Decree No. 15/2010/NĐ-CP on administrative penalties for violations in fertilizer production and business activities.

DECREE

Provisions on administrative penalties for violations in fertilizer production and business activitiesactivities related to the production and business of fertilizers

______________________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Ordinance on Handling Administrative Violations 2002 and the Ordinance amending and supplementing certain articles of the Ordinance on Handling Administrative Violations 2008;

Considering the proposal of the Minister of Industry and Trade and the Minister of Agriculture and Rural Development,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of application

1. This Decree stipulates provisions on administrative penalties for violations in fertilizer production and business activities, including:

a) Acts violating regulations on conditions for fertilizer production and processing;

b) Acts violating regulations on fertilizer production and processing that do not meet quality standards;

c) Acts violating regulations on counterfeit fertilizer production and processing;

d) Acts violating regulations on conditions for fertilizer business;

đ) Acts violating regulations on fertilizer business that do not meet quality standards;

e) Acts violating regulations on counterfeit fertilizer business;

g) Acts violating regulations on fertilizer import;

h) Acts violating regulations on standard declaration application, conformity certification, and conformity declaration of fertilizers;

i) Acts violating regulations on sample collection and analysis of fertilizers;

k) Acts violating regulations on registration files for new fertilizer trials;

l) Acts violating regulations on new fertilizer trials;

m) Acts violating regulations on fertilizer naming;

n) Acts violating regulations on fertilizer name change;

o) Acts violating regulations on recognition and designation of fertilizer sample collectors and fertilizer testing laboratories.

2. Administrative offenses related to counterfeit fertilizer production and processing, as prescribed in this Decree, with a value equivalent to genuine products of 30,000,000 VND or more and showing signs of criminal activity must be transferred to competent criminal investigation authorities for criminal responsibility pursuit.

3. Administrative offenses in fertilizer production and business activities not directly specified in this Decree shall be governed by other Government Decrees on administrative penalties in relevant state management areas.

4. Traditional organic fertilizers are not within the scope of regulation of this Decree.

Article 2. Applicability

1. Vietnamese individuals and organizations committing administrative offenses as prescribed in this Decree.

2. Foreign individuals and organizations committing administrative offenses as prescribed in this Decree on Vietnamese territory, except where international treaties to which Vietnam is a party provide otherwise.

3. Individuals under the age of majority committing administrative offenses as prescribed in this Decree shall be subject to penalties according to the Administrative Violation Handling Ordinance 2002.

Article 3. Definitions

In this Decree, the following terms are understood as follows:

1. Fertilizer production is the process of manufacturing and producing fertilizers.

2. Fertilizer business involves implementing one, several, or all stages of fertilizer production, processing, import, transportation, sale, and provision of fertilizer-related services in the market for profit-making purposes.

3. Fertilizer processing is when a Vietnamese enterprise with fertilizer production functions accepts fertilizer production contracts with domestic and foreign individuals and organizations. Accordingly, the processing party uses part or all of the raw materials and materials provided by the contracting party to perform one or more stages in the fertilizer production process according to the requirements of the contracting party to earn remuneration.

4. The fertilizer list refers to the list of fertilizers permitted for production, business, and use in Vietnam, as defined in Clause 3, Article 1 of the Government's Decree No. 191/2007/ND-CP dated December 31, 2007, amending and supplementing some articles of the Government's Decree No. 113/2003/ND-CP dated October 7, 2003, on fertilizer production and business management.

5. Non-compliant fertilizers are those that fail to meet mandatory inspection criteria; do not reach one of the required quantitative error limits, mandatory quantitative limits, and units of measurement for elements in fertilizers as prescribed.

6. Counterfeit fertilizers are those exhibiting one of the following characteristics:

a) Illegally produced fertilizers resembling types of fertilizers permitted for production, business, and import, imitating or counterfeiting labels of protected types;

b) Not having the intended use consistent with their origin, natural properties, names, and functions as per declared standards or levels specified in the fertilizer list;

c) Total nutrient content only reaching from 0% to 50% of the declared standard level or level specified in the fertilizer list.

Article 4. Provisions on administrative penalties and measures to remedy consequences

Principles of penalty imposition; mitigating or aggravating circumstances; statute of limitations and penalty deadlines; period considered as not yet penalized; calculation of deadlines and statutes of limitation; application of forms of administrative penalties and remedial measures; responsibilities of authorized persons in imposing administrative penalties are implemented according to the Administrative Violation Handling Ordinance 2002 and the Ordinance Amending and Supplementing Certain Articles of the Administrative Violation Handling Ordinance 2008.

