Chương IV: Nghị định 36/2020/NĐ-CP quy định về xử phạt vi phạm hành chính trong lĩnh vực tài nguyên nước và khoáng sản Thẩm quyền xử phạt, phân định thẩm quyền xử phạt vi phạm hành chính và áp dụng biện pháp khắc phục hậu quả trong lĩnh vực tài nguyên nước và khoáng sản

Chapter IV

POWER AND DISTRIBUTION OF POWER TO IMPOSE PENALTIES FOR ADMINISTRATIVE VIOLATIONS AND REMEDIAL MEASURES AGAINST ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON WATER RESOURCES AND MINERALS

Article 63. Power of natural resources and environment inspectors

1. Natural resources and environment inspectors and persons who are assigned to conduct natural resources and environment inspections in the performance of their duties are entitled to impose penalties for the violations specified in Chapters II and III hereof. To be specific:

a) Issue warnings;

b) Impose a maximum fine of VND 500,000;

c) Confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which value does not exceed VND 500,000;

d) Enforce the remedial measures mentioned in Points a, b, dd, g, h and m Clause 3 Article 4 hereof.

2. Chief Inspectors of provincial Departments of Natural Resources and Environment, chiefs of inspectorates established by Directors or Chief Inspectors of provincial Departments of Natural Resources and Environment are entitled to impose penalties for the violations specified in Chapters II and III hereof. To be specific:

a) Issue warnings;

b) Impose a maximum fine of VND 50,000,000;

c) Suspend licenses, practicing certificates, or suspend the operation;

d) Confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 50,000,000;

dd) Enforce the remedial measures mentioned in this Decree.

3. Chiefs of inspectorates established by the General Director of the General Department of Geology and Minerals of Vietnam are entitled to impose the violations specified in Chapter III hereof. To be specific:

a) Issue warnings;

b) Impose a maximum fine of VND 50,000,000;

c) Suspend licenses, practicing certificates, or suspend the operation;

d) Confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 50,000,000;

dd) Enforce the remedial measures mentioned in this Decree.

4. Chiefs of inspectorates established by the Minister of Natural Resources and Environment or Chief Inspector of the Ministry of Natural Resources and Environment are entitled to impose penalties for the violations specified in Chapters II and III hereof. To be specific:

a) Issue warnings;

b) Impose a maximum fine of VND 175,000,000 for administrative violations against regulations on water resources; VND 250,000,000 for administrative violations against regulations on minerals;

c) Suspend licenses, practicing certificates, or suspend the operation;

d) Confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed the fine specified in Point b of this Clause;

dd) Enforce the remedial measures mentioned in this Decree.

5. The Chief Inspector of the Ministry of Natural Resources and Environment is entitled to impose penalties for administrative violations against regulations water resources and minerals specified in Chapters II and III hereof, the General Director of the General Department of Geology and Minerals of Vietnam is entitled to impose penalties for administrative violations against regulations minerals specified in Chapter III hereof. To be specific:

a) Issue warnings;

b) Impose a maximum fine of VND 1,000,000,000;

c) Suspend licenses, practicing certificates, or suspend the operation;

d) Confiscate the exhibits and instrumentalities used for administrative violation commission;

dd) Enforce the remedial measures mentioned in this Decree.

Article 64. Power of Presidents of People’s Committees at all levels

Presidents of People’s Committees of provinces are entitled to impose penalties for the violations specified in Chapters II and III hereof. To be specific:

1. Presidents of communal People’s Committees are entitled to:

a) Issue warnings;

b) Impose a maximum fine of VND 5,000,000;

c) confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 5,000,000;

d) enforce the remedial measures mentioned in Points a, b, c, dd, g, h, k, m and o Clause 3 Article 4 hereof.

2. Presidents of district-level People’s Committees are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 50,000,000;

c) suspend licenses, practicing certificates, or suspend the operation;

d) confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 50,000,000;

dd) enforce the remedial measures mentioned in this Decree.

3. Presidents of provincial People’s Committees are entitled to:

a) issue warnings;

b) impose a fine up to the maximum fine specified in Clause 1 Article 4 hereof;

c) suspend licenses, practicing certificates, or suspend the operation;

d) confiscate the exhibits and instrumentalities used for administrative violation commission;

dd) enforce the remedial measures mentioned in this Decree.

