Circular No. 71/2003/TT-BNN on guiding the implementation of Decree No. 26/2003/NĐ-CP dated March 19, 2003 of the Government on administrative penalties for violations in the field of plant protection and quarantine.

CIRCULAR OF THE

MINISTRY OF AGRICULTURE AND RURAL DEVELOPMENT

GUIDING THE IMPLEMENTATION OFDECREE NO. 26/2003/NĐ-CP DATED MARCH 19, 2003 OF THE GOVERNMENT

PROVIDING FOR ADMINISTRATIVE SANCTIONS FOR VIOLATIONS IN THE FIELD OF PLANT PROTECTION AND QUARANTINE

_________________________

TO ENSURE CORRECT AND EFFECTIVE IMPLEMENTATION OF DECREE NO. 26/2003/NĐ-CP DATED MARCH 19, 2003 19/3/2003 OF THE GOVERNMENT PROVIDING FOR ADMINISTRATIVE SANCTIONS FOR VIOLATIONS IN THE FIELD OF PLANT PROTECTION AND QUARANTINE. THIS DECREE WAS PUBLISHED IN THE OFFICIAL GAZETTE ON 10/4/2003 AND BECAME EFFECTIVE FROM 25/4/2003. THE MINISTRY OF AGRICULTURE AND RURAL DEVELOPMENT GUIDES THE IMPLEMENTATION AS FOLLOWS:

I. GENERAL PROVISIONS

1. THE SCOPE OF ADMINISTRATIVE SANCTIONS FOR VIOLATIONS IN THE FIELD OF PLANT PROTECTION AND QUARANTINE IS PROVIDED FOR IN ARTICLE 1 OF THE DECREE, WITH THE FOLLOWING POINTS TO BE NOTED:

a) THE ACTIONS SUBJECT TO SANCTION MUST BE THOSE VIOLATIONS SPECIFIED IN DECREE NO. 26/2003/NĐ-CP. WHEN INSPECTING AND CHECKING VIOLATIONS, IF ANY OF THE FOLLOWING INDICATIONS ARE FOUND: HIGH VALUE (IN TERMS OF QUANTITY OR MONEY) OF VIOLATING GOODS, COMPLEX NATURE OF THE VIOLATION, REPEAT OFFENSES, SEVERE CONSEQUENCES, THEN BEFORE ISSUING AN ADMINISTRATIVE SANCTION DECISION, THE SANCTIONING AUTHORITY MUST DISCUSS WITH THE SAME LEVEL PROSECUTION AUTHORITY.

b) IN CASES WHERE AN INDIVIDUAL HAS BEEN CHARGED, PROSECUTED, BUT LATER THE INVESTIGATION IS SUSPENDED OR THE CASE IS DISMISSED, IF THE ACTION HAS SIGNS OF VIOLATION OF ADMINISTRATIVE LAW IN THE FIELD OF PLANT PROTECTION AND QUARANTINE, SUCH VIOLATIONS MUST BE HANDLED WITH ADMINISTRATIVE SANCTIONS ACCORDING TO THE PROVISIONS OF DECREE NO. 26/2003/NĐ-CP.

2. THE SUBJECTS OF ADMINISTRATIVE SANCTIONS ARE INDIVIDUALS AND ORGANIZATIONS AS PROVIDED FOR IN ARTICLE 2 OF THE DECREE, UNDERSTOOD AS FOLLOWS:

a) INDIVIDUALS INCLUDE: VIETNAMESE CITIZENS Male, FOREIGNERS, STATELESS PERSONS WHO HAVE FULL CAPACITY UNDER VIETNAMESE LAW Male.

b) ORGANIZATIONS INCLUDE: STATE AUTHORITIES, ECONOMIC ORGANIZATIONS, POLITICAL ORGANIZATIONS, POLITICAL-SOCIAL ORGANIZATIONS, SOCIAL ORGANIZATIONS, SOCIAL-PROFESSIONAL ORGANIZATIONS.  profession.

