Circular No. 18/2018/TT-BKHCN dated December 18, 2018 of the Ministry of Science and Technology on guidelines for implementation of a number of articles of Decree No. 119/2017/ND-CP dated November 01, 2017 on penalties for administrative violations against regulations on standards, measurement and quality of goods

THE MINISTRY OF SCIENCE AND TECHNOLOGY

CircularNo. 18/2018/TT-BKHCN dated December 18, 2018 of the  Ministry of Science and Technology on guidelines for implementation of a number of articles of Decree No. 119/2017/ND-CP dated November 01, 2017 on penalties for administrative violations against regulations on standards, measurement and quality of goods

Pursuant to Decree No. 95/2017/ND-CP dated August 16, 2017 of the Government on functions, duties, rights and organizational structure of the Ministry of Science and Technology;

Pursuant to Decree No. 119/2017/ND-CP dated November 01, 2017 of the Government on penalties for administrative violations against regulations on standards, measurement and quality of products and goods;

At the request of Chief Ministry Inspectorate, Director General of Directorate for Standards; Metrology and Quality and Director General of Department of Legal Affairs;

The Minister of Science and Technology promulgates a Circular on guidelines for implementation of a number of Articles of Decree No. 119/2017/ND-CP dated November 01, 2017 of the Government on penalties for administrative violations against regulations on standards, measurement and quality of products and goods.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular provides guidelines for implementation of a number of Articles of Decree No.119/2017/ND-CP dated November 01, 2017 of the Government on penalties for administrative violations against regulations on standards, measurement and quality of products and goods (hereinafter referred to as “Decree No.119/2017/ND-CP)”.

Article 2. Subjects of application

1. Organizations and individuals committing administrative violations against regulations on standards, measurement and quality of products and goods.

2. Persons having power to impose penalties for and power to make records of administrative violations against regulations on standards, measurement and quality of products and goods specified in Chapter III of Decree No.119/2017/ND-CP (hereinafter referred to as “competent persons”).

3. Organizations and individuals committing administrative violations against regulations on standards, measurement and quality of products and goods.

Article 3. Principles for imposing penalties

1. Penalties for administrative violations against regulations on standards, measurement and quality of products and goods shall be imposed in compliance with the principles specified in Clause 1 Article 3 of the Law on Handling of Administrative Violations dated June 20, 2012 (hereinafter referred to as “the Law on Handling of Administrative Violations”).

2. If any administrative violation against regulations on standards, measurement and quality of products and goods is found, the competent person on service specified in Chapter III of Decree No.119/2017/ND-CP shall request the violators to stop their action immediately. Such request shall be mentioned in the inspection or administrative violation record.

3. Competent persons shall take actions as specified in Article 34, 35, 36, 37, 38, 39, 40 and 41 of Decree No.119/2017/ND-CP. Persons having power to make administrative violation records but not enough power to impose penalties for such violations shall transfer the case to a competent person as regulated by laws.

Article 4. Determination of value of unconformable goods and goods that have been sold

1. The value of unconformable goods shall be determined as prescribed in Article 60 of the Law on Handling of Administrative Violations. Total value of unconformable goods on the date of administrative violations shall be determined under regulations specified in Section 2 Chapter II of Decree No.119/2017/ND-CP and the following formula:

(Total value of unconformablegoods shall be equal to the quantity of unconformablegoods discovered on the inspection date multiplied by the price of such goods).

2. The value of unconformable goods that have been sold shall be determined as a basis for calculating fines specified in Article 17, 18, 19 and 20 of Decree No.119/2017/ND-CP under regulations in Article 13b of Decree No.132/2008/ND-CP dated December 31, 2008 of the Government on enforcement of a number of Articles of the Law on Product and Goods Quality which is amended in Clause 6 Article 1 of Decree No.74/201S/ND-CP dated May 15, 2018 of the Government.

Article 5. Determination of illegal profit earned from committing administrative violations

The illegal profit earned from committing administrative violations specified in Clause 5 Article 8, Point b Clause 7 Article 10, Clause 3 Article 14, Clause 3 Article 15, Clause 3 Article 16 of Decree No.119/2017/ND-CP shall be determined in compliance with regulations in Chapter III of Decree No.86/2012/ND-CP dated October 19, 2012 of the Government on enforcement of a number of Articles of the Law on Measurement (hereinafter referred to as “Decree No.86/2012/ND-CP”).