Article 65. Power of industry and trade inspectors

Industry and trade inspectors are entitled to impose penalties for the violations specified in Articles 36, 38 and 39 and Section 2 Chapter III hereof. To be specific:

1. Industry and trade inspectors and the persons assigned as industry and trade inspectors in the performance of their duties are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 500,000;

c) enforce the remedial measures mentioned in Clause 6 Article 38 hereof.

2. Chief inspectors of provincial Departments of Industry and Trade; chiefs of inspectorates established by the Director of the Industrial Safety Techniques and Environment Agency or Directors or Chief Inspectors of provincial Departments of Industry and Trade shall are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 50,000,000;

c) suspend mining activities as prescribed in this Decree;

d) enforce the remedial measures mentioned in Clause 6 Article 38 hereof.

3. Chiefs of inspectorates established by the Minister of Industry and Trade or Chief Inspector of the Minister of Industry and Trade are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 250,000,000;

c) suspend mining activities as prescribed in this Decree;

d) enforce the remedial measures mentioned in Clause 6 Article 38 hereof.

4. The Chief Inspector of the Ministry of Industry and Trade and the Director of Industrial Safety Techniques and Environment Agency are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 1,000,000,000;

c) suspend licenses, practicing certificates, or suspend the operation;

d) enforce the remedial measures mentioned in Clause 6 Article 38 hereof.

Article 66. Power of People's Public Security Force

The People’s Public Security Force is entitled to impose penalties for the violations specified in Articles 8, 9, 10, 20, 21, 24, 25, 26, 27, 32, 33, 34, 35, 36, 37, 38, 39, 41, 43, 44, 45, 47, 48 and 54 hereof. To be specific:

1. People’s police officers on duty are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 500,000;

2. Senior officers of the persons mentioned in Clause 1 of this Article are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 1,500,000;

3. Chief of police stations of communes, chiefs of police stations at border checkpoints and export-processing zones are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 2,500,000;

c) confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed the fine specified in Point b of this Clause;

d) enforce the remedial measures mentioned in Points a, b, dd, g, h and m Clause 3 Article 4 hereof.

4. Chiefs of police stations of districts, chiefs of Traffic Police Divisions, chiefs of Internal Waterways Police Divisions, chiefs of Environmental Police Divisions; chiefs of Corruption, Economy and Smuggling-related Crime Investigation Divisions; chiefs of Economic Security Divisions are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 25,000,000;

c) suspend licenses, practicing certificates, or suspend the operation;

d) confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 25,000,000;

dd) enforce the remedial measures mentioned in Clause 3 Article 4 hereof.

5. Directors of provincial police authorities are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 50,000,000;

c) suspend licenses, practicing certificates, or suspend the operation;

d) confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 50,000,000;

dd) enforce the remedial measures mentioned in Clause 3 Article 4 hereof.

6. Director of Environmental Police Department; Director of Corruption, Economy and Smuggling-related Crime Investigation Department; Director of Economic Security Department; Director of Traffic Police Department are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 1,000,000,000;

c) suspend licenses, practicing certificates, or suspend the operation;

d) confiscate the exhibits and instrumentalities used for administrative violation commission;

dd) enforce the remedial measures mentioned in Clause 3 Article 4 hereof.

Article 67. Power of the Border Guard

The Border Guard is entitled to impose penalties for the violations specified in Articles 88, 9, 10, 20, 21, 24, 26, 27, 32, 34, 35, 37, 45, 47, 48 and Article 54 hereof in border regions under its management. To be specific:

1. The Border Guard officers on duty are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 500,000;

2. Senior officers of the persons mentioned in Clause 1 of this Article are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 2,500,000;

3. Captains of border-guard posts, commanders of border-guard flotillas and commanders of border guards at port checkpoints are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 25,000,000;

c) confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 25,000,000;

d) enforce the remedial measures mentioned in Clause 3 Article 4 hereof.

4. Commanders of provincial border guards and commanders of coastal guard fleets affiliated to the Border Guard High Command are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 1,000,000,000;

c) confiscate the exhibits and instrumentalities used for administrative violation commission;

d) enforce the remedial measures mentioned in Clause 3 Article 4 hereof.