3. THE PRINCIPLES OF ADMINISTRATIVE SANCTIONS AS PROVIDED FOR IN ARTICLE 3 OF THE DECREE, WITH THE FOLLOWING POINTS TO BE NOTED:

a) IN CASE AN INDIVIDUAL VIOLATES MULTIPLE ADMINISTRATIVE LAWS AT THE SAME TIME, THEY SHALL BE SANCTIONED FOR EACH VIOLATION. SPECIFICALLY:

IF ALL VIOLATIONS FALL WITHIN THE SANCTIONING AUTHORITY'S JURISDICTION, ONE COMMON SANCTION DECISION SHALL BE ISSUED, BUT EACH VIOLATION MUST BE CLEARLY STATED, ALONG WITH THE FORM AND AMOUNT OF THE SANCTION FOR EACH VIOLATION;

IF ONE OF THE VIOLATIONS INVOLVES A FINANCIAL PENALTY, THE VALUE OF THE CONFISCATED GOODS OR MEANS, OR A SANCTION FORM OR MEASURE THAT EXCEEDS THE AUTHORITY'S JURISDICTION, THE ENTIRE CASE FILE AND EVIDENCE MUST BE TRANSFERRED TO THE SUPERIOR AUTHORITY WITH JURISDICTION.

b) NO SANCTION SHALL BE IMPOSED ON AN INDIVIDUAL WHO VIOLATES ADMINISTRATIVE LAWS WHILE SUFFERING FROM MENTAL ILLNESS OR OTHER DISEASES THAT IMPAIR THEIR ABILITY TO PERCEIVE OR CONTROL THEIR ACTIONS, AS PROVIDED FOR IN CLAUSE 5, ARTICLE 3 OF THE DECREE, IF CONFIRMED BY A QUALIFIED HEALTH AUTHORITY.

c) DURING EXPORT, IMPORT, TEMPORARY IMPORT FOR REEXPORT, TEMPORARY EXPORT FOR REIMPORT, AND TRANSIT OF ITEMS SUBJECT TO PLANT QUARANTINE, IF THERE ARE VIOLATIONS, IN ADDITION TO BEING HANDLED WITH ADMINISTRATIVE SANCTIONS ACCORDING TO THIS DECREE, THE VIOLATOR MUST ALSO BE REQUIRED TO UNDERGO QUARANTINE AS REQUIRED AND PAY THE CURRENT FEES AND CHARGES FOR PLANT QUARANTINE.

II. FORMS OF ADMINISTRATIVE SANCTIONS AND MEASURES TO REMEDY CONSEQUENCES

a) WARNING SANCTION: APPLIED ONLY TO VIOLATIONS SPECIFIED AS WARRANTING A WARNING SANCTION AND ONLY TO SMALL FIRST-TIME VIOLATIONS BY INDIVIDUALS OR ORGANIZATIONS CAUSED BY NEGLIGENCE WITHOUT CAUSING CONSEQUENCES AND WITHOUT NECESSITY FOR A FINANCIAL PENALTY.

1. Principal forms of administrative penalty:

b) FINANCIAL SANCTION: THE AMOUNT OF FINANCIAL SANCTION IN EACH SANCTION RANGE IS APPLIED AS FOLLOWS:

THE LOWEST AMOUNT OF THE RANGE IF IT IS A FIRST-TIME VIOLATION WITH MITIGATING CIRCUMSTANCES.

THE MID-RANGE AMOUNT OF THE RANGE IF THERE ARE ONE OR TWO AGGRAVATING CIRCUMSTANCES BUT DO NOT INVOLVE

ANY OF THE FOLLOWING:  ORGANIZED VIOLATION;

REPEAT VIOLATION OR REOFFENDING;

INCITING, DRAWING IN MINORS TO VIOLATE, OR FORCING DEPENDENTS TO VIOLATE.

CALCULATION AS FOLLOWS:

LOWEST AMOUNT OF FINANCIAL SANCTION

HIGHEST AMOUNT OF FINANCIAL SANCTION  +  THE HIGHEST AMOUNT OF THE RANGE IF THERE ARE TWO OR MORE AGGRAVATING CIRCUMSTANCES OR IF THE VIOLATION INVOLVES ANY OF THE THREE AGGRAVATING CIRCUMSTANCES MENTIONED ABOVE.