Chapter II

For the act of trading counterfeit goods without utility or function as stipulated in Clause 1, Article 4 of this Decree, the fine shall be as follows:

Article 5. Acts violating regulations on conditions for fertilizer production and processing

1. A fine of VND 10,000,000 to VND 20,000,000 for acts of producing and processing fertilizers without a team of staff and workers with expertise and skills meeting the technological production and quality management requirements.

2. A fine of VND 20,000,000 to VND 30,000,000 for acts of producing and processing types of fertilizers (including registered trial fertilizers or those currently undergoing trials) not listed in the permitted fertilizer list for production, business, and use in Vietnam without a written approval for trial from the competent authority.

3. A fine of VND 30,000,000 to VND 40,000,000 for acts of producing and processing fertilizers without a quality analysis and testing department or without hiring such a department to ensure that processed fertilizers meet quality standards.

4. A fine of VND 40,000,000 to VND 50,000,000 for individuals and organizations producing and processing fertilizers without appropriate machinery and equipment to produce fertilizers meeting quality standards.

A fine of VND 60,000,000 to VND 70,000,000 shall be imposed for the violation of fertilizer production or processing without a Business Registration Certificate for fertilizer products or an Investment Certificate for fertilizer production and business issued by competent state agencies.

6. Additional forms of punishment

Seize the fertilizers involved in the violation as stipulated in Clause 2 of this Article.

7. Measures to remedy consequences

Order individuals and organizations committing violations as stipulated in Clauses 1, 3, 4, and 5 of this Article to meet the necessary conditions for fertilizer production and processing.

Article 6. Violation of regulations on fertilizer production and processing that do not meet quality standards

A fine of VND 50,000,000 to VND 60,000,000 shall be imposed for the violation of fertilizer production or processing that does not meet the permissible quantitative error level compared to the prescribed level.

A fine of VND 70,000,000 to VND 80,000,000 shall be imposed for the violation of fertilizer production or processing that does not meet the mandatory quantitative index level.

3. Measures to remedy consequences

Order individuals and organizations committing the violation to re-produce the entire quantity of non-compliant fertilizers as stipulated in Clauses 1 and 2 of this Article.

Article 7. Violation of regulations on producing and processing counterfeit fertilizers

A fine of VND 40,000,000 to VND 50,000,000 shall be imposed for the violation of producing and processing counterfeit fertilizers with a value equivalent to genuine products up to VND 30,000,000.

A fine of VND 60,000,000 to VND 70,000,000 shall be imposed for the violation of producing and processing counterfeit fertilizers with a value equivalent to genuine products up to VND 40,000,000.

A fine of VND 80,000,000 to VND 100,000,000 shall be imposed for the violation of producing and processing counterfeit fertilizers with a value equivalent to genuine products from VND 50,000,000 to less than VND 100,000,000.

A fine of VND 120,000,000 to VND 150,000,000 shall be imposed for the violation of producing and processing counterfeit fertilizers with a value equivalent to genuine products over VND 100,000,000.

5. Additional forms of punishment

Confiscate the objects and means used in the violation and the entire quantity of counterfeit fertilizers as stipulated in Clauses 1, 2, and 3 of this Article.

Remedial measures

Order the destruction of counterfeit fertilizers that have no utility, function, are unsafe for use, and cause harm to production, human health, crops, ecological environment, and the environment as stipulated in Clauses 1, 2, and 3 of this Article. The cost of destroying counterfeit fertilizers shall be borne by the individual or organization committing the violation. In cases where the compulsory destruction measure cannot be applied or the violator does not carry out the destruction, the items shall be confiscated for destruction according to regulations.

Article 8. Violation of business conditions for fertilizers

A fine of VND 2,000,000 to VND 5,000,000 shall be imposed for the violation of selling fertilizers not listed in the Fertilizer Catalogue.

A fine of VND 10,000,000 to VND 15,000,000 shall be imposed for the violation of selling fertilizers without storage facilities.

3. Additional forms of punishment

Confiscate fertilizers not listed in the Fertilizer Catalogue for the violation as stipulated in Clause 1 of this Article.