Article 68. Power of the Coast Guard

The Coast Guard is entitled to impose penalties for the violations specified in Articles 8, 9, 10, 12, 20, 21, 23, 24, 27, 29, 31, 34, 35, 36, 38, 39, 40, 45, 47, 48, 49 and 54 in regions under its management. To be specific:

1. Coastguard officers on duty are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 1,500,000;

2. Coastguard team leaders are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 5,000,000;

3. Coastguard squad leaders and captains of coastguard stations are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 10,000,000;

d) enforce the remedial measures mentioned in Points a, b, dd, g, h and m Clause 3 Article 4 hereof.

4. Commanders of coastguard platoons are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 25,000,000;

c) confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 25,000,000;

d) enforce the remedial measures mentioned in Clause 3 Article 4 hereof.

5. Commanders in chief of coastguard squadrons are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 50,000,000;

c) confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 50,000,000;

d) enforce the remedial measures mentioned in Clause 3 Article 4 hereof.

6. Commanders of regional coastguard command centers are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 100,000,000;

c) confiscate the exhibits and instrumentalities used for administrative violation commission, the value of which does not exceed VND 100,000,000;

d) enforce the remedial measures mentioned in Clause 3 Article 4 hereof.

7. Commander of the Coast Guard is entitled to:

a) issue warnings;

b) impose a maximum fine of VND 1,000,000,000;

c) suspend licenses, practicing certificates, or suspend the operation;

d) confiscate the exhibits and instrumentalities used for administrative violation commission;

dd) enforce the remedial measures mentioned in Clause 3 Article 4 hereof.

Article 69. The power to record administrative violations

1. Records on administrative violations against regulations on water resources and minerals shall be made as prescribed in Article 58 of the Law on Penalties for Administrative Violations and Government’s Decree on guidelines for implementation of the Law on Penalties for Administrative Violations.

2. The persons below are entitled to make records the administrative violations specified in Chapters II and III hereof:

a) Persons on duty that have the power to impose penalties for administrative violations against regulations on water resources and minerals;

b) Inspection officials on duty of the Ministry of Natural Resources and Environment, Department of Water Resources Management, General Department of Geology and Minerals of Vietnam, provincial Departments of Natural Resources and Environment and district-level Departments of Natural Resources and Environment affiliated to district-level People’s Committees.

3. The persons that have the power to make records on violations prescribed in Clause 2 of this Article are entitled to make records on administrative violations within their jurisdiction using the prescribed forms and shall assume responsibility for such administrative violation records.

4. Only one record is made for an administrative violation.

If the violating entity whose administrative violation has been recorded fails to terminate acts of violation upon the order of the person having power to impose administrative penalty as prescribed, the person having power to impose administrative penalty shall, when making decision on imposition of penalty for such violation, apply aggravating circumstances as prescribed in Point i Clause 1 Article 10 of the Law on Penalties for Administrative Violations.

5. If an entity commits multiple acts of violation in the same case of violation or repeats acts of violation, all acts of violation or times of committing violation must be recorded in the administrative violation records.

Article 70. Suspension of licenses, practicing certificates and operation;

1. Licenses, practicing certificates or operation shall be suspended in compliance with regulations laid down in Chapter II and Chapter III herein.

2. The duration of suspension of a license or practicing certificate or operation as a penalty for a violation specified in this Decree is the average level of the bracket. The minimum level shall apply if there is a mitigating factor; the maximum level shall apply if there is an aggravating factor.

3. Beginning date of the suspension period:

a) The suspension period shall begin on the effective date of the decision on penalty imposition if the person imposing the penalty is able to confiscate the violator’s license or practicing certificate on such day;

b) If the person imposing the penalty is not able to confiscate the violator’s license or practicing certificate when the decision on penalty imposition is issued, the decision must specify that the beginning date of the suspension period is the day on which the violator submits the license or practicing certificate to the person imposing the penalty;

c) When confiscating and returning the license or practicing certificate as prescribed in Point b of this Clause, the person imposing the penalty shall make records and retain documents about the penalty.

4. During the suspension period, if the violator still keeps doing the activities in the license or practicing certificate, such violator shall incur a penalty for operating without a license or practicing certificate.

5. During the suspension period, the Department of Natural Resources and Environment of the province or People’s Committee of the commune where water resources and minerals activities are conducted shall supervise compliance with suspension decision by violating entities.