Legal framework for forest management and timber trade of Democratic Republic of the Congo

Forest governance

The Constitution defines the exclusive responsibilities of the central power, the exclusive responsibilities of the Provinces and the concurrent responsibilities of the central power and the Provinces.

The central power is empowered to legislate on forest matters (Forest Code), it can transfer certain responsibilities to the Province for the enforcement of forestry laws. However, forest concession contracts are signed by the MEDD (Ministre de l’Environnement et Développement Durable - Minister of the Environment and Sustainable Development). Most of the prerogatives regarding forest concessions are entrusted to the central government (including its decentralised departments).

As for the institutions in charge of forest management, the relevant directorates are:

DIAF: Direction des Inventaires et Aménagements Forestiers (Forest Inventory and Management Directorate), in charge in particular of validating management and development documents and of monitoring and implementing them.
DGF: Direction de la Gestion Forestière (Directorate of Forest Management), in charge in particular of drawing up permits for industrial lumber cutting, validating timber sale contracts, issuing phytosanitary certificates and establishing forest sector statistics.
CCV: Cellule de Contrôle et de Vérification (Control and Verification Unit), in charge of supervising the proper implementation of forest regulations and verifying the performance of the General Secretariat's administrative units.
DRCE: Direction de la Règlementation et Contentieux Environnementale (Directorate of Environmental Regulations and Litigation), in charge of preparing the draft legal texts that are submitted to the validation committee.
DEP: Direction d’Étude et Planification (Directorate of Studies and Planning), in charge of preparing the national forest plan and the programme for the revival and development of the forestry sector and nature conservation.
DCN: Direction de la Conservation de la Nature (Nature Conservation Directorate), in charge of managing hunting and formerly of managing quotas of endangered species of wildlife and plants within the framework of the International Convention on Endangered Species of Wild Fauna and Flora (CITES). The latter role is currently carried out by the ICCN (Institut Congolais pour la Conservation de la Nature - Congolese Institute for the Conservation of Nature).
DANTIC: Direction des Archives et Nouvelles Technologies de l'Information de la Communication (Directorate of Archives and New Information and Communication Technologies), in charge of collecting and disseminating all information on the state of the environment throughout the national territory and promoting the spread of this information using appropriate means.
CPE: Coordinations Provinciales de l’Environnement (Provincial Environmental Coordination), in charge of coordinating all activities relating to the environment, nature conservation and those affecting the sustainable forest management processes in the provinces.

The most relevant legislation and regulations on forest management are as follows:

Law no. 011/2002 of 29 August 2002 on the Forest Code;
Ministerial order no. 034/CAB/MIN/EDD/03/03/BLN/2015 of 3 July 2015 outlining the procedure for the elaboration, verification, approval, implementation and monitoring of the management plan for a timber production forest concession;
Ministerial order no. 84/CAB/MIN/ECN-DD/CJ/RBM/2016 of 29 October 2016 outlining conditions and rules for the production of lumber;
Ministerial order no. 072/CAB/MIN/EDD/DRCE/00/AAN/2018 of 12 November 2018 establishing the model agreement constituting the social clause of the specifications of the forest concession contract;

Ministerial order no. 102/CAB/MIN/ECN-T/15/JEB/2009 of 16 June 2009 on the rules and formalities pertaining to forestry law enforcement.

Legal rights to harvest

Since August 2002, the Congolese public authorities, with support of the international donor community, reorganised the forest sector with the adoption of a new Forest Code. The Forest Code lays down a balanced management system integrating ecological, economic, as well as social factors. The new forest legislation divides the national forest territory into a public domain and a private domain of the state. The only forest exploitation titles are Forest Concessions, granted in the form of a contract to a concessionaire or to a local Community. On top of this, a concessionaire shall have the rights to harvest, by obtaining a harvesting permit (‘permis ordinaire de coupe’, ‘permis de coupe artisanale’, etc.).

