Circular No. 24/2009/TT-BKHCN guiding certain provisions of Government Decree No. 54/2009/NĐ-CP dated June 5, 2009 on administrative penalties for violations in the field of standards, measurement, and product quality.

CIRCULAR

Guidelines for some provisions of Decree No. 54/2009/NĐ-CP dated June 5, 2009

of the Government on administrative sanctions for violations in the field of

standards, measurement, and product quality

________________________________

Pursuant to Decree No. 28/2008/NĐ-CP dated March 14, 2008, promulgated by the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology;

Pursuant to Decree No. 54/2009/NĐ-CP dated June 5, 2009 of the Government on administrative sanctions for violations in the field of standards, measurement, and product quality;

Considering the proposal of the Inspector General and the Director of the Legal Department of the Ministry of Science and Technology,

The Minister of Science and Technology issues guidelines for applying administrative sanctions in the field of standards, measurement, and product quality as follows:

I. GENERAL PROVISIONS

1. Scope of Application

These Circulars guide the imposition of administrative sanctions for violations in the field of standards, measurement, and product quality against organizations and individuals who commit any of the administrative offenses prescribed in Chapter II and apply certain provisions of Decree No. 54/2009/NĐ-CP dated June 5, 2009 of the Government on administrative sanctions for violations in the field of standards, measurement, and product quality (hereinafter referred to as Decree 54).

2. Principles of Sanctioning

2.1. Administrative sanctions for violations in the field of standards, measurement, and product quality shall be implemented according to the principles stipulated in Article 3 of the Administrative Violation Handling Ordinance.

The maximum fine for violations prescribed in Decree 54 is 30,000,000 VND (thirty million).

2.2. When discovering organizations or individuals committing administrative violations related to standards, measurement, and product quality, the authorized sanctioning authority as specified in Articles 29, 30, and 31 of Decree 54 must immediately stop the violation and impose sanctions as prescribed.

Upon discovering administrative violations related to standards, measurement, and product quality within their management domain, officials performing public duties must promptly prepare a record of violation. In cases where the violation does not fall under the jurisdiction of the person preparing the record, the record must be immediately transferred to the authorized sanctioning authority as specified in Articles 29, 30, and 31 of Decree 54 for handling according to the law.

2.3. If the violation requires a fine exceeding 200,000 VND, a record of violation must be prepared according to the prescribed procedures. If the fine is up to 200,000 VND, the authorized sanctioning authority may handle the violation through simplified procedures, except when the violation is discovered using technical equipment. The preparation of records of violation and the fine procedures must comply with the provisions of Articles 54, 55, and 57 of the Ordinance Amending and Supplementing Certain Provisions of the Administrative Violation Handling Ordinance 2008.

II. GUIDELINES FOR DETERMINING VIOLATIONS

OF ADMINISTRATIVE VIOLATIONS IN MEASUREMENT

1. Violations concerning measurement regulations in the production of measuring instruments listed in the Catalogue of Measuring Instruments Subject to Verification (Article 4 of Decree 54)

1.1. The act of not marking or engraving the unit of measurement according to the officially recognized unit of measurement when producing measuring instruments refers to organizations or individuals producing measuring instruments that mark or engrave units of measurement not in accordance with the officially recognized units of measurement as stipulated in Decree No. 134/2007/NĐ-CP dated August 15, 2007 of the Government on officially recognized units of measurement. For example:

1.1.1. Mass quantity, name of unit is kilogram, symbol is: kg. If mass quantity is marked as KG or engraved as "pound - British pound" is incorrect.

1.1.2. Force quantity, name of unit is Newton, symbol is: N. If marked as KG force is incorrect.

1.1.3. Pressure quantity, name of unit is Pascal, symbol is: Pa. If marked as KG/unit area is incorrect.

1.2. The act of producing measuring instruments not in accordance with the approved sample refers to organizations or individuals producing measuring instruments that have one or more details changed compared to the file of the approved sample kept at the National Standard Measurement Quality Agency or at the organization or individual producing the measuring instrument.

1.3. The act of producing measuring instruments without an approved sample refers to organizations or individuals producing measuring instruments but these instruments do not have an approval decision from the National Standard Measurement Quality Agency.

1.4. Revoking the right to use the approval decision for measuring instrument samples for up to 90 days for violations stipulated in Clause 4 of Article 4 means that the authorized authority as specified in Articles 29, 30, and 31 of Decree 54 issues a decision to revoke the right to use the approval decision for up to 90 days to allow the violating organization or individual to repair the measuring instrument in accordance with the approved sample. Depending on the nature and severity of the violation, the authorized sanctioning authority decides the number of days required for revocation.