Article 6. Conclusion on errors of measuring instruments and measurement errors

Conclusions on errors of measurement instruments and measurement errors may only be legally accepted if they are made by one of the following entities:

1. Measurement inspector issued with an inspector card by the Directorate for Standards; Metrology and Quality

2. Scientific and technological inspector; person responsible for conducting scientific and technological inspection

3. The chief inspector

4. Measurement authorities; measurement inspection authorities

5. Validating authorities assigned to verify the measurement instruments by the Directorate for Standards; Metrology and Quality

Chapter II

PARTICULAR PROVISIONS

Section 1. ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON MEASUREMENT

Article 7. Violations and penalties of violations against regulations on production of measuring instruments specified in Article 6 of Decree No.119/2017/ND-CP

1. Violation specified in Point c Clause 1 Article 6 of Decree No.119/2017/ND-CP is the act of producing measuring instruments without units of measurement or with units of measurements that are inconsistent with regulations in Article 5 and 6 of Decree No. 86/2012/ND-CP.

2. Violation specified in Point a Clause 4 Article 6 of Decree No.119/2017/ND-CP is the act of producing measuring instruments whose specifications are different from those of the instrument samples approved by the Directorate for Standards; Metrology and Quality.

3. Suspension of decision on approval for sample measuring instrument samples specified in Clause 5 Article 6 of Decree No.119/2017/ND-CP is the event in which the competent persons specified in Article 34, 35, 36, 37, 38, 39, 40 and 41 of Decree No.119/2017/ND-CP issues a decision suspending the decisions on approval for instrument samples for 1 to 3 months by the organization or individual committing violations provided in Clause 4 Article 6 of Decree No.119/2017/ND-CP.

The procedure for suspending the decisions on approval for measuring instrument samples shall comply with regulations in Article 80 of the Law on Handling of Administrative Violations.

Article 8. Violations against regulations on import of measuring instruments specified in Article 7 of Decree No.119/2017/ND-CP

1. Violation specified in Point a Clause 3 Article 7 of Decree No.119/2017/ND-CP is the act of importing Group 2 measuring instruments without decision on approval for measuring instrument samples issued by the Directorate for Standards; Metrology and Quality.

2. Violation specified in Point a Clause 4 Article 7 of Decree No.119/2017/ND-CP is the act in of importing measuring instruments whose specifications are different from those of the instrument samples approved by the Directorate for Standards; Metrology and Quality.

Article 8. Violations against regulations on sales of measuring instruments specified in Article 9 of Decree No.119/2017/ND-CP

1. Violation specified in Point a Clause 2 Article 9 of Decree No.119/2017/ND-CP is the act of selling Group 2 measuring instruments without the validation or calibration certificate or the failure to present such certificate to the competent authority as prescribed in Circular No.24/2013/TT-BKHCN dated September 30, 2013 of the Minister of Science and Technology on validation, calibration and testing of measuring instruments and measurement standards (hereinafter referred to as “Circular No.24/2013/TT-BKHCN”) and Clause 2 Article 4 of Circular No.23/2013/TT-BKHCN dated September 26, 2013 of the Minister of Science and Technology on measurement of Group 2 measuring instruments (hereinafter referred to as “Circular No.23/2013/TT-BKHCN”).

2. Violation specified in Point b Clause 2 Article 9 of Decree No.119/2017/ND-CP is the act of selling Group 2 measuring instruments without decision on approval for measuring instrument samples issued by the Directorate for Standards; Metrology and Quality.

3. Violation specified in Point c Clause 2 Article 9 of Decree No.119/2017/ND-CP is the act of selling measuring instruments whose specifications are different from those of the instrument samples approved by the Directorate for Standards; Metrology and Quality.

Article 10. Violations and penalties of violations against regulations on use of Group 2 measuring instruments specified in Article 10 of Decree No.119/2017/ND-CP

1. Violation specified in Point a Clause 1 Article 10 of Decree No.119/2017/ND-CP is the act of using Group 2 measuring instruments without a validation certificate (stamp, seal, or certificate) conformable to regulations of Circular No.24/2013/TT-BKHCN.

2. Violation specified in Point d Clause 1 Article 10 of Decree No.119/2017/ND-CP is the act of using Group 2 measuring instruments requiring periodic comparative testing without having them undergo validation by an appointed testing unit.

3. Additional penalties specified in Clause 6 of Article 10 of Decree No.119/2017/ND-CP shall be imposed as follows:

a) Confiscation of exhibits and instruments used for violation commitment specified in Point a Clause 6 of Article 10 of Decree No.119/2017/ND-CP is the event in which the competent person issue a decision on confiscation of measuring instrument used for committing the violation by the organization or individual.