4. Measures to remedy consequences

Order the establishment of storage facilities for the violation as stipulated in Clause 2 of this Article.

Article 9. Violation of regulations on selling fertilizers that do not meet quality standards

A fine of VND 20,000,000 to VND 30,000,000 shall be imposed for the violation of selling fertilizers past their expiration date.

A fine of VND 30,000,000 to VND 40,000,000 shall be imposed for the violation of selling fertilizers that have been suspended from production or consumption.

A fine of VND 40,000,000 to VND 50,000,000 shall be imposed for one of the following violations of selling fertilizers:

a) Not meeting the announced standard level or the level specified in the Fertilizer Catalogue for fertilizers sold with a value up to VND 80,000,000;

b) Nutrient content only reaching from the permissible error level to 80% of the announced standard level or the level specified in the Fertilizer Catalogue allowed for use regarding one nutrient or the total nutrients.

A fine of VND 50,000,000 to VND 60,000,000 shall be imposed for one of the following violations of selling fertilizers:

a) Not meeting the announced standard level or the level specified in the Fertilizer Catalogue for the quantity of fertilizers with a value up to VND 90,000,000;

b) Nutrient content only reaching from 61% to 80% of the announced standard level or the level specified in the Fertilizer Catalogue for one nutrient or the total nutrients.

A fine of VND 60,000,000 to VND 70,000,000 shall be imposed for one of the following violations of selling fertilizers:

a) Not meeting the announced standard level or the level specified in the Fertilizer Catalogue for the quantity of fertilizers with a value up to VND 100,000,000;

b) Nutrient content only reaching from 51% to 60% of the announced standard level or the level specified in the Fertilizer Catalogue.

6. Additional forms of punishment

Confiscate for recycling the quantity of fertilizers violating the provisions as stipulated in Clause 5 of this Article.

7. Measures to remedy consequences

a) Order recycling of the quantity of fertilizers violating the provisions as stipulated in Clauses 3 and 4 of this Article;

b) Order destruction of the quantity of fertilizers with nutrient content only reaching below 30% of the announced standard level or the level specified in the Fertilizer Catalogue for the violation as stipulated in Point b of Clause 3, Point b of Clause 4, and Point b of Clause 5 of this Article.

Article 10. Violation of regulations on selling counterfeit fertilizers

A fine of VND 1,000,000 to VND 2,000,000 shall be imposed for the violation of selling counterfeit fertilizers with a value equivalent to genuine products up to VND 1,000,000.

A fine of VND 3,000,000 to VND 6,000,000 shall be imposed for the violation of selling counterfeit fertilizers with a value equivalent to genuine products from VND 1,000,000 to VND 3,000,000.

A fine of VND 6,000,000 to VND 10,000,000 shall be imposed for the violation of selling counterfeit fertilizers with a value equivalent to genuine products from VND 3,000,000 to VND 5,000,000.

A fine of VND 10,000,000 to VND 20,000,000 shall be imposed for the violation of selling counterfeit fertilizers with a value equivalent to genuine products from over VND 5,000,000 to VND 10,000,000.

A fine of VND 30,000,000 to VND 40,000,000 shall be imposed for the violation of selling counterfeit fertilizers with a value equivalent to genuine products from over VND 10,000,000 to VND 20,000,000.

A fine of VND 50,000,000 to VND 60,000,000 shall be imposed for the violation of selling counterfeit fertilizers with a value equivalent to genuine products from over VND 20,000,000 to under VND 30,000,000.

7. A fine of VND 70,000,000 to VND 80,000,000 shall be imposed on the act of trading counterfeit fertilizer with a value equivalent to genuine goods from over VND 30,000,000 to under VND 40,000,000.

8. A fine of VND 80,000,000 to VND 90,000,000 shall be imposed on the act of trading counterfeit fertilizer with a value equivalent to genuine goods from over VND 40,000,000 to under VND 50,000,000.

9. A fine of VND 90,000,000 to VND 100,000,000 shall be imposed on the act of violating the production or processing of counterfeit fertilizer with a value equivalent to genuine goods from over VND 50,000,000.

10. Additional forms of punishment

Confiscation of objects and means used to produce fake goods for cases of violation stipulated in this Article.