2. Violations concerning measurement regulations in importing measuring instruments listed in the Catalogue of Measuring Instruments Subject to Verification (Article 5 of Decree 54)

2.1. The act of importing measuring instruments without an approved sample from the competent authority refers to organizations or individuals importing measuring instruments listed in the Catalogue of Measuring Instruments Subject to Verification, when imported into Vietnam (stored in customs warehouses or circulating in the market or installed for use) but do not have an approval decision for the measuring instrument sample from the National Standard Measurement Quality Agency.

2.2. The act of importing measuring instruments not in accordance with the approved sample refers to organizations or individuals importing measuring instruments that do not match the file of the approved sample at the National Standard Measurement Quality Agency or at the organization or individual importing the measuring instrument.

3. The act of violating the provisions on measurement in the business of selling measuring instruments listed in the Catalogue of Measuring Instruments Subject to Verification (Article 6 of Decree 54) is the act of organizations or individuals trading measuring instruments listed in the Catalogue of Measuring Instruments Subject to Verification without having or failing to present to competent authorities the verification certificate or verification seal or verification mark, documents on the origin or place of manufacture of the measuring instrument, or the measuring instrument does not bear a product label as prescribed by law or incorrectly marks or engraves units of measurement not according to officially prescribed units of measurement under Government Decree No. 134/2007/NĐ-CP dated August 15, 2007.

4. The act of violating the provisions on measurement in retail trade activities (Article 7 of Decree 54).

4.1. Violating the provisions on measurement in retail trade activities is the act of organizations or individuals committing any of the following violations:

4.1.1. Conducting mass or volume measurements with a shortage exceeding the permissible limit as stipulated for commercial retail measurements by the Ministry of Science and Technology.

4.1.2. Using measuring instruments to conduct retail trade measurements that have not been verified; the verification certificate has expired; the measuring instrument does not meet measurement requirements.

4.2. The conclusion regarding the error of measuring instruments or measurement errors only ensures legal validity when carried out by the following individuals or organizations: metrology verifiers certified and issued cards by the General Department of Standardization, Measurement and Quality Control, specialized inspectors from the Science and Technology sector, or state management agencies on measurement.

5. The act of violating the provisions on measurement in the use of measuring instruments listed in the Catalogue of Measuring Instruments Subject to Verification (Article 8 of Decree 54).

5.1. If organizations or individuals using measuring instruments listed in the Catalogue of Measuring Instruments Subject to Verification fail to undergo verification or cannot present the verification mark or seal or certificate or present a verification mark or seal or certificate that has expired upon request from competent authorities, they shall be subject to penalties under Clause 1 (for measuring instruments valued at less than 500,000 dong) or Clause 2 (for measuring instruments valued at 500,000 dong or more) of Article 8 of Decree 54.

Determining the value of the measuring instrument used to commit administrative violations shall be carried out in accordance with the provisions of Article 34 of Government Decree No. 128/2008/NĐ-CP dated December 16, 2008 detailing the implementation of certain articles of the Administrative Violation Handling Ordinance.

Depending on the specific type of measuring instrument, its value is determined based on one of the following priorities: the marked price or the price stated in the purchase contract or sales invoice or import declaration; the market price of the measuring instrument at the time and location of the administrative violation (as announced by local financial authorities or the average quotation from at least three different sources); the production cost if it is unsold inventory of the manufacturer or the market price of similar measuring instruments with the same technical features at the time and location of the administrative violation (as announced by local financial authorities or the average quotation from at least three different sources).

For example, inspecting and supervising the implementation of laws on measurement for organizations or individuals using common measuring instruments such as: measuring cups, measuring jugs, measuring tanks, hanging scales up to 100 kg, dial scales up to 100 kg, general bench scales under 200 kg, or ordinary pressure gauges, thermometers, medical sphygmomanometers, etc.

During inspection, if organizations or individuals using the measuring instruments mentioned above fail to present the verification certificate or the verification certificate has expired or these measuring instruments do not meet measurement requirements. At the time of discovering the administrative violation, the inspection team determines the value of the measuring instruments being used by the organizations or individuals compared to new measuring instruments of the same type and equivalent technical characteristics (according to the aforementioned method of valuation), and finds that the measuring instruments being used are valued at less than 500,000 dong. The authorized person applies the provisions of Clause 1 of Article 8 of Decree 54 to impose penalties.

5.2. A measuring instrument that does not meet measurement requirements is a measuring instrument with one of the following violations:

5.2.1. The measuring instrument in use does not comply with legal requirements.

5.2.2. The measurement range or accuracy level is not suitable for the intended use.

5.2.3. The error of the measuring instrument does not comply with regulations.

5.2.4. The measuring instrument has not been approved for model or does not conform to the approved model.

The act of using a measuring instrument that does not meet measurement requirements but is valued at less than 500,000 dong shall be subject to penalties under Clause 1 of Article 8 of Decree 54.

