MINISTRY OF SCIENCE AND TECHNOLOGY
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No: 19/2014/TT-BKHCN
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Hanoi, July 1, 2014
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CIRCULAR
PROVIDING GUIDANCE ON THE IMPLEMENTATION OF A NUMBER OF ARTICLES
OF THE GOVERNMENT’S DECREE No. 80/2013 / ND-CP DATED JULY 19, 2013 DEFINING
PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN THE FIELD OF STANDARD, METROLOGY AND
QUALITY OF PRODUCTS AND GOODS
Pursuant to the
Government’s Decree No. 20/2013 / ND-CP dated February 26, 2013 defining the
functions, tasks, entitlements and organizational structures of the Ministry of
Science and Technology;
Pursuant to the
Government's Decree No. 80/2013 / ND-CP dated July 19, 2013 defining penalties
for administrative violations in the field of standards, metrology and quality
of products and goods;
At the request of the
Chief Inspector of the Ministry, the General Director of the Directorate for
Standards, Metrology, and Quality and the Director of the Legal Department,
The Minister of
Science and Technology provides guidance on the implementation of a number of
articles of the government’s decree no. 80/2013 / ND-CP dated July 19, 2013
defining penalties for administrative violations in the field of standards,
metrology and quality of products and goods.
Chapter
I
GENERAL
PROVISIONS
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This Circular shall guide
the implementation of a number of articles of the Government’s decree no.
80/2013 / ND-CP dated July 19, 2013 defining penalties for administrative
violations in the field of standard, metrology and quality of products and
goods ( hereinafter referred to as Decree 80/2013/ND-CP)
Article
2. Regulated entities
1. Organizations and individuals committing administrative
violations in the field of standard, metrology and quality of products and
goods.
2.
Competent organizations and individuals in penalties for administrative
violations in the field of standard, metrology and quality of products and
goods.
3. Other entities
involved in penalties for administrative violations in the field of standard,
metrology and quality of products and goods in accordance with the law.
Article
3. Penalty principles
1. Penalties for
administrative violations in the field of standard, metrology and quality of
products, goods shall comply with the provisions of Clause 1, Article 3 of the
Law on handling of administrative violations dated June 20, 2012 (hereinafter
referred to as Law on handling of administrative violations). The maximum
amount of fine applied to penalties for administrative violations in the field
of standard, metrology and quality of products, goods shall comply with the
provisions of Article 3 of Decree 80/2013 / ND-CP.
2. When detecting
organizations and individuals committing administrative violations of standard,
metrology and quality of products or goods, competent persons on duty
prescribed in Chapter III of Decree 80 / 2013 / ND-CP shall force such
organizations and individuals to immediately stop their violations. Forcing to
stop the violations shall be recorded in working minutes, inspection minutes or
administrative violation minutes or inspection conclusions.
3. Competent persons in
penalties for administrative violations of standard, metrology and quality of
products and goods specified in Article 29, Article 30 and Article 31 of Decree
80/2013 / ND-CP shall exercise rights to penalize under the provisions of this
Decree. Non-competent persons in penalties for administrative violations shall
transfer the case file to competent persons for consideration on handling.
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1. The determination of
the total value of violated products or goods at the time of committing
administrative violations prescribed in Chapter II of Decree 80/2013 / ND-CP
shall be calculated by the following formula:
The total value of
violated products or goods = number of the violated products or goods detected
x price of the violated product or goods at the time of the administrative
violations.
The basis for valuation
of violated products or goods shall comply with the provisions of Article 60 of
the Law on handling of administrative violations.
2. Depending on types of
violated products or goods, the valuation shall be based on one of the bases
according to the following order of priority:
a) The list price or
price in the contract, purchase invoices or import declarations;
b) The price on notice of
local financial agencies; in the absence of notification, the price in the
local market at the time of administrative violations
c) The price of products,
goods if they are stored goods of production facilities and have not sold or
the market price of the products, goods of the same features, technique, use at
the time of administrative violations.
