DECREE NO. 86/2012/ND-CP PROVIDING DETAILS AND GUIDELINES FOR THE IMPLEMENTATION OF CERTAIN PROVISIONS OF THE LAW ON MEASUREMENT

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree provides detailed regulations and guidance on implementing certain provisions of the Law on Measurement concerning legal measurement units; using measurement units; methods for determining unfair gains from violations of laws on measurement; state inspection of measurement; funding for sampling in state inspection of measurement.

Article 2. Applicability

This Decree applies to organizations and individuals participating in measurement activities in Vietnam.

Article 3. Explanation of Terms

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

1. State inspection of measurement is a regular activity carried out according to plans or at random by competent state authorities to examine and evaluate the compliance of measurement standards, measuring instruments, measurement methods, quantities of prepackaged goods, calibration, verification, and testing of measuring instruments and measurement standards with prescribed requirements.

2. A unit of prepackaged goods consists of one (01) package and the quantity of goods contained within that package.

3. The average value of the quantity of prepackaged goods is the arithmetic mean of the quantities of goods contained in each unit of prepackaged goods and is determined during state inspection of measurement.

Article 4. Application of International Treaties

1. In cases where international treaties to which Vietnam is a party have different provisions from those set forth in this Decree, the provisions of such international treaties shall apply.

2. Ministries managing sectors and fields within their scope of authority and responsibilities shall guide the use of specialized measurement units in accordance with the provisions of international treaties to which Vietnam is a party.

Chapter II

MEASUREMENT UNITS

Article 5. Legal Measurement Units

1. Legal measurement units belonging to the International System of Units include:

a) Basic units as specified in Clause 3, Article 8 of the Law on Measurement;

b) Derived units comprising units specified in Appendix I attached hereto;

c) Decimal multiples and submultiples of basic units or derived units established in accordance with the provisions of Appendix II attached hereto.

2. Legal measurement units not belonging to the International System of Units include:

a) Units of measurement according to international practice as specified in Appendix III attached hereto;

b) Specialized units of measurement, units of measurement according to domestic customs as specified in Appendix IV attached hereto;

c) Units of measurement established based on combinations of units of measurement specified in Clause 1 of this Article; from units of measurement specified in Point a of this Clause; from units of measurement specified in Clause 1 of this Article and Point a of Clause 2 of this Article.

Article 6. Use of Measurement Units

1. Legal measurement units must be used in the cases specified in Clause 1, Article 9 of the Law on Measurement.

2. The presentation of measurement results and the expression of values of quantities in terms of legal measurement units must comply with the provisions of Appendix V attached hereto.

3. Other units of measurement may be used by agreement, except in the cases specified in Clause 1 of this Article.

In cases where disputes arise related to the use of other units of measurement instead of legal measurement units, they must be converted to legal measurement units.

4. Products, measuring instruments marked or engraved in other units of measurement existing before the effective date of this Decree may continue to be used.

5. Measurement results directly obtained by measuring instruments specified in Clause 4 if used for the cases specified in Clause 1 of this Article must be converted in accordance with the provisions of Article 7 of this Decree and presented in accordance with the provisions of Clause 2 of this Article.

Article 7. Conversion of other measurement units to legal measurement units

1. The conversion of some other measurement units to legal measurement units is specified in Appendix VI attached to this Decree.

2. The conversion of other measurement units not specified in Appendix VI of this Decree shall be regulated as follows:

a) The conversion of measurement units according to domestic customs shall be guided by the Minister of Science and Technology when requested.

b) The conversion of measurement units that are not based on domestic customs shall be taken from the current document "International System of Units" (SI) of the International Bureau of Weights and Measures (BIPM).

3. When presenting measured quantity values, the legal measurement unit value must be presented first, followed by the other measurement unit value in parentheses.

Chapter III

DETERMINATION OF ILLEGAL GAINDUE TO VIOLATIONS OF MEASUREMENT LAWS

Article 8. Illegal Gain

Illegal gain is the amount of money obtained due to violations of measurement laws in one of the following cases:

1. Illegal gain from producing, importing, selling pre-packaged goods where the quantity of such pre-packaged goods has an average value lower than the permitted average value according to technical measurement requirements published by organizations or individuals or stipulated by the Minister of Science and Technology.

2. Illegal gain from performing measurements during buying, selling goods, providing services where the quantity of such goods or services has a deviation exceeding the permissible error limit according to technical measurement requirements for such measurements published by organizations or individuals or stipulated by the Minister of Science and Technology.

Article 9. Determination of Time of Violation of Measurement Laws

1. The time of violation of measurement laws is the period from the start of the violation act until the competent state authority discovers such violation act of organizations or individuals.

