Circular No. 2433/TT-KCM guiding the implementation of Decree No. 26 dated April 26, 1996 of the Government on administrative penalties for violations related to environmental protection.

CIRCULAR

Regarding guidance on implementing Decree No. 26/CP dated April 26, 1996 of the Government on administrative penalties for environmental protection violations

Pursuant to Article 29 of Decree No. 26/CP dated April 26, 1996 of the Government on administrative penalties for environmental protection violations, the Ministry of Science, Technology, and Environment provides guidance on implementation as follows:

This technical regulation sets out technical requirements, testing methods, sampling procedures; management requirements; responsibilities of organizations and individuals producing, trading, and importing cigarettes.

1. Administrative violations concerning environmental protection are actions carried out intentionally or negligently by organizations or individuals that violate state management regulations on environmental protection without reaching the level requiring criminal prosecution.

All administrative violations concerning environmental protection must be subject to administrative penalties according to Decree No. 26/CP dated April 26, 1996 of the Government on administrative penalties for environmental protection violations.

2. Organizations and individuals referred to in Clause 2, Article 1 of Decree No. 26/CP shall be understood as follows:

a. Organizations include: State agencies, Vietnam Fatherland Front, member organizations of the Fatherland Front, economic organizations, social organizations, and armed forces units as prescribed by Vietnamese law.

b. Individuals include:

- Vietnamese citizens with full capacity under Vietnamese law:

Individuals aged from 14 to under 16 years old will only be subject to administrative penalties for environmental protection violations if they commit such acts intentionally; individuals aged 16 years and above must be subject to administrative penalties for environmental protection violations for all violations committed by themselves.

Military personnel on active duty, reservists during concentrated training periods, and members of the People's Public Security Forces who commit administrative violations concerning environmental protection shall be subject to administrative penalties like other citizens.

- Foreign nationals and stateless persons committing administrative violations concerning environmental protection within the territory of Vietnam shall be subject to administrative penalties according to Decree No. 26/CP, except where international treaties provide otherwise.

3. Only those persons specified in Articles 20 and 21 of Decree No. 26/CP have the authority to impose administrative penalties for environmental protection violations. a. In cases where there is no head position as stipulated in Article 20 of Decree No. 26/CP, the deputy of that position has the authority to impose penalties as the head.

b. In cases where the head positions stipulated in Article 20 of Decree No. 26/CP are absent or authorized in writing by them, their deputies have the authority to impose penalties as the heads.

4. Persons authorized to impose administrative penalties for environmental protection violations must base their decisions on the personal circumstances, nature, and degree of violation, as well as mitigating and aggravating circumstances, to determine appropriate forms, levels of fines, and other administrative measures.

Mitigating and aggravating circumstances serving as bases for determining forms and levels of penalties include:

a. Mitigating circumstances as provided in Article 7 of the Law on Handling Administrative Violations include:

- Organizations or individuals who have taken action to prevent, reduce the harm caused by the violation, or voluntarily remedied the consequences and compensated for losses.

- Violation occurred under mental provocation caused by illegal acts of others;

- Individuals who are pregnant women, elderly, sick, or disabled persons whose ability to understand or control their behavior is limited.

- Violations due to particularly difficult circumstances not caused by themselves.

- Violation due to backwardness in knowledge.

b. Aggravating circumstances as provided in Article 8 of the Law on Handling Administrative Violations include:

- Organized violation;

- Repeated or recidivist violations;

- Inciting, enticing minors to violate, or forcing dependents to violate.

- Violation while intoxicated from alcohol or other stimulants;

- Exploiting official positions or powers to violate.

- Exploiting wartime conditions, natural disasters, or other extraordinary difficulties in society to violate.

- Violating during the execution of a criminal sentence or administrative penalty decision.

- Evading or concealing administrative violations after committing them.