Article
5. Determination of illicit profits earned from administrative violations
1. The determination of
illicit profits earned from administrative violations specified in Paragraph 5
of Article 8, point b, paragraph 7 of Article 10, Paragraph 3 of Article 14,
Paragraph 3 of Article 15, paragraph 3 of Article 16 of Decree 80 / 2013 /
ND-CP shall comply with the provisions of Chapter III of the Government's
Decree 86/2012 / ND-CP dated October 19, 2012 providing instructions on the
implementation of a number of articles of the Law of measurement (hereinafter
referred to as Decree 86/2012 / ND-CP).
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Article
6. Conclusion of the variance of measurement instruments and measures
The conclusion of the
variance of measurement instruments and variance of measures only has legal
guarantee if it is given by the following organizations and individuals :
1. Measurement checkers
certified and granted of cards by the Directorate for Standards, Metrology, and
Quality;
2. Inspectors of Science
and Technology; inspection officials specializing in Science and Technology;
3. Chief inspector
specializing in Science and Technology;
4. State management
agencies in charge of measurement.
Chapter
II
SPECIFIC
PROVISIONS
Section
1. VIOLATIONS OF ADMINISTRATION ON
MEASUREMENT
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1. Violations prescribed
at Point c, Clause 1, Article 6 are acts of organizations and individuals
producing measurement instruments without recording, engraving units of
measurement or recording or engraving units of measurement inconsistent with
stipulated legal units of measurement in Decree 86/2012 / ND-CP.
2. Violations prescribed
at Point a, Clause 3, Article 6 are acts of organizations and individuals
producing the measurement instruments in the list of group 2, but these
instruments have no decision on type approval of the Directorate for Standards,
Metrology, and Quality.
3. Violations specified
in paragraph 4 of Article 6 are acts of organizations and individuals producing
measurement instruments with one or more changed details compared with the
application of the measurement instrument type of group 2 approved by the
Directorate for Standards, Metrology, and Quality .
4. Deprivation of right
to enjoyment of decision on type approval of measurement instruments specified
in Paragraph 5 of Article 6 means competent persons specified in Article 29,
Article 30 and Article 31 of Decree 80/2013 / ND-CP issue a decision on
Deprivation of right to enjoyment of the decision on type approval from 01
month to 03 months for violating organizations and individuals to repair
measurement instruments in accordance with the approved measurement instrument
type .
Article
8. Violations of import of measurement instruments specified in Article 7 of
Decree 80/2013 / ND-CP
1. Violations prescribed
at Point a, Clause 3, Article 7 are acts of organizations and individuals
producing the measurement instruments in the list of group 2, but these
instruments have no decision on type approval of the Directorate for Standards,
Metrology, and Quality .
2. Violations specified in
paragraph 4 of Article 7 are acts organizations and individuals importing
measurement instruments inconsistently with applications of the approved
measurement instrument type in group 2 stored in the Directorate for Standards,
Metrology, and Quality or organizations, individuals importing the measurement
instruments
Article
9. Violations of trade of measurement instruments specified in Article 9 of
Decree 80/2013 / ND-CP
1. Violations specified
in Paragraph 2 of Article 9 are acts of organizations and individuals trading
measurement instruments in the list of group 2 without having or presenting the
verification paper or verification stamp or verification mark (hereinafter
referred to as verification certificate).
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Article
10. Violations of use of measurement instruments in group 2 specified in
Article 9 of Decree 80/2013 / ND-CP
1. Violations specified
in point a, Paragraph 2 of Article 10 are acts of organizations and individuals
using measurement instruments and having one of the following violations:
a) Organizations and
individuals using measurement instruments have no suitable verification
certificate under the provisions of the Minister of Science and Technology’s
Circular No. 24/2013 / TT-BKHCN dated September 30, 2013 defining inspection,
calibration, test of measurement instruments , measurement standards
(hereinafter referred to as Circular 24/2013 / TT-BKHCN);
b) Organizations and
individuals using measurement instruments use the verification certificate with
erased or emended contents (except for verification term ).
2. Violations prescribed
at Point c, Clause 2, Article 10 are acts of organizations and individuals
removing the verification certificate without permission, then sticking or
gluing it on measurement instruments without the witness of the Directorate for
Standards and Quality or the Department of Standards, Metrology, and Quality .
3. Violations prescribed
at Point d, Clause 2, Article 10 are acts of organizations and individuals
using the measurement instruments in the list of group 2 as prescribed which
must be verified periodically by control verification but are not verified in
the assigned verification organizations by such organizations and individuals.