The procedure for confiscating and handling exhibits and instruments in the violation shall comply with regulations in Article 81 and 82 of the Law on Handling of Administrative Violations and guiding documents on management and handling of confiscated exhibits and instruments used in administrative violations transferred to the State fund.

b) Suspension of certificate of eligibility for business specified in Point b Clause 6 Article 10 of Decree No.119/2017/ND-CP is the event in which the competent person issues a suspension decision, which is mentioned in the penalty decision.

The procedure for suspending the certificate of eligibility for business issued by the competent regulatory agency shall comply with regulations in Article 80 of the Law on Handling of Administrative Violations.

4. a) Revocation of expired validation or calibration certificates specified in Point a Clause 7 Article 10 of 119/2017/ND-CP is the event in which the competent person requests the violator to have his expired validation or calibration certificate applied to the measuring instrument currently in use revoked.

5. Notes when imposing penalties specified in Article 10 of Decree No.119/2017/ND-CP:

a) The value of measuring instruments used as a basis for calculating fines and the maximum fine a competent person may impose is the value of one or more than one measuring instrument used for committing one violation;

b) Penalties for violations on regulations on calibration applied to use of Group 2 measuring instruments specified in Point a, b and c Clause 1 Article 10 of Decree No.19/2017/ND-CP shall be imposed in case the measuring instruments are calibrated under regulations in Clause 2 Article 4 of Circular No.23/2013/TT-BKHCN.

Article 11. Violations against regulations on Group 2 measurement processes specified in Article 14 of Decree No.119/2017/ND-CP

1. Violation specified in Point a Clause 1 Article 14 of Decree No.119/2017/ND-CP is the measuring instrument user’s failure to facilitate the supervision and inspection of the measurement process, measuring methods, measuring instruments and quantity of goods and services conducted by the entity in charge.

Example 1:There is a lack of available beakers, measuring flasks and measuring cylinders in petrol retail stores as prescribed in Clause 4 Article 6 of Circular No.15/2015/TT-BKHCN dated August 25, 2015 of the Minister of Science and Technology on measurement and quality in petroleum trade (hereinafter referred to as "Circular No.15/2015/TT-BKHCN”), Decree No.83/2014/ND-CP dated September 03, 2014 of the Government on petrol trade and Decree No.08/2018/ND-CP dated January 15, 2018 of the Government on amendments to a number of Decrees concerning conditions for business investment under state management performed by the Ministry of Industry and Trade.

Example 2:The violator fails to conduct or hire an qualified entity to conduct periodic validation (if the former is incapable of conducting such validation) of measuring instruments, measuring system and conditions for measurement of such organization or individual; fails to retain the record of such periodic validation under regulations provided in Clause 5 Article 6 of Circular No.15/2015/TT-BKHCN or Clause 4 Article 4 of Circular No.22/2013/TT-BKHCN dated September 26, 2013 of the Minister of Science and Technology on management of measurement in gold trading and management of quality of gold jewelry in the market.

2. Violation specified in Point b Clause 1 Article 14 of Decree No.119/2017/ND-CP is the failure to satisfy technical measurement requirements applied to measuring instruments, measurements conditions and measurement errors as regulated by the competent authority.

Example:The retailer fails to satisfy one of the measurement requirements provided in Article 4 of Circular No.09/2017/TT-BKHCN dated June 27, 2017 of the Minister of Science and Technology on measurement in retail when measuring the weight of goods.

Article 12. Violations against regulations on quantity of packed goods in production, import and sales thereof specified in Article 15 and 16 of Decree No.119/2017/ND-CP

1. Violations specified in Point a Clause 1 Article 15 and Point a Clause 1 Article 16 of Decree No.119/2017/ND-CP are the acts of producing or importing or selling packed goods without the quantity label or with the quantity label that fails to meet the technical measurement requirements for quantity of packed goods; or failing to specify the goods quantity or specify such quantity non-compliance with regulations on measurement units provided in Decree No.86/2012/ND-CP.

2. Violations specified in Point b Clause 1 Article 15 and Point b Clause 1 Article 16 of Decree No.119/2017/ND-CP are the acts of producing or importing or selling packed goods of which the quantity is specified directly on the goods or on the package or on the goods label is not consistent with the one specified in the attached document or fails to meet technical measurement requirements established by such organizations or individuals for Group 1 packed goods or by the competent authority for Group 2 packed goods.

3. Violations specified in Clause 2 Article 15 and Clause 2 Article 16 of Decree No.119/2017/ND-CP are the acts of producing or importing packed goods of which the average quantity is less than the permissible one specified in Circular No.21/2014/TT-BKHCN dated July 15, 2014 of the Minister of Science and Technology on regulations on measurement of packed goods.