5. If an individual or organization commits multiple administrative violations at the same time, they shall be subject to administrative penalties for each violation; if all violations fall within the jurisdiction of one person, a single penalty decision shall be issued; if the penalties are fines, they must be combined into a total fine but must clearly specify the fine for each violation. If one of the violations requires a higher level of penalty than the current authority can handle, the case file shall be transferred to a higher-level authority for decision on penalties.

When multiple people jointly commit an administrative violation concerning environmental protection, each violator shall be subject to penalties.

6. For violations with many complex circumstances making it difficult to determine whether they are administrative violations or criminal offenses, discussions should be held with the People's Procuracy at the same level, and decisions made only after receiving written opinions from the People's Procuracy.

7. For administrative violations concerning environmental protection specified in Decree No. 26/CP that overlap with administrative violations concerning environmental protection specified in other decrees on administrative penalties, which prescribe the inspection authority of the specialized inspection agency for science, technology, and environment, penalties shall be imposed according to Decree No. 26/CP.

8. Unexpected events, emergency situations, and force majeure are understood as natural disasters, enemy attacks, and other unforeseeable objective obstacles that cannot be overcome despite taking all possible measures to mitigate them.

II. APPLICATION OF PENALTY FORMS:

1. Forms of Penalty: Organizations and individuals committing administrative violations concerning environmental protection must bear one of the following main penalties: Warning, Fine.

Main forms of penalty may be applied independently or supplemented with additional penalties as prescribed in Decree No. 26/CP.

a. Warning: Applied to organizations and individuals committing minor administrative violations concerning environmental protection for the first time, unintentionally, with mitigating circumstances. b. Fine: Applied to organizations and individuals committing administrative violations concerning environmental protection with characteristics and severity requiring monetary penalties. The specific amount of the fine for each violation is determined according to the principles set forth in Article 5 of Decree No. 26/CP.

c. Supplementary sanctions: In addition to the main sanctions, depending on the nature and severity of the violation, organizations and individuals may be subject to supplementary sanctions:

- Confiscation of contraband items, means, and tools involved in the violation;

- Revocation of environmental permit usage rights (This supplementary sanction shall only apply to projects and production and business establishments that have been granted environmental permits directly related to the violation behavior; when counterfeit environmental permits, environmental permits issued beyond authority, or permits containing content contrary to the Environmental Protection Law are discovered, they must be immediately confiscated and reported in writing to the Ministry of Science and Technology and Environment, the Department of Science and Technology and Environment, and relevant organizations);

The above supplementary sanctions cannot be applied independently but must be applied concurrently with the main sanctions as provided for in Decree No. 26/CP where supplementary sanctions are stipulated.

d. Other measures: In addition to the sanctions mentioned in Clause a, Clause b, and Clause c of this point, organizations and individuals violating administrative regulations on environmental protection may also be subject to other measures such as: Compulsory compensation for damages as prescribed in Article 2 of Decree No. 26/CP; compulsory implementation of remedial measures to restore the initial state altered by the violation. If organizations and individuals do not voluntarily comply, the authorized enforcement agency shall enforce these measures. All costs associated with the enforcement of these measures shall be borne by the violators.

2. Cases Not Subject to Administrative Sanctions for Violations of Environmental Protection Regulations:

a. Exceeded statute of limitations for punishment.

b. Administrative violations of environmental protection regulations that exhibit criminal characteristics and have been referred by the competent administrative sanction enforcement agency to the criminal investigation agency.

c. Individuals under 14 years old, persons suffering from mental illness, or other illnesses that impair their ability to recognize or control their actions.

d. Violations occurring in situations of emergency, unexpected events, or force majeure.

3. Acts of violation that have been punished according to Government Decrees regulating administrative sanctions for Customs, Trade, Maritime... but which have caused environmental damage must compensate for losses in accordance with the provisions of the Environmental Protection Law.

4. In cases of violations of regulations set by State management agencies on environmental protection when using or exploiting natural landscapes, penalties shall be imposed in accordance with Article 7 of Decree No. 26/CP.