The acquisition of a Forest Concession Contract (CCF - Contrat de Concession Forestière) in permanent production forests is preceded by a public inquiry and has a 25-year renewable validity, which is included in this CCF. Different procedures apply depending on the size of the concession (larger or smaller than 300,000 ha). Article 83 of the Forest Code stipulates that concessions must normally be acquired through open bidding, although discretionary attributions (by mutual agreement) are allowed in exceptional circumstances.

Current forest concessions are the result of the conversion of former forest titles (Supply Guarantees, Letters of Intent), following a review process to verify the legal validity of these titles, defined by Decree no. 05/116 of 24 October 2005 establishing the terms for the conversion of former forest titles into forest concession contracts and extending the moratorium on the granting of logging titles. New concessions remain impossible as long as the "moratorium" extended by Decree no. 05/116 of 24 October 2005 remains in effect.

In order to give proof of the legal rights to harvest, a forest management company must possess several documents: on its legal existence (RCCM, National ID no., etc.), on labour and local community rights, on the environment, on the forest's management and harvesting, on traceability, on transport, on sales and on obligations in terms of taxation and incidental taxes. The key documents are listed in the complete list pertaining to current legislation below (see key documents).

Taxes and fees

Tax returns on timber production have to be in compliance with rules and regulations. Timber harvesting companies are required to declare, every quarter, to the forestry administration the harvested timber volume of the previous quarter. The tax return includes data on the production and processing of forest products and is the basis on which fees payable by a logging company are calculated. The taxes to be paid depend on the category of operator Examples of taxes to be paid:

Surface area tax
Felling tax
Reforestation tax
Deforestation tax
Tax on the operating license (permis de coupe de bois d’œuvre)
Export tax

Timber harvesting activities

According to ministerial order no. 84 of 29 October 2016 on conditions and rules for the production of lumber, the lumber logging regime includes two modes of production: industrial production and artisanal production (Art. 3).

Industrial production of lumber

Industrial lumber production is carried out by industrial companies under the terms of the forest concession contract and the forest management plan.

The creation of a concession is subject to a prior investigation as provided for in Article 84 of the 2002 Forest Code. The tendering procedure is regulated by decree no. 08/09 of 8 April 2008 establishing the procedure for the awarding of forest concessions. This procedure, which falls under the exclusive responsibility of the central level, is strictly applied for the attribution of logging concessions, which can under no circumstances be attributed by mutual agreement. Again, it should be noted that the logging concessions currently operating in the DRC are all the result of the former forest title conversion process.

For new attributions, the forest logging procedure involves a public enquiry prior to the creation of the forest concession, an attribution by auction, the signing of the forest concession contract and lastly, the actual concession operations.

In accordance with article 88 of the Forest Code, the forest concession contract consists of two parts, namely the contract itself which determines the parties' rights and obligations, and a specifications document which sets out the specific obligations incumbent on the forest concessionaire.

The concession's operations must be based on an approved forest management plan, broken down into a five-year management plan and an annual operating plan in accordance with articles 24 and 27 of ministerial order no. 034 of 3 July 2015, outlining the procedure for the elaboration, verification, approval, implementation and monitoring of the management plan for a timber production forest concession. Private forest operators can only have access to the resource by virtue of an appropriate authorisation (Art. 97 of the Forest Code). The procedure for obtaining an industrial logging permit is regulated by ministerial order no. 84/CAB/MIN/ECN-DD/CJ/RBM/2016 of 29 October 2016 on conditions and rules pertaining to lumber production. This permit, specifying the number of stalks and the estimated volume by species, and issued by the Minister in charge of forests, is valid for 1 year with the possibility of extending it for up to 2 years following a substantiated request.

In addition, this logging operation must be carried out in compliance with the standards outlined in the Operational Guides. These include the Management Guide from the timber production series, which establishes the management parameters guaranteeing the sustainability of the relevant resource in order to calculate the forest's maximum allowable output, and the Reduced Impact Logging Guide, which establishes felling standards. (DIAF, 2018).

Not only do management and harvesting standards need to be respected, the forest concessionaire is also required to comply with the environmental requirements contained in his/her environmental and social impact study or his/her environmental and social compliance plan in accordance with law no. 11/009 of July 9, 2011 on the fundamental principles of environmental protection, (articles 21 and 86) and its implementation measures.