2. ADDITIONAL SANCTIONS: WHEN APPLYING THESE FORMS, THE FOLLOWING REQUIREMENTS MUST BE MET:

ADDITIONAL SANCTIONS CAN ONLY BE APPLIED WHEN THE VIOLATION IS SPECIFIED IN DECREE NO. 26/2003/NĐ-CP TO WARRANT ADDITIONAL SANCTIONS.

ADDITIONAL SANCTIONS CANNOT BE APPLIED INDEPENDENTLY BUT MUST BE APPLIED ALONGSIDE THE PRIMARY SANCTION.

WHEN APPLYING ADDITIONAL SANCTIONS, THE PROCEDURES SPECIFIED BY LAW MUST BE STRICTLY FOLLOWED.

a) SUSPENSION OF THE RIGHT TO USE NEW PLANT PROTECTION CHEMICAL TESTING LICENSES, PRODUCTION, PROCESSING, BOTTLING, PACKAGING, AND SALE LICENSES, AND FUMIGATION AND DISINFECTANT LICENSES: THE SPECIFIC PERIOD OF SUSPENSION WILL BE DETERMINED BASED ON THE NATURE AND GRAVITY OF THE VIOLATION.

b) CONFISCATION OF VIOLATION EVIDENCE AND MEANS: ONLY EVIDENCE AND MEANS ALLOWED BY LAW TO BE CONFISCATED CAN BE CONFISCATED. CONFISCATION SHALL NOT BE APPLIED IN CASES WHERE THE EVIDENCE AND MEANS WERE ILLEGALLY OBTAINED OR USED BY THE VIOLATOR AND MUST BE RETURNED TO THE LEGAL OWNER OR MANAGER UNLESS THE EVIDENCE IS FAKE GOODS WITH NO USE VALUE OR ITEMS HARMFUL TO HUMAN HEALTH, ANIMALS, AND PLANTS, WHICH MUST BE DESTROYED.

THE HANDLING OF CONFISCATED EVIDENCE AND MEANS: SHALL BE CONDUCTED IN ACCORDANCE WITH ARTICLE 61 OF THE ADMINISTRATIVE VIOLATION HANDLING ORDINANCE 2002.  3. MEASURES TO REMEDY CONSEQUENCES: WHEN APPLYING THESE MEASURES, THE SAME REQUIREMENTS AS WHEN APPLYING ADDITIONAL SANCTIONS MUST BE MET.

ADDITIONALLY, IN CASES WHERE NO SANCTION DECISION IS ISSUED, THE AUTHORIZED PERSON MAY STILL ISSUE A DECISION TO APPLY THE REMEDIAL MEASURES AS PROVIDED FOR IN CLAUSE 3, ARTICLE 7 OF DECREE NO. 26/2003/NĐ-CP AND CONFISCATE PROHIBITED ITEMS.

3. Remedial measures: When applying these forms, it must also ensure requirements similar to those when applying additional administrative sanctions.

Additionally, in cases where a penalty decision is not issued, the competent authority may still issue a decision to apply the remedial measures prescribed in Clause 3, Article 7 of Decree No. 26/2003/NĐ-CP and confiscate the contraband items subject to administrative violations.

a) When applying compulsory destruction measures, attention must be paid to:

For objects infected with harmful organisms that are subject to plant quarantine in Vietnam or infected with new harmful organisms that cannot be eradicated in Vietnam, the destruction must be supervised by the competent state agency for plant protection and quarantine and Customs or local authorities.

For pesticides, pesticide raw materials, and pesticide packaging when being destroyed, it must be carried out in accordance with the provisions of Article 22 of the Pesticide Management Regulations issued together with Decree No. 58/2002/NĐ-CP dated June 3, 2002 of the Government and Decision No. 145/2002/QĐ-BNN dated December 18, 2002 of the Ministry of Agriculture and Rural Development.

b) When there is an administrative violation that requires the application of compulsory removal from Vietnamese territory Male or re-export, the file must be transferred to the competent authority for handling in accordance with the provisions of Article 22 of Decree No. 26/2003/NĐ-CP.

III. AUTHORITY TO IMPOSE FINES

1. The authority to impose fines for administrative violations in the field of plant protection and quarantine of specialized inspectors is specifically provided for in Article 19 of Decree No. 26/2003/NĐ-CP.