4. Violations specified
in Paragraph 4 of Article 10 are acts of organizations and individuals using
measurement instruments and having one of the following violations:
a) Measurement
instruments which are used do not meet regulations on management of measurement
techniques for each specific type of measurement instrument;
b) Measurement range or
precision levels are inconsistent with the purpose of use;
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5. Violations prescribed
at Point a, Clause 5, Article 10 are use of verification certificates not
granted by verification organizations prescribed in Circular 24/2013 / TT-THE
MINISTRY OF SCIENCE AND TECHNOLOGY and erased, emended the term of verification
certificates.
6. Violations specified
in Point b Paragraph 5 of Article 10 are acts of organizations and individuals
using measurement instruments having one of the following violations:
a) Measurement
instruments which are used have a valid verification certificate but using
organizations and individuals themselves repair, replace, attach or cut
details, equipment;
b) Measuring instruments
which are used have a valid verification certificate but organizations and
individuals themselves adjust one or more details;
b) Measuring instruments
which are used have a valid verification certificate but organizations and
individuals have an impact on one or more details of measurement instruments
which changes the technical condition and metrological characteristics of the
measurement instruments, regardless of the test results of variance of the
measurement instruments ;
For example: In case
measurement instruments of organizations and individuals which are operating
normally and are irregularly inspected the variance, the variance is greater
than the tolerance variance and on that inspected measurement instruments, when
turning off the power and inspect again the variance, the variance is within
the allowed limits. This demonstrates that using organizations and individuals
have had an impact (through turning on, interrupting the power supplied to the
measurement instruments) to alter the technical condition and measurement
characteristic of the measurement instruments (removal of variance of
measurement instruments detected).
7. Additional penalties
prescribed in paragraph 6 of Article 10 shall be given as follows:
a) Confiscating the
exhibits and instruments for committing violations specifies in Point a,
Paragraph 6 of Article 10 means competent persons issue a decision to confiscate
measurement instruments used by organizations and individuals to commit
violations; confiscate details, instruments adjusted or replaced by using
organizations and individuals details compared with the record of measurement
instruments approved by competent agencies ;
Procedures for
confiscation, handling of exhibits, confiscated violated measurement
instruments shall comply with provisions of Article 81, Article 82 of Law on
handling of administrative violations and documents related to guidance on management
and handling of exhibits, confiscated instruments for putting into state
funds due to administrative violations.
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8. Force of cancellation
of verification certificates specified in Point a Paragraph 7 of Article 10
means violating organizations themselves cancel the verification certificates
under the supervision of the agencies issuing the decision on penalty. If
violating organizations and individuals do not themselves cancel the violated
verification, agencies issuing the decision on penalty shall enforce the cancellation.
9. Some points are
necessary to note when applying Article 10 to penalties:
a) The value of the
measurement instruments as a basis for determining penalty levels, penalty
competence shall be based on the value of 01 measurement instrument and penalized
according to violations. The valuation of the measurement instruments used to
commit administrative violations shall comply with the provisions of Article 60
of the Law on handling of administrative violations.
b) Depending on the type
of violated measurement instruments, the valuation of the measurement
instruments shall comply with the provisions of Clause 2, Article 4 of this
Circular.
Article
11. Violations of measurement for measurement of group 2 prescribed in Article
14 of Decree 80/2013 / ND-CP
1. Violations prescribed
at Point a, Clause 1, Article 14 means acts of measurement instrument’s users
taking measurements without compliance with the requirements of professional in
making measurements of group 2 as prescribed by the management agencies of
measurement.
For example: Staff and
employees directly making measurements in the business of liquefied petroleum
gas (LPG) have not been trained and certified completion of training program of
measurement management in Clause 5, Article 9, Paragraph 2 of Article 10 of the
Minister of Science and Technology’s Circular No. 12/2010 / TT-BKHCN dated July
30, 2010 providing guidance on management of measurement, quality in business
of Liquefied petroleum gas (LPG).
2. Violations prescribed
at Point b, Clause 1, Article 14 are acts of measurement instrument' s users
who do not meet conditions prescribed for persons with related rights and
obligations to monitor and inspect the implementation of measurement,
measurement methods, measurement instruments, the amount of goods and services.