Artisanal production of lumber

Unlike industrial logging, artisanal logging is carried out outside of a forest concession and falls under one of two categories: 1^st and 2^nd category. The first category is carried out by a natural person of Congolese nationality on a cutting area not exceeding 50 ha and using rudimentary equipment (machetes, axes, pit saws, heavy pullers). The second category is carried out by a natural person or a company governed by Congolese law over an area of between 100 and 500 ha using specific equipment. (art. 11, AM 84 of 2016).

In addition to the corporate statutes or RCCMs (documents proving the company is registered), both categories of operators enter the trade by obtaining a provincial licence in accordance with the relevant local regulations. Each category is required to build socio-economic infrastructures for the benefit of the local community bordering the forest.

Timber cutting is conditional on obtaining a permit for artisanal lumber cutting. The permit covering an area of 10 to 50 hectares allows the 1^st category artisanal logger to harvest timber and the permit covering an area of 100 to 500 ha allows the 2^nd category artisanal logger to harvest timber at an annual cut rate within the artisanal forest unit in accordance with the management plan. These two permits are issued by the province's Governor for a one-year period.

Traceability

Regulations require both industrial and artisanal forest loggers to mark all trees that are felled or cut and to keep a site register. The provisions are contained in articles 66 to 70 of ministerial order no. 84/CAB/MIN/ECN-DD/CJ/RBM/2016 of 29 October 2016 on the conditions and rules pertaining to lumber production.

Stumps of harvested trees are hammer marked or painted according to regulatory requirements. Billets of timber and logs in forest yards must be marked according to the rules so that they can be easily traced. Markings required on logs and billets of timber are: the tree number, the log or billet number, the company stamp or hammer, number of the felling permit, record of the harvesting site of the tree. (Guide to legal documentation – WWF DRC).

Beginning in 2010, a new independent chain of custody system has been implemented in selected provinces in the DRC by the international verification company Société Générale de Surveillance (SGS). The system includes all best practice elements, including tamper-proof barcodes and computerized databases that allow reconciliation of timber volumes at different points in the supply chain. The chain of custody system (PCPCB) is tied to a new forest management information system also developed by SGS. While the system follows best practice, it has a number of fundamental flaws. The eastern provinces of the country were not covered by the system except only the western part of the country for all timber leaving through the port of Matadi. To date, the SGS system is at a standstill and is not operational. In any case, it is unclear how the new system can safely determine the legality of exports, since, according to IM-FLEG, the regulations governing the export of logs and sawnwood are not yet in place. It is also unclear how the new system can safely determine legality of exports anyway, since, according to the OI-FLEGT, the regulations governing the export of logs and sawn timber are still not complete.

Third parties’ rights

The contribution of forestry enterprises to local development takes place at two distinct levels:

The first level consists of the payment of taxes and usage fees.
Among these taxes is the cutting permit tax paid, which goes entirely to the province. The Forest Code (article 122) provides for the retrocession of 40% of the concession area tax to the decentralised administrative entities from which the timber originates, distributed as follows: 25% to the Province and 15% to the relevant decentralised entity. To date, 100% of this concession tax is collected by the Province in accordance with Ordinance-Law no. 13/001 of 23 February 2013 establishing the schedule of taxes, duties, fees and charges of the Provinces and Decentralised Territorial Entities as well as their distribution conditions.

The second level consists of a direct contribution from the concessionaire, established in the Specifications' social clause.
This social clause defines the post-negotiation commitments between the logging company and the local community(ies) and/or indigenous people in return for the development of the forests located on their customary territory. Ministerial order no. 023CAB/MIN/ECN-T/28/JEB/10 of 7 June 2010, establishing the model agreement constituting the social clause of the Specifications of the forest concession contract, formalises this agreement. Each social clause is co-signed by the Administrator of the Territory in which the forest concession is located, as witness and guarantor of its correct implementation, and is then validated by the Forest Administration. These agreements intervene throughout the duration of the forest concession's attribution, their periodicity being conditioned by the harvesting schedule outlined in the management plan of each new 5-year management block to be exploited. For the funding of the socio-economic infrastructures that are identified by local populations, a "Development Fund" is created and receives contributions from the forest concessionaire on the basis of a rebate per cubic meter of timber taken from the forest concession. The amount of this rebate varies, depending on the relevant species' classification, from $2 to $5/m³(USD).