The act of using a measuring instrument that does not meet measurement requirements but is valued at 500,000 dong or more shall be subject to penalties under Clause 3 of Article 8 of Decree 54.

5.3. If organizations or individuals using measuring instruments listed in the Catalogue of Measuring Instruments Subject to Verification know or are unaware that the measuring instrument is faulty but still use it for quantifying goods or services in transactions or for ensuring safety, health protection, and environmental protection, they shall be subject to penalties under Clause 3 of Article 8 of Decree 54.

5.4. When applying the provisions of Clause 4 of Article 8 of Decree 54, note the following:

5.4.1. The act of fraudulently using a verification certificate or verification mark is manifested by one of the following signs:

5.4.1.1. Using a verification mark or certificate that is not from a verification organization meeting the required conditions.

5.4.1.2. Using a lead seal, verification mark, or certificate that has been erased or altered.

5.4.1.3. Arbitrarily removing the lead seal or verification mark.

5.4.1.4. Acting on one's own initiative to remove and then reattach or reapply seals or inspection labels without immediately reporting to the competent authority.

5.4.2. Acts that alter the technical condition and measurement characteristics of measuring instruments, such as adjusting, repairing, replacing, adding, or removing parts or equipment of the measuring instrument, are manifested by one of the following signs:

5.4.2.1. Measuring instruments in use, bearing valid inspection seals or labels or certificates, but organizations or individuals using them擅自修改或更换、添加或移除部件，而未向有关部门报告。

5.4.2.2. Measuring instruments in use, bearing valid inspection seals or labels or certificates, but organizations or individuals adjust one or more components on their own initiative.

5.4.2.3. Measuring instruments in use with valid calibration certificates, but organizations or individuals have affected one of the components of the measuring instrument, impacting its error, although when checking the error of the measuring instrument, it still falls within the permissible error range.

The authorized authority only handles acts of violation that alter the technical condition and measurement characteristics of measuring instruments causing damage to consumers, safety, the environment, or adversely affecting the national economy and society.

Example: In the case where an organization's or individual's fuel dispenser is operating normally, upon a sudden check of the dispenser's error according to the VNMD 10:2003 procedure, the result shows an error ranging from over 0.5% to 8%. When the power supply to the dispenser was turned off and the error checked again according to the VNMD 10:2003 procedure, the error was found to be within the permissible limit of ±0.5%. This demonstrates that the organization or individual has acted to change the technical condition and measurement characteristics of the dispenser (eliminating the previously detected error) through the manipulation of power supply. Therefore, the authorized authority will base the penalty on point b, Clause 4, Article 8 of Decree 54.

5.5. When applying the provisions of Clause 5 and Clause 6, Article 8 of Decree 54, note the following:

5.5.1. Form of supplementary punishment: Confiscation of evidence and measuring instruments for violations stipulated in Clause 5, Article 8 means:

Confiscation of evidence: The authorized authority decides to confiscate false calibration certificates (seals, labels, certificates) created to conceal acts of unauthorized adjustment, repair, replacement, addition, or removal of components of the measuring instrument that has been affected, or components added or replaced by the organization or individual using the measuring instrument compared to the approved file of the measuring instrument by the competent authority.

Confiscation of measuring instruments: The authorized authority decides to confiscate measuring instruments being used by organizations or individuals to commit violations stipulated in point b, Clause 4, Article 8.

5.5.2. Procedures for handling confiscated measuring instruments in administrative violations shall be carried out in accordance with Article 61 of the Administrative Violations Handling Ordinance and related documents guiding the management and disposal of confiscated items and instruments to be surrendered to the state treasury due to administrative violations.

5.6. Forcing the destruction of seals, labels, or calibration certificates for violations stipulated in point a, Clause 4, Article 8 of Decree 54 shall be organized immediately after the penalty decision takes effect. The destruction of the calibration certificate shall be organized by the violator under the supervision and witnessing of the authority issuing the penalty decision. If the violator does not organize the destruction of the calibration certificate, the authority issuing the penalty decision shall enforce the destruction (with a compulsory enforcement decision and completion of the destruction must be recorded in accordance with regulations). The violator shall bear the costs of organizing the compulsory destruction or repay the advance funds provided by the state for the compulsory destruction.