5. Acts of erasing, forging, altering environmental permits, or rationalizing environmental permit application documents shall be penalized in accordance with Clause 2, Article 10 of Decree No. 26/CP.

6. In cases of exporting, importing technology, equipment, important individual equipment, hazardous chemicals, biological products (collectively referred to as goods) related to environmental protection without a permit or not in accordance with the contents of the permit, penalties shall be imposed in accordance with Clause 2, Clause 3, Article 10 of Decree No. 26/CP; if the aforementioned goods are not permitted or adjusted by the State management agency on environmental protection, they must be re-exported out of Vietnam within 60 days. Failure to comply within the specified period will result in confiscation for public funds or destruction.

In cases of violations concerning import/export permits for biological or chemical products, radioactive materials, animals, plants, genetic sources related to environmental protection, penalties shall be imposed in accordance with Article 10 of Decree No. 26/CP.

7. In cases of violations concerning prevention, control, and remediation of environmental incidents during oil processing and storage, penalties shall be imposed in accordance with Clause 1, Article 12 of Decree No. 26/CP.

8. In cases of violations concerning the establishment of centralized collection points, waste disposal sites, or treatment facilities in accordance with regulations set by State management agencies on environmental protection, penalties shall be imposed in accordance with Clause 3, Article 15 of Decree No. 26/CP.

9. In cases of violations concerning firework ignition regulations, penalties shall be imposed in accordance with Clause 2, Article 18 of Decree No. 26/CP.

III. AUTHORITY TO IMPOSE FINES

1. Inspectors specializing in science, technology, and environment belonging to inspection organizations: Provincial and centrally-administered city Science, Technology, and Environment Departments' inspectors, Environment Bureau's inspectors, and Ministry of Science, Technology, and Environment's inspectors who are performing official duties shall exercise the power to impose sanctions as stipulated in Clause 1, Article 20 of Decree No. 26/CP.

2. Chief inspectors specializing in science, technology, and environment belonging to provincial and centrally-administered city Science, Technology, and Environment Departments (Chief inspectors of Science, Technology, and Environment Departments) shall exercise the power to impose sanctions as stipulated in Clause 2, Article 20 of Decree No. 26/CP.

a. For complex cases or cases involving supplementary sanctions where the contraband items, means, and tools involved in the violation are confiscated or destroyed and valued at over 15 million VND, the case file and report shall be submitted to the Chief Inspector of Science, Technology, and Environment. After receiving guidance from the Chief Inspector of the Ministry, the decision to impose sanctions can be made.

b. For cases involving fines exceeding 10 million VND, the case file shall be transferred to the People's Committee of the province or centrally-administered city (hereinafter referred to as the province) for the Chairman of the People's Committee of the province to issue the decision to impose sanctions. When transferring the administrative violation case file on environmental protection to the Chairman of the People's Committee of the province, it must be accompanied by a summary report from the Director of the Department of Science, Technology, and Environment detailing the incident and recommending the form of sanctions and other measures.

After the decision to impose sanctions by the Chairman of the People's Committee of the province, the Chief Inspector of the Department of Science, Technology, and Environment shall be responsible for organizing the enforcement of the decision to impose sanctions.

3. The Chief Inspector of the Environment Bureau shall exercise the power to impose sanctions as stipulated in Clause 3, Article 20 of Decree No. 26/CP.

a) For complex cases or cases involving supplementary sanctions where the contraband items, means, and tools involved in the violation are confiscated or destroyed and valued at over 25 million VND, the case file and report shall be submitted to the Chief Inspector of the Ministry of Science, Technology, and Environment. After receiving guidance from the Chief Inspector of the Ministry, the decision to impose sanctions can be made.

b) For violations subject to fines exceeding 20 million dong, procedures shall be carried out to transfer the case file to the People's Committee of the province where the violation occurred or the People's Committee of the province where the organization causing the violation has its headquarters for the Chairman of the People's Committee of the province to issue the penalty decision.