As of now, new social clauses from the Specifications are negotiated, on the basis of ministerial order no. 072/CAB/MIN/EDD/DRCE/00/AAN/2018 of 12 November 2018 establishing the model agreement constituting a social clause in the forest concession contract's specifications.

Trade and transport

In the DRC, although the evacuation of timber in the eastern areas to the neighbouring countries' borders is done by road, the same does not apply for the western areas, which present another situation, where transport is subject to several load breaks:

Timber produced in the forest provinces of Tshopo (1,800 km), Tshuapa, Mongala, Equateur (650 km) and Mai-ndombe (350 km) is evacuated solely by river to Kinshasa. During this transport, the timber must be accompanied by a transit slip issued by the Forest Administration that oversees the logging operation, otherwise the timber cannot be allowed to transit (Art. 71 of ministerial order no. 84/CAB/MIN/ECN-DD/CJ/RBM/2016 of 29 October 2016 on conditions and rules for the production of lumber).
From Kinshasa, timber transported to the port of Matadi (350 Km) by rail or by road and that is subject to the export conditions set out below.

Under the terms of article 94 of law no. 011/2002 of 29 August 2002 relating to the Forest Code, the forest concessionaire has the exclusive right to harvest, within the concession area, all exploitable timber for local processing or for export.

This law also establishes log export quotas (art. 109) at a rate of 30% of annual production. This objective is far from being achieved because of the difficulties encountered in achieving further timber industrialisation in the country.

The regulation of 25 March 2014 states that all exports are subject to a series of formalities and procedures, namely:

Obtaining the import-export number from the General Secretariat for Trade.
Obtaining the Export Verification Certificate, following the control of the batch of product ready for export from the Congolese Inspection Office.
Obtaining the various authorisations required, wherever necessary.
Subscribing to an export licence and validating it with an approved commercial bank or the Central Bank of Congo.

Export procedures are set out in ministerial order no. 035/CAB/MIN/FINANCES/2016 and no. 005/CAB/MIN-COM/2016 of 23 March 2016 which are a harmonised procedures manual applicable to the Foreign Trade Single Window.

The classification of the species into categories (logs, squared timber, forks, sawn timber, edged timber, spurs, planed and peeled veneers, plywood, panelling, parquet, profiles, skirting board, pre-planed boards, strips, decking and brackets) and timber qualities (LM stands for superior quality, B for standard/medium quality and B/C for inferior quality) or the classification of its derived products shall be determined according to the timbers' price list that is valid for the period. Minimum prices for timber or its derivatives (according to species and quality) shall be set, taking into account all internal and external economic parameters, by the National Price List Commission. The ministerial order no. 018/CAB/MIN-ETAT/COMEXT/2018 of 21 October 2018 which supplements and amends ministerial order no. 006/CAB/MIN-ECONAT & COM/2009 of 17 March 2009 determines the organisation and functioning of the National Price List Commission regarding the prices of marketed products exported by the DRC.

Accordingly, the export of timber requires the following documents:

The sales contract validated by the Forest Management Directorate, with the pro forma and final invoice attached, as well as the packing list or the specifications list;
The authorisation required from the competent authority, in particular the CITES export permit issued by the CITES Management Authority for the protected species listed in Appendix 2.
The report on the batch ready for export, which is established by the Congolese Inspection Office following verification of the batch ready for export at the log yard.
The EB export licence covering the exported goods declaration. It is obtained from a commercial bank after validation by the Central Bank of Congo.
The phytosanitary certificate and certificate of origin obtained from the Forest Management Directorate after disinfection of the timber.

The export and shipment verification certificate issued by the Congolese Inspection Office following the usual checks. Lastly, the maritime freight will intervene.

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