Example 1: Failure of
ensure the completeness and ready to measuring mugs and vessels, calibrated
measuring cylinders at the petrol and oil retailers as prescribed in Paragraph
1 of Article 8 of the Minister of Science and Technology’s Circular No. 11/2010
/ TT-BKHCN dated July 30, 2010 defining metrology, quality of oil trading
prescribed in the Government’s Decree No. 84/2009 / ND-CP dated October 15,
2009 on petroleum business (hereinafter referred to as Circular No. 11/2010 /
TT-BKHCN).
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Example 3: Failure of
periodic self-inspection, keeping records of periodic self-inspection of
measurement instruments, measurement system in accordance with the relevant
provisions of Clause 2, Article 8 of Circular No. 11/2010 / TT-BKHCN or
specified in Paragraph 4 of Article 4 of the Ministry of Science and
Technology’s Circular No. 22/2013 / TT-BKHCN dated September 26, 2013 defining
the management of measurement in gold trading and quality control of Gold
jewelry in the market.
3. Violations specified
in Paragraph 2 of Article 14 are acts of organizations and individuals using
measurement instruments to carry out measurements and having one of the following
violations:
a) Making measurements
(weight (weighing) or volumetric measurement (measuring)) with the lack amount
exceeding the allowed lack amount under the provisions of measurement for
measurement of group 2 issued by the Minister of Science and Technology ;
b) Using the measurement
instruments to make measurements of group 2 of which measurement instruments
have not been verified; verification certificate has expired; measurement
instruments which do not meet the technical measurement requirements shall be
fined under Article 10 of Decree 80/2013 / ND-CP.
Article
12. Violations of the amount of pre-packed goods in manufacturing, importation,
trading prescribed in Articles 15 and 16 of Decree 80/2013 / ND-CP
1. Violations specified
in point a, clause 1 of Article 15 and point a, clause 1 of Article 16 are acts
of organizations and individuals manufacturing, importing, trading pre-packed
goods without recording the weight on the packages or labels or recording the
weight incorrect with the technical requirements of measurement for weight of
pre-packed goods; without recording, engraving or recording, engraving
incorrectly with regulations of legal units of measurement specified in Decree
86/2012 / ND-CP.
2. Weight of inconsistent
pre-packed goods means goods have real weight smaller than the allowed minimum
weight on the package or the mean value of the real weight of batch of
pre-packed goods smaller than the nominal weight.
3. Violations of the
weights of pre-packed goods which is inconsistent or have variance exceeding
the allowed limit mean the batch of pre-packed goods is not qualified due to
exceeding the allowed lack limit or the mean value of the real weight of the
batch of pre-packed goods is smaller than the nominal weight and has inconsistent
pre-packed goods’ units exceeding the specified levels.
Section
2. ADMINISTRATIVE VIOLATIONS OF TECHNICAL REGULATIONS AND STANDARDS AND PRODUCT
QUALITY OF PRODUCTS AND GOODS
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1. Violation stipulated
in Paragraph 1, Article 17 are acts of organizations and individuals producing
or importing the products, goods without declaring the application standards
and notifying the application standards, number signs of standard or basic
characteristics of products and goods on the label or package of products,
goods or in transaction and introduction documents of goods or proper documents
supplied with the product, goods .
2. For products, goods
undeclared the application standards discovered during the inspection, the
inspection team shall request the violating organizations and individuals to
withdraw such products, goods to declare the application standards before they
are circulated in the market.
Article
14. Violations of conformance prescribed in Article 18 of Decree 80/2013 /
ND-CP.
1. Declaration of
conformance is optional, however, organizations and individuals who have
announced the conformance must comply with the provisions of the Minister of
Science and Technology’s Circular No. 28/2012 / TT-BKHCN dated December 12,
2012 defining conformance announcement, conformity announcement,
assessment methods of conformity with the technical regulations and standards
(hereinafter referred to as Circular 28/2012 / TT-BKHCN)
2. Violations prescribed
at Point a, Clause 4, Article 18 are acts of organizations and individuals who
have declared conformance but do not maintain the quality control, testing and
periodical monitoring as specified in manufacturing and business facilities.