Section 2. ADMINISTRATIVE VIOLATIONS AGAINST TECHNICAL STANDARDS AND REGULATIONS AND QUALITY OF GOODS

Article 13. Violations against regulations on declaration of applicable standards specified in Article 17 of Decree No.119/2017/ND-CP

1. Violation specified in Clause 1 Article 17 of Decree No.119/2017/ND-CP is the producer’s or importer’s failure to declare the applicable standards as prescribed in Article 23 of the Law on Quality of products and goods.

2. Violation specified in Clause 5 Article 17 of Decree No.119/2017/ND-CP is the producer’s or importer’s failure to establish and apply the quality management system as required or fails to comply with requirements of the applied quality management system or fails to apply the quality management systems declared.

Article 14. Violations against regulations on standard conformity specified in Article 18 of Decree No.119/2017/ND-CP

Violation specified in Clause 1 Article 18 of Decree No.119/2017/ND-CP is the act of producing or importing goods of which quality fails to conform to the standards declared by such organization or individual.

Article 15. Violations against regulations on regulation conformity specified in Article 19 of Decree No.119/2017/ND-CP

Failure to use conformity markings specified in Point c Clause 3 Article 19 of Decree No.119/2017/ND-CP for goods or products registered declaration of conformity and bearing a marking of conformity as required by the corresponding national technical regulations. This does not apply to goods or products requiring conformity declaration but the conformity marking is not mandatory by the corresponding national technical regulations such as petrol, diesel fuel, LPG

Article 16. Violations against regulations on quality of goods for sale specified in Article 20 of Decree No.119/2017/ND-CP

1. The organization or individual that sells goods without declaration of applicable standards or goods of which quality is not conformable to the applied standards declared or of which the declaration of applicable standards is not consistent with the corresponding technical regulations or regulations issued by the competent authority shall face penalties specified in Article 17 of Decree No.119/2017/ND-CP

2. Violation specified in Clause3 Article 20 of Decree No.119/2017/ND-CP is the act of selling goods without declaration of applied standards by the producer or importer thereof.

Penalties specified in Clause 3 Article 20 of Decree No.119/2017/ND-CP shall be imposed if the seller is not the producer or import of the same goods.

Article 17. Provision of false information about standards, technical regulations, measurement, goods quality for consumers or on mass media specified in Clause 1 Article 24 of Decree No.119/2017/ND-CP

Violation specified in Clause 1 Article 24 of Decree No.119/2017/ND-CP is any of the following violations committed by the producer, importer or seller:

1. Provision of goods label information inconsistent with the information provided in the document on declaration of applicable standards or regulations or inconsistent with the goods quality in reality.

2. Provision of information provided in the transaction documents or nameplate of goods sellers about goods or products registered standard and regulation conformity declaration or certified to be conformable to the standards and regulations or applied the quality management system during production despite the fact that such goods or products are not registered conformity declaration or not certified to be conformable or not under management of the quality management system during production.

3. Provision of false information about quality of goods or products on mass media

Section 3. ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON GOODS LABELS AND BARCODES

Article 18. Violations against regulations on compulsory information on goods labels or compulsory information specified on goods according to nature thereof specified in Article 31 of Decree No.119/2017/ND-CP

1. Violation specified in Clause 1 Article 31 of Decree No.119/2017/ND-CP is the production, import, transport, storage or sale of goods of which label fails to specify or falsely specifies one of the compulsory information on goods labels or compulsory information on labels according to goods characteristics prescribed in Article 10 of Decree No.43/2017/ND-CP dated April 14, 2017 of the Government on goods labels, except for the cases of import of goods with original label but not attached to any sub-label during the customs clearance procedure, in which cases, the goods must be labeled before being put on sale.

2. The "enforced destruction of goods with unconformable label" specified in Clause 8 Article 31 of Decree No.119/2017/ND-CP shall be applied in case the illegal label cannot be separated from the goods.

Article 19. Violations against regulations on barcode use specified in Article 32 of Decree No.119/2017/ND-CP

1. Violation specified in Point b Clause 1 Article 32 of Decree No.119/2017/ND-CP is the producer’s or importer’s failure to follow the procedure for renewal of the certificate of barcode use rights when it is expired and continue to use such goods barcode.

2. Violation specified in Point dd Clause 1 Article 32 of Decree No.119/2017/ND-CP is the failure to notify in writing the use of foreign barcodes together with the documents proving such use to the Directorate for Standards; Metrology and Quality when they are used for goods or products domestically produced or processed.