5.7. Recovering illegal profits specified in point c, Clause 6, Article 8 of Decree 54 is determined as follows:

5.7.1. General principle for determination:

5.7.1.1. Violation period (TGVP):

5.7.1.1.1. Violation time: is the time when the organization or individual begins to carry out the act of violation. If the violator has legal evidence (such as contracts; financial invoices) proving the start time of the violation, the start time of the violation is determined according to such legal evidence. If the violator does not have legal evidence to prove the start time of the violation, the start time of the violation is determined from the most recent inspection date or the most recent error check date of the measuring instrument by the competent authority.

5.7.1.1.2. Determining the violation period: is the duration from the time the organization or individual starts the act of violation until the time the competent authority discovers the violation. The unit of time for calculating the violation period is days. If the violation period is determined in months, one month is converted to thirty days.

Example 1: On August 17, 2009, Gasoline Store A was discovered by the Measurement Inspection Team of the Science and Technology Department of Province X to have installed an additional electronic circuit board in the display section of one gasoline dispenser selling RON 92 gasoline, resulting in an error of 0.85%. The store presented a contract for installation with Repair Facility Z and valid documentation showing the installation date as May 12, 2009. Thus, the violation period is determined as three months (from May 12, 2009 to August 12, 2009) and five days (from August 13, 2009 to August 17, 2009). The violation period converted to units of days is: three months x thirty days + five days = ninety-five days.

Example 2: On August 17, 2009, Store B was discovered by the Measurement Inspection Team of the Science and Technology Department of Province X to have installed an additional electronic microchip module in the display unit of one out of three fuel dispensers selling RON 92 gasoline. Upon inspection, it was determined that this dispenser had an error rate of 0.85%, while the other two dispensers had error rates within the permissible limit of ±0.5%. The store did not provide any legal evidence to prove the start date of the violation. During the inspection at the store, the Inspection Team obtained the following information:

The most recent calibration conducted by the Provincial Standardization, Measurement, and Quality Control Agency and issued on March 9, 2009, with the Calibration Certificate valid until March 9, 2010. Store B presented a record of RON 92 gasoline import and export from January 1, 2009, to July 31, 2009 (seven months), showing that the total volume imported was 900,000 liters and sold was 630,000 liters. From March 9, 2009, to August 17, 2009, the Ministry of Finance and the Ministry of Industry and Trade issued three price increases for gasoline, including specific increases for RON 92 gasoline on April 12, 2009, at 13,700 dong per liter, May 15, 2009, at 14,200 dong per liter, and July 20, 2009, at 14,700 dong per liter.

Based on the results of the measurement error check, the Inspection Team concluded that Store B had committed an administrative violation. This behavior is stipulated in point b, Clause 4, Article 8 of Decree 54.

According to this example, the Inspection Team determined that the period of violation by Store B was five months (from March 9, 2009, to August 9, 2009) and eight days (from August 10, 2009, to August 17, 2009). The period of violation converted into units of time (days) is: 5 months x 30 days + 8 days = 158 days.

5.7.1.2. Measurement error for determining the violation (MEVP): is the difference between the actual measurement error value of the measuring instrument detected and the permissible measurement error according to the specifications of the measuring instrument.

In the above Example 2, the measurement error for determining the violation is calculated as: 0.85% - 0.5% = 0.35%.

5.7.1.3. Quantity of goods sold due to the use of measuring instruments for violations during the period of violation (QGSD): is the quantity of goods sold due to the use of measuring instruments for violations during the period of violation converted into units of time for calculating the violation.

Determining the quantity of goods sold due to the use of measuring instruments for violations during the period of violation is based on one of the following principles:

- Determined by the recorded volume of gasoline sold on the measuring instrument: If the total volume of gasoline sold at the beginning of the violation (the most recent calibration date) and the total volume of gasoline sold at the time of detection of the violation can be identified, and if the display unit is still functioning normally after inspection, then the quantity of goods sold during the period of violation due to the use of measuring instruments for violations is the difference between the total volume of gasoline sold at the time of detection of the violation and the total volume of gasoline sold at the beginning of the violation.

- Determined by the sales records of the business: If the violating entity has detailed accounting records tracking the purchase and sale of goods, then these records will be used to determine the average monthly quantity of goods sold of the type involved in the violation (taking the lower average between the current sales period and the settled amount of the previous year). Then, the average daily quantity of goods sold due to the use of measuring instruments for violations is determined. The quantity of goods sold during the period of violation due to the use of measuring instruments for violations is the product of the average daily quantity of goods sold due to the use of measuring instruments for violations and the number of violation days.

In the above Example 2, Store B presented a record of RON 92 gasoline import and export from January 1, 2009, to July 31, 2009 (seven months), showing that the total volume imported was 900,000 liters and sold was 630,000 liters. The Inspection Team needs to determine the following parameters:

The average quantity of goods sold per month is: 630,000 liters / 7 months = 90,000 liters/month.