2. Authority to impose fines of the Chairpersons of People's Committees at all levels

a) The authority to impose fines of the Chairpersons of People's Committees at the commune, district, and city levels shall be implemented in accordance with Clause 1 and 2 of Article 20 of Decree No. 26/2003/NĐ-CP. Provincial Plant Protection Bureaus under the central government, district Plant Protection Stations under the Provincial Plant Protection Bureau have the responsibility to assist  the People's Committees at the commune, district, and city levels in implementing administrative penalty procedures in this field in accordance with the laws on administrative violations and guiding forms of administrative penalties issued pursuant to Decision No. 61/2003/QĐ-BNN dated May 7, 2003 of the Ministry of Agriculture and Rural Development.

b) The authority to impose fines of the Chairperson of the People's Committee at the provincial level shall be implemented in accordance with Clause 3 of Article 20 of Decree No. 26/2003/NĐ-CP. Cases of administrative violations discovered and recorded by the Provincial Plant Protection Bureau that exceed the authority to impose fines of the Chief Inspector of the Provincial Plant Protection Bureau shall be processed by the Provincial Plant Protection Bureau to transfer the file to the People's Committee at the provincial level for the Chairman of the People's Committee at the provincial level to examine and issue a decision on imposing fines.

3. Determining the authority to impose administrative fines:

a) The authority to impose monetary fines is determined based on the maximum amount of the fine prescribed for each administrative violation.

b) The authority to apply the form of confiscation of evidence and means of administrative violations must be based on the actual value of the evidence and means to determine the authority.

c) In cases where the amount of the fine, the value of confiscated evidence or means, or one of the forms of punishment or remedial measures does not fall within the authority or exceeds the authority, the person handling the case must transfer the case to the person with the authority to impose fines.

IV. PROCEDURES FOR IMPOSING ADMINISTRATIVE FINES

1. Procedures and steps for imposing administrative fines in the field of plant protection and quarantine shall be implemented in accordance with the provisions of the Administrative Violations Handling Ordinance and the Government Decree detailing and guiding the implementation of certain articles of the Administrative Violations Handling Ordinance.

2. The management, collection, and use of fines for administrative violations in the field of plant protection and quarantine shall be implemented 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, Circular No. 9/1998/TT-BTC dated January 20, 1998 of the Ministry of Finance guiding the management and use of funds from anti-smuggling activities, and Circular No. 47/1998/TT-BTC dated April 9, 1998 of the Ministry of Finance guiding amendments and supplements to Point 3-a of Section III of Circular No. 09/1998/TT-BTC dated January 20, 1998 guiding the management and use of funds from anti-smuggling activities, and Circular No. 93/2000/TT-BTC dated September 15, 2000 of the Ministry of Finance guiding the management and use of funds in anti-counterfeiting work.

The system for using payment receipts for fines, managing, and using administrative violation fines will be regulated by the Government issuing a decree.

V. IMPLEMENTATION

1. The Director of the Plant Protection Department is responsible for assisting the Minister of Agriculture and Rural Development in directing, guiding, and inspecting Provincial Plant Protection Bureaus in organizing the implementation of inspection, supervision, and administrative penalty tasks in the field of plant protection and quarantine in accordance with the Administrative Violations Handling Ordinance 2002 and Decree No. 26/2003/NĐ-CP and this Circular, compiling the situation, and reporting to the Ministry as required.

2. Directors of Departments of Agriculture and Rural Development, Heads of Provincial Plant Protection Bureaus under the central government are responsible for assisting the People's Committees at the provincial level in organizing the implementation of Decree No. 26/2003/NĐ-CP and this Circular; monitoring, compiling, and reporting the situation of inspections, supervision, and administrative penalties of specialized plant protection and quarantine inspectors to the People's Committees at the provincial level and the Ministry of Agriculture and Rural Development.

During the implementation process, if there are difficulties, they should promptly propose to the Ministry for research and guidance, supplementation.

This Circular takes effect fifteen days after its publication in the Official Gazette and replaces Circular  No. 07/NN-BVTV/TT dated August 20, 1997 of the Ministry of Agriculture and Rural Development./.