2. The starting point of the violation of measurement laws for illegal gain as prescribed in Clause 1, Article 8 of this Decree is the nearest point in time to the discovery of the violation act by the competent state authority and is determined according to one of the following points in time:

a) The starting point of selling pre-packaged goods indicated on the contract, financial invoice, customs declaration with clearance confirmation;

b) The most recent state inspection and supervision on measurement quantity of pre-packaged goods conducted by the competent authority, organization, or individual prior to the discovery of the violation.

3. The starting point of the violation act of measurement laws for illegal gain as prescribed in Clause 2, Article 8 of this Decree is the nearest point in time to the discovery of the violation act by the competent state authority and is determined according to one of the following points in time:

a) The most recent state inspection and supervision on measurement performed by the competent authority, organization, or individual prior to the discovery of the violation.

b) The most recent calibration prior to the discovery of the violation for the measuring instrument used to perform the measurement.

c) The point in time when the measurement error occurred recorded by the measuring instrument used to perform the measurement or by other technical or operational methods according to the regulations of the competent state authority.

Article 10. Determination of Quantity of Goods or Services with Measurement Deviation

1. The quantity of pre-packaged goods with measurement deviation is the total number of pre-packaged goods sold during the period of violation of measurement laws multiplied by the shortage caused by the violation.

The shortage caused by the violation is calculated as the permitted value minus the average value.

2. The quantity of goods or services with measurement deviation when performing measurements is calculated as the total quantity of goods or services bought, sold, or provided during the period of violation of measurement laws multiplied by the excess or shortage compared to the technical measurement requirements.

The excess or shortage compared to the technical measurement requirements is the measured deviation value minus the permissible error limit of the corresponding measurement result.

Article 11. Price of goods and services for calculating unlawful gains

1. The price of pre-packaged goods and other goods and services that have been purchased, sold, or supplied through measurement shall be determined in the following order of priority:

a) Actual transaction price, listed price, or price recorded on the purchase contract or sales invoice or import declaration;

b) Market price for goods and services at the location where the violation was discovered, as reported by local financial authorities;

c) Appraisal price set by the Appraisal Council established by the administrative penalty authority according to the law on handling administrative violations.

2. The price of pre-packaged goods and other goods and services that have been purchased, sold, or supplied through measurement shall be the average of the price at the time the violation began and the price at the time the violation was discovered.

Article 12. Amount of Unlawful Gains

The amount of unlawful gains resulting from violations of the law on measurement shall be calculated by multiplying the quantity of goods and services that are inaccurate due to measurement, as specified in Article 10, with the price determined according to Article 11 of this Decree.

Chapter IV

STATE CONTROL ON MEASUREMENT

Article 13. State Control Responsibilities on Measurement

1. The Ministry of Science and Technology is responsible for organizing state control on measurement throughout the country.

The National Standardization, Metrology and Quality Agency assists the Ministry of Science and Technology in leading and coordinating with relevant agencies and organizations to implement:

a) Regular or spot checks on calibration, verification, and testing activities of measuring instruments and metrological standards;

b) Spot checks on measurements, measuring instruments, metrological standards, and quantities of pre-packaged goods when requested by authorized agencies or when violations are detected.

2. Ministries, ministerial-level agencies, and government agencies within their respective duties and powers are responsible for coordinating with the Ministry of Science and Technology to organize state control on measurement in their respective sectors and fields under their assigned management responsibilities.

3. Provincial People's Committees are responsible for state control on measurement within their jurisdictions.

The Provincial Standardization, Metrology and Quality Control Agency under the Department of Science and Technology assists the Provincial People's Committee in leading and coordinating with relevant agencies and organizations to implement control within their jurisdictions as follows:

a) Regular or spot checks on metrological standards, measuring instruments, measurements, and quantities of pre-packaged goods;

b) Spot checks on calibration, verification, and testing activities of measuring instruments and metrological standards when requested by authorized agencies or when violations are detected.

4. District People's Committees are responsible for leading and coordinating with the Provincial Standardization, Metrology and Quality Control Agency and relevant agencies and organizations to conduct inspections at markets, shopping centers, wholesale and retail points within their jurisdiction regarding measurements, measuring instruments, and quantities of pre-packaged goods.

5. Commune People's Committees are responsible for coordinating with the agencies implementing inspections as stipulated in Clause 1, Clause 3, and Clause 4 of this Article to conduct inspections within their jurisdiction regarding measurements, measuring instruments, and quantities of pre-packaged goods.

6. Science and Technology Inspectors, Customs, Police, Market Management Agencies, and other agencies and organizations within their functions, duties, and powers are responsible for coordinating with the agencies implementing inspections as stipulated in Clause 1, Clause 3, and Clause 4 of this Article to conduct state control on measurement.