(According to the final settlement of 2008, the average monthly quantity of RON 92 gasoline sold by the store was 97,000 liters, which is higher than the current period's figure of 90,000 liters. Therefore, the current period's figure of 90,000 liters is used for calculation).

The average quantity of goods sold per month by one measuring instrument is:

90,000 liters/month / 3 fuel dispensers (selling RON 92) = 30,000 liters/month.

The average quantity of goods sold per day by one measuring instrument is: 30,000 liters/month / 30 days = 1,000 liters/day.

The quantity of goods sold during the period of violation due to the use of measuring instruments for violations is: 1,000 liters/day x 158 days = 158,000 liters.

- Determined by equivalent measuring instruments in the business area: If the above two methods cannot be used, the quantity of goods sold during the period of violation due to the use of measuring instruments for violations is determined using an equivalent method. Specifically, the quantity of goods sold during the period of violation due to the use of measuring instruments for violations is the product of the average daily quantity of goods sold of one non-violating measuring instrument used at a nearby store in the same business area and the number of days the violating measuring instrument was used. The method for calculating the average daily quantity of goods sold of one non-violating measuring instrument used at a nearby store in the same business area follows the two methods mentioned above.

5.7.1.4. Quantity of goods in violation (QGV): is the quantity of goods obtained by organizations or individuals through the sale of goods to consumers using measuring instruments with permissible errors during the period of violation. The quantity of goods in violation is the product of the quantity of goods sold during the period of violation due to the use of measuring instruments for violations (QGSD) and the measurement error for determining the violation (MEVP).

5.7.1.5. Average unit price of goods for calculating the value of goods in violation (AUP): is the average unit price published by the competent authority during the period of violation.

For example, at Store B in Example 2 mentioned above, from March 9, 2009 to August 17, 2009, the Ministry of Finance and the Ministry of Industry and Trade issued three permits for increasing gasoline prices, including specific increases in RON 92 gasoline as follows: April 12, 2009 at 13,700 VND/liter, May 15, 2009 at 14,200 VND/liter, and July 20, 2009 at 14,700 VND/liter.

Therefore, the authority responsible for imposing penalties needs to determine the average unit price of RON 92 gasoline during the period of violation by Store B as the basis for calculating the amount of illegal profit to be recovered for the state budget. Specifically, the calculation of the average unit price is: (13,700 + 14,200 + 14,700) VND/liter ÷ 3 = 14,200 VND/liter.

5.7.2. Amount of Illegal Profit (ILP): is the amount of money that organizations or individuals obtain due to the implementation of violations during the period of violation (using measuring instruments with errors exceeding permissible limits to sell goods to consumers during the period of violation).

The amount of illegal profit to be recovered for the state budget is determined according to the following formula:

Amount of Illegal Profit (ILP) = Quantity of Violated Goods (QVG) x Average Unit Price of Goods (AUPG), where:

Quantity of Violated Goods (QVG) = Quantity of Goods sold using measuring instruments to violate during the period of violation (QGS) x Measurement Error (ME).

For example, to calculate the amount of illegal profit of Store B in Example 2 mentioned above as follows:

ILP = QVG x AUPG

= QGS x ME x AUPG

= 158,000 liters x 0.35% x 14,200 VND/liter = 7,852,600 VND.

Thus, the amount of illegal profit that must be recovered for the state budget of the gasoline metering column of Store B is 7,852,600 VND.

Note: If an organization or individual uses multiple measuring instruments that are all in violation, when calculating the amount of illegal profit of the organization or individual due to measurement fraud to recover for the state budget, it is necessary to calculate the illegal profit for each measuring instrument, then calculate the total amount of illegal profit to be paid into the budget by summing up the amounts of illegal profit of each measuring instrument used for violation.

6. Violations of measurement regulations concerning pre-packaged goods in production and importation listed in the Catalogue of Pre-Packaged Goods Subject to State Management of Measurement (Article 10 of Decree 54) include the following acts:

6.1. The act of not marking quantity on the product label as prescribed is the act of organizations or individuals producing or importing pre-packaged goods without marking net weight, net volume, or actual length or area measurements on the packaging or product label. Marking incorrect units of measurement as prescribed is the act of marking incorrectly as directed in Point 1.1 Section II of this Circular.

6.2. The act of packaging goods below the specified quantity is understood as goods having an actual content less than the minimum allowable content or the average actual content of a batch of pre-packaged goods being less than the specified quantity.

6.3. The act of failing to meet measurement requirements, with errors exceeding permissible limits is understood as a batch of pre-packaged goods failing to meet requirements exceeding the allowable shortage limit; the average actual content of a batch of pre-packaged goods being less than the specified quantity and having an excess number of non-compliant units exceeding the prescribed limit.