The administrative violation case file on environmental protection, when transferred to the Chairman of the Provincial People's Committee, must be accompanied by a summary report of the incident's content, recommendations for the form of punishment, other measures, and a letter requesting the Chairman of the Provincial People's Committee to issue the penalty decision.

4. The Director of the Inspectorate of the Ministry of Science and Technology and Environment shall exercise the power to impose penalties as provided for in Clause 3, Article 20 of Decree No. 26/CP.

a. The Director of the Inspectorate of the Ministry shall impose penalties on violations committed by inspection teams for environmental protection established by the Minister of Science and Technology and Environment, inspection teams for environmental protection established by the Director of the Inspectorate of the Ministry, and inspectors under the Inspectorate of the Ministry who discover and recommend penalties; consider issuing decisions to penalize violations based on recommendations from the Director of the Environmental Protection Department.

Impose penalties on violations according to directives from higher-level state management agencies.

b) For violations subject to fines exceeding 20 million dong, procedures shall be carried out to transfer the case file to the People's Committee of the province where the violation occurred or the People's Committee of the province where the organization causing the violation has its headquarters for the Chairman of the People's Committee of the province to issue the penalty decision.

The administrative violation case file on environmental protection, when transferred to the Chairman of the Provincial People's Committee, must be accompanied by a summary report of the incident's content, recommendations for the form of punishment, other measures, and a letter from the Ministry of Science and Technology and Environment requesting the Chairman of the Provincial People's Committee to issue the penalty decision. The Director of the Inspectorate of the provincial agency shall implement the penalty decision of the Chairman of the Provincial People's Committee.

5. Chairmen of People's Committees at all levels shall exercise the power to impose penalties as provided for in Clause 4, Clause 5, and Clause 6 of Article 20 of Decree No. 26/CP.

a. The Chairman of the Commune, Ward, Town People's Committee has the authority to impose fines up to 200,000 dong; confiscate or destroy contraband items, means, and tools of violation with a value up to 500,000 dong. For cases of violation subject to fines exceeding 200,000 dong; supplementary penalties where contraband items, means, and tools of violation are confiscated or destroyed with a value exceeding 500,000 dong, procedures shall be carried out to transfer the case file to the People's Committee of the district, city district, town, or provincial city directly under the province.

The administrative violation case file on environmental protection, when transferred to the Chairman of the People's Committee of the district, city district, town, or provincial city directly under the province, must be accompanied by a summary report of the incident's content and a letter from the Chairman of the Commune, Ward, Town People's Committee requesting the Chairman of the People's Committee of the district, city district, town, or provincial city directly under the province to issue the penalty decision.

b. The Chairman of the People's Committee of the district, city district, town, or provincial city directly under the province has the authority to impose fines up to 10 million dong. For violations subject to fines exceeding 10 million dong, the Chairman of the People's Committee of the district, city district, town, or provincial city directly under the province shall carry out procedures to transfer the case file to the People's Committee of the province or central city.

The administrative violation case file on environmental protection, when transferred to the Chairman of the People's Committee of the province, must be accompanied by a summary report of the incident's content and a letter from the Chairman of the People's Committee of the district, city district, town, or provincial city directly under the province requesting the Chairman of the People's Committee of the province to issue the penalty decision.

6. Specialized State Inspection Organizations and Customs shall exercise the power to impose penalties as provided for in Article 21 of Decree No. 26/CP.

IV. PROCEDURES FOR IMPOSING PENALTIES ON ADMINISTRATIVE VIOLATIONS AND IMPLEMENTATION OF DECISIONS TO IMPOSE PENALTIES ON ADMINISTRATIVE VIOLATIONS:

1. When imposing administrative penalties for environmental protection in the form of a warning, there is no need to prepare a violation record but the penalty decision can be issued on the spot.

2. The administrative penalty decision for environmental protection may include the effective date (in cases where penalties are imposed on foreign organizations or individuals not present in Vietnam at the time of issuance, or due to time, space conditions, or other reasons, it is impossible to enforce the penalty decision within five days from receipt of the penalty decision).

