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Case#8: Assessment on Industrial Regulations

Background

Before 2012:
Raw ore could be exported out with minimal tax (i.e. about US$1 per ton)

In 2009, the Indonesian Parliament passed a new Mining Law (Law No. 4/2009) with two major aspects, which have caused a dampening effect on foreign investment in the resources sector.

• Starting from Jan 2014:
Export of raw unprocessed minerals is prohibited, requiring mining companies to process and refine their product in Indonesia before exporting

• Before the export ban really comes into force…
From 2012 to Jan 2014:
High export tax imposed on exported raw ore
--- an average additional export tax of 20% on “base price”, on 14 mineral ore exports including copper, gold and nickel.
★ the export tax for certain concentrates will even rise to 60% by the latter half of 2016

Government aims to…

React to Increased Resource Nationalization:
The global trend of increased resource nationalization is pushing up the costs of mining for international companies and giving governments in emerging market countries more cash and clout. The stated purpose of this mandatory in-country processing requirement is to follow the global trend and nationalize mining and metal processing within Indonesia. The regulation encourages local processing in order to increase the value of the minerals for export and preserve the country’s resource supplies. It is also supposed to be a way to entice miners into processing their ore locally and so that to create more job opportunities for domestic economy growth.

Consequences:
Hard times for mining companies, domestic economy, and international investors

Under the law, raw ores and semi-processed minerals with purity levels below the Government's threshold can no longer be exported starting from 12 January 2014. However, it became apparent in late 2013 that, despite five years lead time, very few if any Indonesian miners had arranged compliance with the obligation to set up processing plants to process their ore to the required standard set by the Government.
• Although in the long-term Indonesia’s profit from ore processing is expected to increase, there are fears of short-term damage to the sector, employment in the sector and to Indonesia’s economy. According to the Indonesian Association of Mineral Entrepreneurs the export industry lost US$164m per month in depressed sales of nickel and bauxite, resulting in the dismissal of almost 15,000 mining workers. Small mining companies, unable to cope with the increased administrative burden and cost, have been affected the most by the New Regulations.

• Downstream processing:
The regulation effectively compels mining companies to consider investments in additional smelting and refining facilities. However, capital investments and operating costs required for smelters and refineries are extremely large. Capital requirements for building smelters continue to grow, which translates into high capital costs per ton of output. The opportunity costs of such huge capital investments in Indonesia, when there are pressing needs for capital investment in other areas, are extremely high. In addition, operating costs of smelters and refiners, and particularly energy costs, are also high.

• The ban would lower domestic prices for ores and concentrates, significantly impacting the economy and miners and may make mining uneconomical. The ban would compel miners to sell their excess supplies of concentrates and ores to smelters at prices lower than the world price. A second part of the revenue loss to miners is an efficiency loss to the economy. This efficiency loss arises because the unprocessed minerals that would have been exported under free trade, earning the world price, would have cost only an amount equal to the marginal cost of production to produce. Under the export ban, these exports would not be produced and sold on the world market for more than it cost to produce them.

• Further potential flow-on effects include disruptions to supply agreements, shipping charters, and trade agreements around the world, leading to instances of "force majeure" notifications and subsequent disputes. For example, Indonesia accounts for 15 percent of global nickel supplies, with China one of its major customers for high-grade laterite nickel, which is used in the production of stainless steel. The flow-on effects of an increase in nickel prices and an interruption to Chinese steel production could be significant for the global construction and manufacturing sectors. The ban may also give rise to claims by investors against Indonesia pursuant to investment treaties.

• The halting of shipments is not only damaging to Indonesia’s economy but also to its investment environment. The regulatory changes have been met with resistance from international mining companies, and investor confidence in Indonesia’s mining sector has already suffered as a result. This sudden change highlights the economic volatility of this emerging market.

Recommendations?

• Use selective policies, aimed at downstream processing in specific minerals with profitable investment profiles.
• Focus on fiscal policy rather than the production side of the minerals industry. Changes in the royalty and income tax regime would appear to be the most effective, least costly policy approach.

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