3. Violation specified in Point a Clause 2 Article 32 of Decree No.119/2017/ND-CP is the producer’s or importer’s addition of the code with Vietnam code (893) prior to the barcode on goods without grant of certificate of barcode use rights by the Directorate for Standards; Metrology and Quality.

4. Violation specified in Point a Clause 3 Article 32 of Decree No.119/2017/ND-CP is the act of producing, processing, packaging, dividing goods for export under contracts or at the request of foreign customers prints the foreign barcodes on the goods label without permit given by foreign competent authority or the organization possessing such foreign barcode.

5. Violation specified in Point b Clause 3 Article 32 of Decree No.119/2017/ND-CP is the production or sale of goods without certificate of barcode use rights when using symbols that resemble a barcode to make the consumers believe that the producer or seller has been granted a certificate of barcode use rights by the Directorate for Standards; Metrology and Quality or GS1.

Article 20. Violations against regulations on use and grant of certificates on barcode use rights specified in Article 33 of Decree No.119/2017/ND-CP

1. Violation specified in Point a Clause 1 Article 33 of Decree No.119/2017/ND-CP is the grant of the certificate of barcode use rights to goods producers, importers or sellers without the competence to do so.

2. Violation specified in Point b Clause 1 Article 33 of Decree No.119/2017/ND-CP is the goods producer’s, importer’s or seller’s use of the certificate of barcode use rights not issued by the Directorate for Standards; Metrology and Quality or GS1.

Section 4. POWER AND PROCEDURES FOR IMPOSING PENALTIES FOR ADMINISTARTIVEVIOATIONS AND APPLYING FORMS IN VIOLATION HANDLING

Article 21. Power and procedures for imposing penalties of inspectors and persons responsible for conducting scientific and technological inspection specified in Article 34 and 43 of Decree No.119/2017/ND-CP

1. Inspectors and persons responsible for conducting scientific and technical inspection specified in Clause 1 Article 34 of Decree No.119/2017/ND-CP include inspectors working for the Inspectorate of the Ministry of Science and Technology, inspectors of the Department of Science and Technology; persons responsible for conducting specialized inspection of the Directorate for Standards; Metrology and Quality, Sub-Department of Quality Measurement Standards.

2. The chief inspectors of the Ministry of Science and Technology Inspectorate, Directorate for Standards; Metrology and Quality, Department of Science and Technology Inspectorate and Sub-Department of Quality Measurement Standards may use the stamp of the entity in charge of inspection when issuing documents for employing inspection methods.

3. Procedures for imposing penalties for administrative violations

a) Power to make records of administrative violations against regulations on standards, measurement and quality of goods shall comply with regulations in Article 43 of Decree No.119/2017/ND-CP.

b) The chief inspector for standards, measurement and quality of goods or employees on service is entitled to make a record on administrative violation if discovering any administrative violation against regulations on standards, measurement and quality of goods. The agency issuing inspection decisions or the management authority of the recording employee shall promptly prepare a document and transfer such document to a competent person as regulated be laws.

The document on transfer of administrative violation shall include an official dispatch of the entity transferring such document; inspection decision or written document on duty assignment; inspection record; administrative violation record (if any) and proofs of administrative violations and other professional written documents.

Article 22. Applying forms in imposition of administrative penalties

1. Inspection forms issued by the Government Inspectorate and Ministry of Science and Technology shall be used for specialized inspection.

2. Other forms used for handling of administrative violations shall be applied in accordance with regulations provided in the Government s Decree on enforcement of the Law on Handling of Administrative Violations and other relevant law provisions.

Chapter III

IMPLEMENTATION

Article 23. Effect

1. This Circular takes effect on February 15, 2019.

2. Circular No.19/2014/TT-BKHCN dated July 01, 2014 of the Minister of Science and Technology providing guidelines for enforcement of a number of Article of Decree No.80/2013/ND-CP dated July 19, 2013 of the Government on penalties for administrative violations against regulations on standards, measurement and quality of goods shall cease to take effect from the effective date of this Circular.

3. If legislative documents mentioned in this Circular is amended or replaced, the newer documents shall prevail.

Article 24. Implementation responsibility

1. Persons having the power to impose penalties for and power to make records of administrative violations against regulations on standards, measurement and quality of goods specified in Chapter III of Decree No.119/2017/ND-CP ad relevant organizations and individuals shall take responsibility to implement this Circular.

2. Should any question arise during implementation, the entities concerned shall promptly inform the Ministry of Science and Technology for further instructions./.

For the Minister

Deputy Minister

Tran Van Tung