tenant, including losses. It is worth noting that often the enterprises of the oil and gas processing industry do not go to negotiations in order to settle the interaction. After all, why should they? They do not violate the law.
But it is in this context that the question arises of good faith on their part.
Obviously, this situation needs external regulation.
In this regard, it is proposed to establish the criteria of good faith in the form of regulation of the procedure for the use of forests when
To lift the ban on the cession of rights and obligations under lease agreements for forest parcels acquired at tenders
The cession of rights and obligations under forest lease contracts by forest legislation is allowed. Thus, in accordance with Article 5 of the Federal Law of December 4, 2006 No. 201-ФЗ “On the Enforcement of the Forest Code of the Russian Federation”, a tenant under a lease agreement for a forest plot, if the state cadastral registration of such sites was not carried out, does not have the right to transfer the forest lease agreement to other persons.
The Forest Code of the Russian Federation does not regulate issues in any way.More
By virtue of Article 3 of the Forest Code of the Russian Federation, forest legislation regulates forest relations. Property relations related to the turnover of forest areas, forest plantations, wood and other forest resources are regulated by civil law, as well as the Land Code of the Russian Federation, unless otherwise established by the Forest Code of the Russian Federation, other federal laws. Thus, in the regulation of property relations, forest legislation gives priority in the following order:
1) The Forest Code of the Russian Federation, other federal laws;
2) Civil legislation and the Land Code of the Russian Federation.
In accordance with Part 4 of Article 71 of the Forestry Code of the Russian Federation, the provisions on the lease stipulated by the Civil Code of the Russian Federation and the Land Code of the Russian Federation apply to the forest plot lease agreement, unless otherwise provided by this Code.
According to part 3 of article 3 of the Land Code of the Russian Federation, property relations on the ownership, use and disposal of land plots, as well as on transactions with them, are governed by civil law, unless otherwise provided by land, forest, water legislation, legislation on subsoil and environmental protection, special federal laws. This article establishes the priority of land legislation in relation to civil law in the regulation of land relations.
At the same time, according to part 7 of article 448 of the Civil Code of the Russian Federation, in the wording effective from June 1, 2015, if, in accordance with the law, a contract is possible only through tendering, the winner of tenders does not have the right to assign the rights and transfer debt bidding agreement. Obligations under such a contract must be fulfilled by the winner of the auction in person, unless otherwise established in accordance with the law.
To date, judicial practice is based on the application of the said provision of the Civil Code of the Russian Federation directly, bypassing the norms of land legislation.
However, according to clause 9 of Article 22 of the Land Code of the Russian Federation, when a land plot owned by the state or municipal property is leased for a period of more than five years, the tenant of the land plot has the right, unless otherwise established by federal laws, to transfer his land the rights and obligations under this contract to a third party without the consent of the lessor, subject to notification.
Thus, both forest legislation and land legislation allow for the transfer of rights and obligations under forest lease agreements.
It should be noted that forest areas are a special object of civil law relations, characterized as a rule by a large area, a special mode of use and protection. In this regard, with a view to rational use, it is not advisable to impose a ban on the assignment of rights under obligations arising from tendered forest lease contracts.
We propose to consider the possibility of adjusting part 7 of article 448 of the Civil Code of the Russian Federation, indicating that the provisions of this rule of law do not apply to the lease of forest areas.
Providing the possibility of cutting down the additional volume of wood in the current year due to the under-utilized established volume of timber removal in the forest area for the previous three years with an excess of the calculated cutting area
According to Part 4 of Article 29 of the Forest Code of the Russian Federation, harvesting of wood in an amount exceeding the calculated cutting area (allowable amount of wood removal), as well as with violation of the cutting age, is prohibited.More
At the same time, according to clause 9 of the Rules for Wood Harvesting and the particularities of wood harvesting in forest areas and forest parks referred to in Article 23 of the Forest Code of the Russian Federation, approved by order of the Ministry of Natural Resources and Ecology of the Russian Federation of September 13, 2016 No. 474, wood harvesting is carried out within the limits of the calculated forest area of forestry, forest park by types of purpose of forests, farms and the predominant species.
Persons using forests for harvesting wood on the basis of a forest lease agreement or the right of permanent (perpetual) use of a forest plot use the additional volume of wood in the current year due to the underutilized established volume of wood removal in the forest plot for the previous three years, provided that the current year, the volume of timber removal under a lease agreement or a forest development project (when a forest area is granted on the right of permanent (perpetual) use).
Underutilized wood volume is defined as the difference between the established allowable volume of wood removal under a forest plot lease agreement or the forest development project and the volume of actually harvested wood for the relevant year.
At the same time, the total volume of timber harvesting in forestry, forest park should not exceed the calculated cutting area established for the relevant forest area, forest park.
It should be noted that tenants of forest plots have the right to annually cut down the allowable amount of wood provided for by the forest plot lease agreement. Therefore, the accumulated wood that was not cut for three years could still be cut down within the calculated cutting area of the corresponding year. Therefore, it is illogical to set a limit on cutting down of the underused established volume of wood removal in the forest area for the previous three years by the size of the current year's cutting area.
Moreover, this limitation follows from part 4 of article 29 of the Forest Code of the Russian Federation. Thus, we propose to consider the possibility of adjusting this norm, adding to the exception, according to which the additional volume of wood in the current year due to the underutilized established volume of timber removal in the forest area for the previous three years, provided that the volume of timber removal established for the current year is fully used or a forest development project (if a forest area is granted on the basis of permanent (perpetual) use) can be cut down in full. The specified amount should not be included in the calculated cutting area.
To develop the domestic market of bioenergy on wood fuel
Issue: the construction of pellet plants requires the involvement of significant resources (natural, financial, labor, material and technical, etc.).More
Issue: Article 150 of the Tax Code of the Russian Federation does not provide for grounds for exemption from taxation as import of pellet equipment.
Issue: The use of pellets in the domestic market is effective only when used with a short distance of transportation.
Issue: There are no mechanisms that would allow launching the implementation of bioenergy projects at the regional and municipal levels.
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