Article 14. Inspection Team

1. The inspection team shall be established by the head of the inspecting agency.

2. The composition of the inspection team includes the Team Leader and other members. The number of members in the inspection team depends on the content of the inspection and shall be decided by the head of the inspecting agency.

3. The Team Leader is a management officer from the inspecting agency. The Team Leader is responsible for organizing and implementing the tasks of the team: assigning specific responsibilities to each member; being accountable for the results of the inspection; organizing the preparation of the inspection record or administrative violation record according to regulations; reviewing files and records to submit to the agency issuing the inspection decision, transferring them to the competent authority for handling according to regulations.

4. Other Members

a) Technical officers with expertise suitable for the field of measurement being inspected and tasked with technical measurement inspections;

b) Personnel from the inspecting agency, individuals assigned with specialized inspection tasks, science and technology inspectors, police officers, market management personnel, and representatives from other agencies or organizations appointed to join the inspection team and perform their assigned tasks.

5. Members of the inspection team are responsible for the results of the inspection and handling according to their assignments and the provisions of the law.

6. The Team Leader, technical staff specified in Point a and personnel from the inspecting agency specified in Point b of Clause 4 of this Article must have certificates of completion of state measurement inspection vocational training courses organized by the General Department of Standardization, Measurement, and Quality Control.

Article 15. Specialized Inspection

1. Specialized inspection is a type of inspection that uses transportation means, equipment, and specialized technical tools to take samples for inspection before presenting the inspection decision at the request of the state management agency for measurement.

2. The results of specialized inspection serve as a legal basis for handling violations of measurement laws by organizations and individuals.

3. The provision, management, and use of specialized transportation means for conducting specialized inspections shall be carried out in accordance with the regulations on state budget law and state asset management law.

4. The funding for equipping transportation means, equipment, and specialized technical tools for conducting specialized inspections shall be allocated in the annual state budget expenditure plan of Ministries, ministerial-level agencies, and provincial and centrally-administered city budgets. The Minister, head of a ministerial-level agency, and Chairman of the People's Committee of provinces and centrally-administered cities are responsible for allocating funds for equipping transportation means, equipment, and specialized technical tools for conducting specialized inspections within the annual state budget expenditure plan according to the State Budget Law.

5. The Ministry of Transport and the Ministry of Public Security shall cooperate with the Ministry of Science and Technology to guide necessary measures for conducting specialized inspections.

Article 16. Procedure and Formalities for State Measurement Inspection

1. State measurement inspection shall be conducted according to the following procedure and formalities:

a) Present the inspection decision before commencing the inspection. In cases where the inspection decision permits specialized inspection, sample collection for inspection shall be conducted before presenting the inspection decision;

b) Conduct the inspection according to the content of the inspection decision and the technical measurement inspection procedures for each specific content;

c) Prepare the inspection record. If an act indicating administrative violation of measurement is discovered, the science and technology inspector who is a member of the inspection team or the Team Leader shall prepare the administrative violation record and handle it or transfer it to the competent authority for handling according to the Administrative Violation Handling Law. The model of the administrative violation record for measurement is prescribed by the Minister of Science and Technology;

d) Handle violations during the inspection process according to Article 48 of the Measurement Law;

đ) Report to the agency issuing the state measurement inspection decision.

2. The Minister of Science and Technology shall provide detailed guidance on this Article.

Article 17. Coordination in State Inspection on Measurement

1. Forms of coordination in State Inspection on Measurement include:

a) Dispatching officers to participate in inspection activities and handling violations of laws on measurement;

b) Notifying and transferring files to competent authorities for handling violations of laws on measurement;

c) Taking the lead and coordinating in inter-sector inspections according to directives from higher-level authorities or at the request of competent authorities under the Ministry managing the sector, field, or locality.

2. The coordination in inspecting measuring instruments group 2 and quantities of pre-packed goods group 2 imported shall be carried out as follows:

a) The leading inspection authority coordinates with customs authorities to inspect compliance with approval model regulations for imported measuring instruments and quantity marking regulations for imported pre-packed goods at border gates within their jurisdiction;

b) In case the inspection results confirm that imported measuring instruments or pre-packed goods do not comply with regulations, the inspection authority will notify the importing organization or individual and the customs authority. The importing organization or individual is responsible for reporting to the customs authority on measures taken to rectify the violation or re-export the measuring instruments or pre-packed goods. If the measures are implemented, the inspection authority will take the lead in post-rectification inspections and notify the customs authority;

c) Customs authorities will only allow clearance when imported measuring instruments and pre-packed goods comply with regulations.