3. In cases where fines are imposed along with the measure of confiscating contraband items, means, and tools of violation beyond the deadline for compliance with the penalty decision but the violator does not comply, enforcement measures shall be organized to collect the fine and confiscate contraband items, means, and tools of violation.

4. The Directors of specialized Inspectorates of Science, Technology, and Environment at various levels, and the Director of the Environmental Protection Department shall request the People's Police Force to cooperate with state management agencies on Science, Technology, and Environment to organize the implementation of the Forced Execution Decision as stipulated in Clause 3, Article 55 of the Administrative Violation Handling Ordinance.

V. SETTLEMENT OF COMPLAINTS:

1. The person authorized to decide on administrative penalties for environmental protection shall be responsible for settling the first complaint against the penalty decision made by themselves.

2. The Director of the Inspectorate of the Ministry of Science, Technology, and Environment, the Director of the Inspectorate of the provincial Department of Science, Technology, and Environment, and the Director of the Environmental Protection Department shall settle the second complaint against the penalty decisions made by inspectors of the same level inspectorate. This decision is final.

3. The Director of the Department of Science, Technology, and Environment shall settle the second complaint against the penalty decision of the Director of the Inspectorate; the Director of the Environmental Protection Bureau shall settle the second complaint against the penalty decision of the Director of the Environmental Protection Bureau; the Minister of Science, Technology, and Environment shall settle the second complaint against the penalty decision of the Director of the Inspectorate of the Ministry. This decision is final.

4. The Chairman of the District People's Committee shall settle the second complaint against the penalty decision of the Chairman of the Commune, Ward, Town People's Committee. This decision is final.

5. The Chairman of the Provincial People's Committee shall settle the second complaint against the penalty decision of the Chairman of the District People's Committee. This decision is final.

6. The Minister of Science, Technology, and Environment shall resolve the second appeal against the decision on administrative penalties issued by the Chairman of the Provincial People's Committee. If the Chairman of the Provincial People's Committee agrees with the decision of the Minister of Science, Technology, and Environment, then the Minister’s decision shall be final. In case the Chairman of the Provincial People's Committee disagrees with the decision of the Minister of Science, Technology, and Environment, the Chairman of the Provincial People's Committee shall appeal to the State Inspector General. The decision of the State Inspector General shall be final.

The procedures for appealing decisions on administrative penalties for environmental protection violations shall be resolved according to Articles 87, 88, and 89 of the Ordinance on Handling Administrative Violations.

VI. IMPLEMENTATION

1. The Chief Inspector of the Ministry of Science, Technology, and Environment, the Director of the Environmental Department, and the Directors of the Departments of Science, Technology, and Environment at all levels shall organize strict inspections of the implementation of principles and procedures for administrative penalties in accordance with the provisions of the law.

The Chief Inspector of the Ministry of Science, Technology, and Environment, the Chief Inspector of the Environmental Department, and the Chief Inspectors of the Departments of Science, Technology, and Environment at all levels shall provide guidance on the handling of administrative violations related to environmental protection to inspection organizations and inspectors at various levels of Science, Technology, and Environment.

2. The collection and use of fines for administrative violations related to environmental protection shall be carried out in accordance with Circular No. 52/TC/CSTC dated September 12, 1996, of the Ministry of Finance, guiding the collection and use of fines for administrative violations.

3. Inspectors and heads of inspection organizations at all levels who have the authority to impose administrative penalties for environmental protection violations, if they violate the principles and procedures for imposing administrative penalties as stipulated by law, or show a lack of responsibility or engage in harassment or seek personal gain, shall be subject to legal sanctions depending on the severity of the violation; if such actions cause material damage to organizations or individuals, they must compensate according to the law.

This Circular takes effect from the date of signature.

Any difficulties or obstacles encountered during the implementation process should be promptly reported to the Inspectorate of the Ministry of Science, Technology, and Environment for consideration and decision by the Ministry of Science, Technology, and Environment.