The act of packaging goods below the specified quantity and failing to meet measurement requirements as stipulated in Article 10 of Decree 54 is pre-packaged goods that fail to meet the requirements set forth in Decision No. 02/2008/QĐ-BKHCN dated February 25, 2008 of the Minister of Science and Technology promulgating Regulations on Measurement Inspection for Pre-Packaged Goods Based on Quantity.

7. Violations of measurement regulations concerning pre-packaged goods in trade listed in the Catalogue of Pre-Packaged Goods Subject to State Management of Measurement (Article 11 of Decree 54) when applying should pay attention to the following contents:

7.1. The act prescribed in Clause 1 Article 11 of Decree 54 is the act of organizations or individuals trading goods violating the content directed at Point 6.1 Section II of this Circular.

7.2. The act prescribed in Clause 2 Article 11 of Decree 54 is the act of organizations or individuals trading goods violating the content directed at Points 6.2 and 6.3 Section II of this Circular.

The content prescribed in Subparagraph b Clause 3 Article 11 is understood as organizations or individuals wishing to continue circulating goods below the specified quantity must supplement the specified quantity or mark the specified quantity on the product label accurately reflecting the actual quantity already published on the pre-packaged goods label.

III. GUIDANCE ON DETERMINING ADMINISTRATIVE VIOLATIONS REGARDING STANDARDS, TECHNICAL REGULATIONS AND

PRODUCT QUALITY AND GOODS

1. Violations of provisions on declaring applicable standards (Article 12 of Decree 54) when applying should pay attention to the following contents:

Standards are applied on a voluntary basis. In cases where organizations or individuals producing or importing products or goods apply standards, they must declare the applicable standards on the product labels, packaging, or accompanying documents. If organizations or individuals producing or importing products or goods do not comply with this requirement, it constitutes a violation of Clause 1 Article 12 of Decree 54.

2. When applying Subparagraph c Clause 1 Article 16 of Decree 54 should pay attention to the following contents:

The act of not affixing conformity marks as prescribed when putting products or goods on the market only applies to products or goods that are subject to conformity declaration. After declaring conformity, such products or goods must be affixed with conformity marks before circulation. In practice, there are some products or goods that are subject to conformity declaration but cannot be affixed with conformity marks when circulated, for example, gasoline, diesel fuel, etc. Therefore, when encountering special products or goods, the provision at Subparagraph c Clause 1 Article 16 of Decree 54 shall not be applied for punishment.

3. When applying Article 17 of Decree 54 should pay attention to the following contents:

3.1. When applying the provisions of Clauses 3, 4, and 5 of this Article, the maximum fine for violations shall not exceed 30,000,000 VND.

According to Article 62 of the Administrative Violations Handling Ordinance, if it is found that the violation has criminal elements, the authority responsible must immediately transfer the case file to the competent criminal prosecution agency for handling.

3.2. The method of determining the total value of products or goods violating quality at the time of violation is carried out as follows:

The value of goods violating quality = quantity of goods violating quality x selling price.

Example: Company Dong Do was granted a Business Registration Certificate by the Department of Planning and Investment of Province Y for the business activity of trading motor fuel. The company's gas station has a fuel dispenser used to sell RON 92 gasoline. The fuel dispenser of Company Dong Do was inspected and certified by the Provincial Standard Measurement Quality Control Agency according to regulations.

On August 15, 2009, the Inspection Agency of the Science and Technology Department of Province Y conducted an unexpected inspection at the gas station of Company Dong Do located at Nguyen Van A Street, District B, Province Y due to suspected fraudulent quality practices in selling RON 92 gasoline, causing damage to consumers by mixing impurities that reduce the quality of gasoline below legal standards. The inspection team took samples of 15,000 liters of gasoline from the batch of RON 92 gasoline for testing at the VILAS 5 Technical Center. Based on the test results compared with the regulations, the samples did not meet the requirements of Technical Regulation QCVN 1:2007/BKHCN.

The inspection team concluded that the gas station of Company Dong Do engaged in selling RON 92 gasoline that did not meet the Technical Regulation QCVN 1:2007/BKHCN, violating Article 17, Clause 5, Point a of Decree 54.

The inspection team determined the total value of products and goods violating quality at the time of violation (August 15, 2009) as follows:

- Selling price of RON 92 gasoline at the time of inspection: the average price of prices published by authorized agencies during the period of violation, calculated according to the principle specified in Point 5.7.1.d of this Circular, and determined the price of RON 92 gasoline to be 13,500 VND per liter.

- Quantity of goods violating quality: the representative batch sent for testing is RON 92 gasoline = 15,000 liters.