3. The coordination in inspecting measuring instruments, measurement standards, and quantities of pre-packed goods at production sites shall be carried out as follows:

a) The inspection authority conducts inspections of measuring instruments, measurement standards, and quantities of pre-packed goods at production sites and handles them according to regulations;

b) When discovering that measuring instruments, measurement standards, or quantities of pre-packed goods at production sites do not meet legal requirements on measurement or that organizations or individuals producing them do not cooperate in inspections, the inspection authority will handle the situation within its competence or notify and transfer files to specialized inspection authorities or other competent authorities for handling according to regulations;

c) Market management authorities have the responsibility to coordinate with the inspection authority during state inspections on measurement at production facilities. In case counterfeit measuring instruments, measurement standards, or pre-packed goods are discovered, the inspection authority will notify and transfer files to market management authorities, police authorities, or other competent authorities for handling;

d) The inspection authority must bear responsibility for the contents of notifications and files transferred to the authorities specified in Points b and c of Clause 3 of this Article. The authority receiving the files for handling must process them according to the law and report back the handling results to the inspection authority;

4. The coordination in inspecting measurement acts, measuring instruments, measurement standards, and quantities of pre-packed goods in circulation, trade, and use shall be carried out as follows:

a) The inspection authority leads the inspection of measurement acts, measuring instruments, measurement standards, and quantities of pre-packed goods in circulation, trade, and use, and processes the inspection results according to Article 48 of the Law on Measurement;

b) When discovering violations requiring coordination with competent authorities to handle administrative violations, the inspection authority transfers files and recommends the competent authority to proceed with administrative violation handling procedures according to the law on administrative violation handling. The competent authority handling administrative violations has the responsibility to inform the inspection authority about the handling and results thereof for monitoring;

In case organizations or individuals fail to comply with legal provisions on measurement when conducting measurement acts, circulating, trading, or using measuring instruments, measurement standards, or quantities of pre-packed goods, or refuse to cooperate in inspections, the inspection authority may propose the police authority, market management authority, or other competent authority to handle the situation according to regulations;

c) Market management authorities coordinate with the inspection authority and related authorities when required in state inspections on measurement for measurement acts, measuring instruments, measurement standards, and quantities of pre-packed goods; take the lead in supervising organizations or individuals who violate decisions made by the inspection authority or other competent authorities regarding measurement acts, measuring instruments, measurement standards, or quantities of pre-packed goods; handle violations of such decisions;

d) In case imported measuring instruments or quantities of pre-packed goods do not comply with legal provisions on measurement, the inspection authority will handle the situation within its competence and has the responsibility to notify the local inspection authority where the import takes place to strengthen inspections at border gates or recommend the competent state authority to issue a decision to temporarily suspend or stop the importation of such measuring instruments or pre-packed goods;

đ) In case domestically produced measuring instruments, measurement standards, or quantities of pre-packed goods do not comply with legal provisions on measurement, the inspection authority will handle the situation within its competence, examine, and inspect production; if these measuring instruments, measurement standards, or pre-packed goods are produced in another locality, it will notify in writing the inspection authority in the production locality to examine and inspect production;

e) The inspection authority must bear responsibility for the contents of notifications and files sent to the authorities specified in Points b, d, and đ of Clause 4 of this Article. The authority receiving the files for handling must process them according to the law and report back the handling results to the inspection authority.

Article 18. State inspection sampling costs for measurement

1. State inspection sampling costs for measurement include:

a) Sample purchase costs;

b) Service calibration, verification, testing rental costs;

c) Other costs that must be purchased and rented externally to serve inspection (excluding expenses for administrative operations and professional activities of inspection agencies and coordinating inspection agencies already allocated from annual operating budgets of units).

2. The budget framework for state inspection costs for measurement shall be applied according to the guidelines of the Ministry of Finance on managing and using funds for state inspection activities related to product quality.

3. State inspection sampling costs for measurement shall be paid by the inspection agency and allocated within the annual budget estimate of the inspection agency.

4. In cases where organizations or individuals are found to violate laws on measurement, those violating organizations or individuals must reimburse the state inspection sampling costs to the inspection agency in accordance with the law.

5. The collection, submission, management, and use of the reimbursement funds for state inspection sampling costs by violating organizations or individuals shall be implemented in accordance with the regulations on managing and using funds for state inspection activities related to product quality.

Chapter V

IMPLEMENTING PROVISIONS

Article 19. Effective Date

This Decree takes effect from December 15, 2012.

Article 20. Responsibility for Implementation

1. The Minister of Science and Technology is responsible for guiding and organizing the implementation of this Decree.

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