11. Measures to remedy consequences

Compel the destruction of all quantities of counterfeit fertilizer that have no utility, no efficacy, do not ensure safe use, and cause harm to production, human health, livestock, crops, ecological environment, and the environment for violations prescribed in this Article. The cost of destroying counterfeit fertilizer shall be borne by the individual or organization committing the violation. In cases where the compulsory destruction measure cannot be applied or the individual or organization committing the violation does not carry out the destruction, confiscate for destruction according to regulations.

Article 11. Violations concerning the import of fertilizer

1. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed on the act of importing new fertilizer for testing without written consent from the competent state agency.

2. A fine of VND 10,000,000 to VND 15,000,000 shall be imposed on the act of importing raw materials for fertilizer or other raw materials not listed in the Fertilizer Catalogue for the production of the following types of fertilizers:

a) Listed in the Fertilizer Catalogue;

b) Only for export under a contract.

3. A fine of VND 15,000,000 to VND 20,000,000 shall be imposed on the act of importing specialized fertilizer for sports without written consent from the competent state agency.

4. A fine of VND 20,000,000 to VND 25,000,000 shall be imposed on the act of importing specialized fertilizer for use within enterprises without written consent from the competent state agency.

5. A fine of VND 25,000,000 to VND 30,000,000 shall be imposed on the act of importing fertilizer for sample purposes, gifts, scientific research, and testing without written consent from the competent state agency.

6. A fine of VND 30,000,000 to VND 35,000,000 shall be imposed on the act of importing types of fertilizer that have been tested, proposed by the Scientific and Technological Council to recognize as new technical measures (new fertilizer), recognized as new fertilizer during the period awaiting inclusion in the Fertilizer Catalogue without written consent from the competent state agency.

7. A fine of VND 40,000,000 to VND 50,000,000 shall be imposed on the act of importing types of fertilizer that do not meet the announced standards applicable, technical regulations corresponding to Vietnam.

8. For acts of violating the regulations on smuggling fertilizer, the provisions of Decree No. 06/2008/ND-CP dated January 16, 2008, of the Government on administrative penalties in commercial activities; Decree No. 107/2008/ND-CP dated September 22, 2008, of the Government on administrative penalties for speculative behavior, hoarding, excessive price increases, disseminating false information, smuggling, and fraudulent trade practices shall be applied to impose penalties.

9. Remedial measures

a) Compel re-export or destruction of imported fertilizers for violations stipulated in Clause 7 of this Article containing heavy metal content, harmful microorganisms, and other toxic substances exceeding specified limits.

b) Compel recycling of imported fertilizers for violations stipulated in Clause 7 of this Article to ensure compliance with announced standards applicable or only use as raw material for producing other types of fertilizers for those fertilizers not covered by point a, Clause 9 of this Article.

Article 12. Violations concerning the announcement of applicable standards, certification of conformity, and declaration of conformity for fertilizers

Violations of the regulations on the announcement of applicable standards, certification of conformity, and declaration of conformity for fertilizers shall be subject to penalties in accordance with the provisions of Decree No. 54/2009/ND-CP dated June 5, 2009, of the Government on administrative penalties in the field of standardization, measurement, and product quality to impose penalties.

Article 13. Violations of the regulations on sampling and analyzing fertilizers

1. A fine of VND 1,000,000 to VND 5,000,000 shall be imposed for any of the following violations:

a) Failure to comply with the regulations on methods, sampling regulations, quality inspection, and quality certification issued by the competent state agency or failure to comply with the testing methods, standards, and technical regulations issued by the competent state agency;

b) Altering or misreporting analysis results of fertilizer quality;

c) Failure to maintain confidentiality of information, data, sampling, inspection, testing, and quality certification results.

2. Measures to remedy consequences

a) Compel the resampling, retesting, and recertification of fertilizer quality for violations stipulated in point a and b, Clause 1 of this Article and shall not charge fees for activities due to violations stipulated in Clause 1 of this Article;

b) Temporarily suspend or revoke the validity of decisions certifying or designating samplers, inspectors, testing laboratories, or organizations certifying fertilizer quality for violations stipulated in point a and b, Clause 1 of this Article.

Article 14. Violations concerning the registration dossier for new fertilizer trials

1. A fine of VND 1,000,000 to VND 5,000,000 shall be imposed on individuals or organizations committing one of the following violations:

a) Altering, erasing, falsifying, or fabricating documents required in the trial registration dossier;

b) Failing to register and report to the competent state agency regarding changes to the trial contents already defined.