- Value of goods violating quality: RON 92 gasoline = 15,000 liters x 13,500 VND per liter = 202,500,000 VND.

Therefore, the inspection team determined the total value of goods violating quality of the gas station of Company Dong Do to be 202,500,000 VND.

When issuing a penalty decision against the gas station of Company Dong Do for the aforementioned violation, the authorized authority stipulated in Articles 29, 30, and 31 of Decree 54 may impose a maximum fine of no more than 30,000,000 VND for the violation.

4. When applying Clause 1 of Article 21 of Decree 54, it should be carried out as follows:

One of the following manifestations shall be considered as providing false or incomplete information about the quality of products and goods according to standards and technical regulations:

4.1. Information on the product label does not match the actual quality of the product or goods;

4.2. Providing false or incomplete information about the quality of products or goods to consumers or competent authorities;

4.3. Products or goods that have not been declared compliant or certified as compliant but the transaction documents, signs, or advertisements of organizations or individuals, or their agents, contain information intended to deceive or mislead consumers into believing that these products or goods have been declared compliant or certified as compliant;

4.4. False or incomplete information about the quality of products or goods on mass media.

5. When applying Article 22 of Decree 54, attention should be paid to the following:

Organizations designated to inspect the quality of products and goods under this provision refer to those organizations stipulated in Article 45 of the Product Quality Law but charge fees for quality inspections according to Article 37 of the Product Quality Law.

IV. GUIDANCE ON DETERMINING ADMINISTRATIVE VIOLATIONS

REGARDING PRODUCT LABELS AND BARCODES

1. When applying the provisions of Clause 4 of Article 24 of Decree 54, attention should be paid to the following:

For organizations or individuals producing, processing, assembling, or packaging products or goods in Vietnam without labeling them as required (except for quantity) will be subject to penalties if such goods are only for domestic consumption.

In cases where organizations or individuals produce, process, assemble, or package products or goods in Vietnam for export, and the labels comply with the export contract or the importing country's requirements but do not fully include the mandatory contents as prescribed by Government Decree No. 89/2006/NĐ-CP dated September 30, 2006 on product labels (except for quantity), they will still be subject to penalties under this clause.

2. When applying the provisions of Clause 3 of Article 25 of Decree 54, attention should be paid to the following:

2.1. The violation stipulated in Point a of Clause 3 of Article 25 refers to: producing or importing foodstuffs, medicines for humans, veterinary drugs, animal feed, plant protection chemicals, or seeds without including any of the mandatory contents on the product label or failing to display the required information based on the nature of the goods as prescribed by laws on product labels.

If the label mentioned herein includes all mandatory contents (except for quantity) as prescribed by Government Decree No. 89/2006/NĐ-CP dated September 30, 2006, but the goods belong to the list of prepackaged goods subject to state management of measurement, then the provisions of Article 10 (for production and importation) and Article 11 (for trade) of Decree 54 shall be applied to impose penalties.

2.2. The violation stipulated in Point b of Clause 3 of Article 25 refers to producing or importing foodstuffs, medicines for humans, veterinary drugs, animal feed, plant protection chemicals, or seeds with an expiration date but without distinguishing the expiration date or with the expiration date erased or altered.

2.3. The violation stipulated in Point c of Clause 3 of Article 25 refers to producing or importing goods with a product label, trademark, or geographical indication that matches another organization's or individual's product label, trademark, or geographical indication without permission from that organization or individual.

3. When applying Article 26 of Decree 54, attention should be paid to the following:

3.1. The act of violating the provisions of Clause 1, Article 26 of Decree 54 is the act of not notifying in writing to the competent authority when there is a change in name, transaction address, or when the Barcode Certificate is lost, damaged, or not sending the list of Global Trade Item Numbers (GTIN) and Global Location Numbers (GLN) used for the state management agency with authority or not notifying in writing, accompanied by evidence proving the use of foreign codes to the competent authority when using foreign codes for products manufactured in Vietnam, which is the act of organizations and individuals producing goods when there is a change as mentioned herein but not notifying in writing to the General Department of Standardization, Measurement, and Quality Control.

3.2. Unauthorized use of national barcode is understood as the act of organizations and individuals producing and trading goods arbitrarily attaching the number sequence 893 before the barcode printed on the product label without permission from the General Department of Standardization, Measurement, and Quality Control.

3.3. Unauthorized use of another enterprise's barcode is understood as the act of organizations and individuals arbitrarily attaching the barcode of another organization or individual, who has been granted a certificate of use by the General Department of Standardization, Measurement, and Quality Control, to the product label.