Article
15. Violation of conformity stipulated in Article 19 of Decree 80/2013 / ND-CP
1. Violations specified
in Paragraph 1 of Article 19 are acts of organizations and individuals selling
goods under the declaration of conformity committing violations of declaration
of conformity, conformity marks as prescribed in Circular 28/2012 / TT-BKHCN.
2. A note in applying
Point d, Clause 4, Article 19 : Failing to attach the conformity marks as
prescribed when products or goods are launched in the market may only applied
to products, goods under declaration of conformity in which prescribed
technical regulations must be attached with conformity marks
Article
16. Violations of quality of products and goods circulated in the market
specified in Article 20 of Decree 80/2013 / ND-CP.
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a) If organizations and
individuals sell goods of which quality is inconsistent with declared standards
or goods that commits violations of declaration of conformance and conformance
marks , persons who are competent to impose penalties shall apply paragraph 1
of Article 18 to penalties;
b) If organizations and
individuals sell goods that commit violations of declaration of conformity and
conformity marks, persons who are competent to impose penalties shall apply
paragraph 1 of Article 19 to penalties;
2. Violations specified
in paragraph 4 of Article 20 are acts of organizations and individuals selling
goods which have not been declared the application standard as prescribed by
manufacturers or importers
Article
17. Forgery related to technical regulations and standards and quality of
products and goods specified in Article 24 of Decree 80/2013 / ND-CP
Violations specified in
Paragraph 1 of Article 24 are acts of organizations and individuals
manufacturing or importing products, goods and having one of the following
violations:
1. Information on the
labels is inconsistent with the actual quality of products and goods.
2. Untruthful, dishonest
information about the quality of products and goods is provided to consumers or
competent agencies.
3. Products, goods are
not declared conformance, conformity or certified conformance, conformity but
on the transaction documents, signboards of organizations, individuals or
dealers selling products, goods of such organizations and individuals there is
information deceiving or causing confusion for consumers to understand that the
products, goods have been declared conformance, conformity or certified
conformance, conformity .
4. Untruthful, dishonest
information about the quality of products and goods is on means of mass media.
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Article
18. Violations of labeling in trading of products and goods stipulated in
Article 25 of Decree 80/2013 / ND-CP
1. Violations of the
labeling in trading products, goods are acts of organizations and individuals
producing, importing, transporting, storing and selling products or goods
without labeling in accordance with the provisions of the Government's Decree
No. 89/2006 / ND-CP dated September 30, 2006 on the product label (hereinafter
referred to as Decree No. 89/2006 / ND-CP).
2. Some points are necessary
to note when Article 25 of Decree 80/2013 / ND-CP is applied to penalty
a) Organizations or
individuals manufacture (including processing, assembling, packaging) products,
goods in Vietnam for consumption in the domestic market but do not label as prescribed
or do not have labels or have obscured, torn, wholly or partly faded labels or
labels erased, emended their original labels or additional labels to mislead
customers about information of the products;
b) Organizations and
individuals manufacture products or goods in Vietnam for export of which labels
recorded under the export contract or recorded under the provisions of
importing countries but have business in the market in Vietnam without
recording labels under the provisions of Decree No. 89/2006 / ND-CP on
products, goods
Article
19. Violations of mandatory contents on the goods labels or mandatory contents
to be shown on labels based on the nature of goods specified in Article 26 of
Decree 80/2013 / ND-CP
1. Violations stipulated
in Paragraph 1, Article 26 are acts of organizations and individuals producing,
importing, transporting, storing, selling goods of which labels are not
recorded one of the mandatory contents on labels and mandatory contents to be
shown on labels based on the nature of goods under the provisions of
Article 11, Article 12 of Decree No. 89/2006 / ND-CP.
If goods being pre-packed
goods in group 2 commit violations of weight of pre-packed goods on the label,
Articles 15 and 16 of Decree 80/2013 / ND-CP shall be applied to penalties.