2. Measures to remedy consequences:

Compel correction or reregistration of new fertilizer trials for violations stipulated in Clause 1 of this Article.

Article 15. Violations concerning new fertilizer trials

1. A fine of VND 1,000,000 to VND 5,000,000 shall be imposed on one of the following violations:

a) Conducting fertilizer trials without designation or recognition by the competent state agency.

b) Conducting trials not in accordance with the registered trial content or conducting trials not in compliance with current regulations on new fertilizer trials;

c) Designating an entity to conduct fertilizer trials when that entity has not met the conditions for designation as prescribed.

2. A fine of from five million dong to ten million dong shall be imposed for the act of publishing false trial results.

3. Measures to remedy consequences

Order a re-trial or cancel the results of new fertilizer trials for violations stipulated in Article 1, Clause 2 of this Decree.

Article 16. Violation of fertilizer naming regulations

1. A fine of from one million dong to five million dong shall be imposed for violating the principles of fertilizer naming as prescribed.

2. Measures to remedy consequences

Order the correction or cancellation of the fertilizer name according to the naming regulations for violations stipulated in Clause 1 of this Article.

Article 17. Violation of regulations on changing fertilizer names

1. A fine of from one million dong to five million dong shall be imposed for violating the conditions and procedures for changing fertilizer names.

2. Measures to remedy consequences

Order the correction or cancellation of the fertilizer name for violations stipulated in Clause 1 of this Article.

Article 18. Violation of regulations on recognizing and designating fertilizer sample takers and fertilizer testing laboratories

1. A fine of from two million dong to five million dong shall be imposed for any of the following violations:

a) Continuing to operate production and business activities without resubmitting recognition and designation registration files to the competent state agency after the validity period of the recognition and designation decision has expired;

b) Delaying the issuance of a new recognition and designation decision beyond the date of receiving a valid registration file without justifiable reasons;

c) Failing to report to the competent state agency any changes related to the scope of recognition and designation.

2. Measures to remedy consequences.

Order the completion of the file or revoke the recognition and designation decision for violations stipulated in Clause 1 of this Article.

Chapter III

AUTHORITY AND PROCEDURES FOR IMPOSING FINES

Article 19. Authority to impose fines

1. Authority of People's Committees at all levels to impose administrative penalties

a) The Chairman of the People's Committee of the district has the authority to impose administrative penalties for violations of this Decree in the locality in accordance with Article 29 of the Administrative Violations Handling Ordinance 2002 and the Ordinance Amending and Supplementing Certain Provisions of the Administrative Violations Handling Ordinance 2008;

b) The Chairman of the People's Committee of the province has the authority to impose administrative penalties for violations of this Decree in the locality in accordance with Article 30 of the Administrative Violations Handling Ordinance 2002.

2. Authority of specialized inspectors to impose fines

Specialized inspectors have the authority to impose administrative penalties for violations of this Decree within their sector's management in accordance with Article 38 of the Administrative Violations Handling Ordinance 2002 and the Ordinance Amending and Supplementing Certain Provisions of the Administrative Violations Handling Ordinance 2008.

3. Authority of other forces to impose fines

Public Security agencies, Customs, Market Management agencies, and other agencies within their functions, tasks, and powers, if they discover administrative violations in fertilizer production and business activities, shall have the authority to impose administrative penalties in accordance with the Administrative Violations Handling Ordinance and the provisions of this Decree.

Article 20. Procedures for imposing fines, handling contraband items, means of transportation involved in administrative violations, and enforcing decisions on fines

Procedures for imposing fines, handling contraband items, means of transportation involved in administrative violations, and enforcing decisions on administrative penalties shall be carried out in accordance with the Administrative Violations Handling Ordinance 2002 and the Ordinance Amending and Supplementing Certain Provisions of the Administrative Violations Handling Ordinance 2008.

Chapter IV

IMPLEMENTING PROVISIONS

Article 21. Effectiveness

This Decree takes effect from April 14, 2010.

Article 22. Responsibility for Implementation

1. The Ministry of Industry and Trade shall take the lead and coordinate with the Ministry of Agriculture and Rural Development to monitor the implementation of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairmen of provincial-level People's Committees, and Chairmen of municipal People's Committees directly under the central government are responsible for implementing this Decree./.