3.4. The act of violating Point a, Clause 2, Article 26 of Decree 54 is understood as follows: organizations and individuals who have been granted the right to use barcodes by the General Department of Standardization, Measurement, and Quality Control, but fail to fulfill their obligations to maintain the validity of the certificate of use or fail to comply with the regulations on barcodes leading to the revocation of the right to use. After the right to use has expired, organizations and individuals continue to use the barcode on the product label.

3.5. The act of violating the provisions of Clause 3, Article 26 of Decree 54 is understood as the act of organizations and individuals producing and trading products for export under contracts or at the request of foreign customers, who have correctly labeled the products with foreign barcodes but without authorization from the competent foreign authority or without permission from the foreign entity that is the owner, and without registering with the General Department of Standardization, Measurement, and Quality Control.

4 ||| 4. When applying Article 27 of Decree 54, attention should be paid to:

4.1. The act of violating Point a, Clause 1, Article 27 is the act of organizations and individuals producing and trading goods without a Barcode Use Right Certificate but fraudulently making consumers believe that they have such a certificate issued by the General Department of Standardization, Measurement, and Quality Control.

4.2. The act of violating Point b, Clause 1, Article 27 is the act of using a Barcode Use Right Certificate issued by an unauthorized agency (not issued by the General Department of Standardization, Measurement, and Quality Control).

V. ACTS OF OBSTRUCTING INSPECTION AND AUDIT ACTIVITIES

1. When applying the provisions of Point b, Clause 1, Article 28 of Decree 54, attention should be paid to:

Organizations and individuals committing any of the following acts shall be considered as violating the provisions of Point b, Clause 1, Article 28:

1.1. Deliberately misunderstanding or misinterpreting laws and regulations on inspection and audit when the authorized person in the inspection and audit team disseminates and guides in writing.

1.2. Assigning persons without authority to work with the inspection and audit team or failing to authorize persons to work with the inspection and audit team (except in cases of force majeure).

1.3. Engaging in other acts aimed at obstructing or creating difficulties for inspections and audits.

2. Organizations and individuals committing the following act shall be considered as violating the provisions of Clause 2, Article 28 of Decree 54: products, goods, or evidence showing administrative violations being temporarily seized or sealed by the inspection agency and then handed over to the organization or individual suspected of violation for management and preservation while awaiting a decision from the authorized person, if during this period, the organization or individual arbitrarily changes the position, method, and seal marks.

VI. GUIDANCE ON SANCTION AUTHORITY

1. Sanction authority of the Science and Technology Professional Inspectorate (Article 29 of Decree 54).

When applying Article 29 of Decree 54, attention should be paid to the following issues:

1.1. Science and Technology Professional Inspectors (Clause 1, Article 29) include: Inspectors working at the Ministry of Science and Technology Inspectorate, the General Department of Standardization, Measurement, and Quality Control Inspectorate, and the Provincial Science and Technology Inspectorate.

1.2. The sanction authority for administrative violations in the field of standardization, measurement, and product quality includes the positions specified in Articles 29, 30, and 31 of Decree 54.

2. Administrative Violation Handling Procedures

Authority to draft administrative violation records in the field of standardization, measurement, and product quality: according to Article 50 of the Inspection Law and Article 55 of the Administrative Violation Handling Ordinance 2002 and the Ordinance Amending and Supplementing the Administrative Violation Handling Ordinance 2008, the following persons have the authority to draft administrative violation records in the field of standardization, measurement, and product quality: Chief Inspector of the Ministry of Science and Technology, Chief Inspector of the Provincial Science and Technology Inspectorate, Head of the Professional Inspection Team for Product Measurement and Quality, Science and Technology Professional Inspectors, and those with sanction authority as stipulated in Articles 30 and 31 of Decree 54.

In case the person drafting the administrative violation record does not have sanction authority, the head of that person must sign the administrative violation record.

3. Procedures for temporarily seizing evidence and means of administrative violations.

The authority and procedures for applying temporary detention measures on evidence and means of administrative violation shall comply with the provisions of Article 46 of the Ordinance on Handling Administrative Violations. The management of evidence and means temporarily detained under administrative procedures shall be carried out in accordance with Decree No. 70/2006/NĐ-CP dated July 24, 2006, stipulating the management of evidence and means temporarily detained under administrative procedures; and Decree No. 22/2009/NĐ-CP dated February 24, 2009, amending and supplementing certain articles of Decree No. 70/2006/NĐ-CP dated July 24, 2006.

VII. IMPLEMENTATION ORGANIZATION

1. This Circular takes effect 45 days from the date of issuance.

2. During the implementation process, if there are any difficulties, it is requested that relevant agencies and units promptly report to the Ministry of Science and Technology for research and resolution./.