2. Violations prescribed
at Point a, Clause 5, Article 26 are acts of organizations and individuals
producing, importing, transporting, storing and selling goods with counterfeit
labels of contents in Article 11, Article 12 of Decree No. 89/2006 / ND-CP, as
follows:
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b) If detecting
counterfeit labels of contents specified in Article 12 of Decree 89/2006 /
ND-CP, competent persons in penalty shall apply the provisions in Point a,
Clause 5, Article 26 of Decree 80/2013 / ND-CP to penalties;
3. Defrauding the shelf
life of goods on the goods labels specified at Point b, Clause 5, Article 26
shall be applied doubled penalties depending on the value of violated goods:
a) For goods produced
domestically, penalties specified in Paragraphs 1 and 2 of Article 26 shall be
applied ;
b) For imported goods,
penalties specified in Paragraphs 4 of Article 26 shall be applied ;
c) For erasure,
emendation of expiry of goods, penalties specified in paragraph 3 of Article 26
shall be applied.
Article
20. Violation of use of certificate, issuance of certificate of right to
enjoyment code and barcode prescribed in Article 28 of Decree 80/2013 / ND-CP.
1. Violations specified
in point a, clause 1 of Article 28 are acts of organizations and individuals
producing, importing, transporting, storing and selling goods without
certificate of right to use code and barcode but forging or giving information
to mislead consumers that such organizations and individuals have a certificate
of right to use code and barcode granted by the Directorate for Standards,
Metrology, and Quality.
2. Violations specified
in point b, clause 1 of Article 28 are acts of organizations and individuals
producing, importing, transporting, storing and selling goods and using
certificate of right to use code and barcode not granted by the Directorate for
Standards, Metrology, and Quality.
Section
4. PENALTY JURISDICTION AND APPLICATION OF FORMS TO HANDLING OF VIOLATIONS .
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1. Inspectors who are
assigned to perform tasks of specialized inspection of standards, metrology and
quality specified in Paragraph 1 of Article 29, shall include: inspectors
working at the Inspectorate of the Ministry of Science and Technology the
Inspectorate of the Department of Science and Technology; officers assigned to
perform the duties of specialized inspection of the Directorate for Standards
and Quality.
2. Head of specialized
inspection teams of Service of Science and Technology and Head of the
specialized inspection team of Directorate for Standards, Metrology and Quality
and Head of specialized inspection teams of Department of science and
technology shall use marks of the inspection agency to inspect when issuing
documents to apply inspection measures
3. Procedures for
penalties for administrative violations shall be as follows:
a) Jurisdiction to record
administrative violation in the field of standard, metrology and quality
of products, goods shall comply with the provisions of Article 32.
b) If the chief inspector
specialized in standards, metrology and quality of products and goods;
officials and civil servants on duty detect violations in the field of
standard, metrology, quality, they shall be entitled to make a written record
of administrative violations. The agency issuing the inspection decision or the
management agency of officials and civil making records of administrative
violations must promptly complete the dossier transferred to the competent
persons in administrative violations penalties as prescribed by law.
The transfer dossier of
administrative violations shall include: Official Dispatch of the agency
transferring administrative violations; inspection decision or document of
assigning officials and civil servants to perform their duties; inspection
records; administrative violation records (if any); evidence of administrative
violations, and other operation documents.
Article
22. Application of forms to handling of violations.
2. Other forms in
penalties for administrative violations shall be applied under the provisions
in the Government's Decree No. 81/2013 / ND-CP dated July 19, 2013 providing
instructions on a number of articles and implementation of Law on handling
administrative violations.
Chapter
III
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Article
23. Effect
This Circular takes
effect from August 15, 2014 and replaces the Minister of Science and Technology’s
Circular No. 24/2009 / TT-BKHCN dated December 31, providing guidance on a
number of articles of the Government’s Decree No. 54/2009 / ND-CP of June 5,
2009 on penalties for administrative violations in the field of standard,
metrology and quality of products and goods.
Article
24. Responsibility for implementation
1. the President of the
People’s Committee at all levels, Chief Inspector of the Ministry of Science
and Technology, General Director of the Directorate for Standards, Metrology,
and Quality , head of specialized inspector teams on standards, metrology, and
quality , chief inspector of the Department of Science and Technology,
inspectors and other titles competent to impose sanctions specified in Decree
80/2013 / ND-CP shall be responsible for the implementation of this Circular.
2. Any problems arising
in the course of implementation should be report in writing to the Ministry of
Science and Technology for study and guidance. /.
MINISTER
Nguyen Quan
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