Nghị định 86/2012/NĐ-CP hướng dẫn Luật đo lường

DECREE

DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON METROLOGY

Pursuant to the Law on Government organization dated December 25^th 2001;

Pursuant to the Law on Metrology  dated November 11^th 2001;

At the proposal of the Minister of Science and Technology;

The Government promulgates a Decree on detailing and guiding the implementation of a number of articles of the Law on Metrology,

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details and guides the implementation of a number of articles of the Law on metrology on the legal units of measurement; the use of units of measurements, the identification of illegal gain, the metrological inspection; the budget for sampling for metrological inspection.

Article 2. Subjects of application

This Decree is applicable to organizations and individuals carrying out measurement in Vietnam.

Article 3. Interpretation of terms

The terms in this Decree are construed as follows:

1. The Metrological inspection is an periodic or irregular activity of competent State agencies to consider and assess the conformity of the measurement standards, measurement instruments, measurement methods, the quantity of pre-packed goods, the inspection, calibration, and test of measurement instruments and measurement methods, with the prescribed requirements.

2. A pre-packed unit is a collection including 01 package and the quantity of goods contained therein.

3. The average value of the quantity of pre-packed goods is the arithmetic mean of the quantity of goods contained in packed units, and calculated during the metrological inspection

Article 4. Application of International Agreements

1. When an International Agreement to which Vietnam is a signatory contradicts this Decree, such International Agreement shall apply.

2. The Ministries in charge must guide the use of specialized units of measurement in accordance with the International Agreements to which Vietnam is a signatory.

Chapter 2.

UNITS OF MEASUREMENT

Article 5. Legal units of measurement

1. Legal units of measurement in the international system of units include:

a) The base units of measurement specified in Clause 3 Article 8 of the Law on metrology;

b) The comprise the derived units of measurement in Annex I promulgated together with this Decree;

c) Decimal multiples and decimal submultiples of base units of measurement or derived units of measurement are established as prescribed in Annex II promulgated together with this Decree.

2. Legal units of measurement not belonging to the international system of units of measurement include:

a) The units of measurement in conformity with international practice in Annex III promulgated together with this Decree;

b) The specialized units of measurement, local traditional units of measurement specified in Annex IV promulgated together with this Decree;

c) The units of measurement are established by combining the units of measurement prescribed in Clause 1 this Article; from the units of measurement specified in Point a this Clause; or from the units of measurement prescribed in Clause 1 and Point a Clause 2 this Article.

Article 6. The use of units of measurement

1. It is required to use the legal units of measurement in the cases in Clause 1 Article 9 of the Law on metrology.

2. The expression of the measurement results and the quantity in legal units of measurement must comply with the provisions in Annex V promulgated together with this Decree.

3. Other units of measurement are used according to agreements, unless for the cases in Clause 1 this Article.

When settling disputes related to the use of some units of measurement different from the legal units of measurement, it is required to convert to the legal units of measurement.

4. The products and instruments for measuring, writing, and carving using other units of measurement that exist before this Decree takes effect may be used.

5. The measurements obtained by using the measurement instruments prescribed in Clause 4 in the cases prescribed in Clause 1 this Article must be converted as prescribed in Article 7 of this Decree, and expressed as prescribed in Clause 2 this Article.

Article 7. Converting other units of measurement into legal units of measurement

1. Some units of measurement are converted into the legal units of measurement in Annex VI promulgated together with this Decree.

2. Some other units of measurement not provided in Annex VI are converted as follows:

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

b) The units of measurement different from domestic traditional units of measurement are converted according to the current international system of units (SI) of the Bureau International des Poids et Mesures (BIPM).

3. When expressing the quantity, legal units of measurement must stand before other units of measurement. Other units of measurement must be placed in round brackets.

Chapter 3.

METHODS OF IDENTIFYING ILLEGAL GAINS BY VIOLATING MEASUREMENT LAWS

Article 8. Illegal gain

Illegal gain is the money collected by violating measurement laws in one of the following cases:

1. Illegal gain from the production, import, and sale of pre-packed goods of which the average value of quantity is lower than the permissible average value according to the technical requirements of measurement that they announced or provided by the Minister of Science and Technology;

2. Illegal gain from carrying measurement during the provision of goods and services that the variance of quantity exceeds the tolerance according to the technical requirements of measurement that they announced or provided by the Minister of Science and Technology;

Article 9. Determining the time of violating measurement laws

1. The period of violating measurement laws is the period from the time of starting to commit the violation until the time such violation is discovered by competent State agencies.

2. The time of starting to commit the violation of measurement laws to make illegal gain as prescribed in Clause 1 Article 8 of this Decree is the closest time with the time when competent State agencies discover the violation, and determined according to one of the following times:

a) The time of starting to sell the pre-packed goods written on the contract, financial invoice, or the customs declaration sheet with customs clearance certification;

b) The time of the latest metrological inspection carried out by competent agencies, regarding the quantity of the pre-packed goods.

3. The time of starting to commit the violation of measurement laws to make illegal gain prescribed in Clause 2 Article 8 of this Decree is the closest time with the time when competent State agencies discover the violation, and determined according to one of the following times:

a) The time of the latest metrological inspection carried out by competent agencies;.

b) The time of the latest inspection of the measurement instruments;

c) The time of the occurrence of the measurement variance recorded by a measurement instrument or by other technical, professional measures as prescribed by competent State agencies.

Article 10. Determination of the quantity of goods and services measured incorrectly

1. The quantitative variation of pre-packed goods equals the number of pre-packed units sold during the period of violating measurement laws, multiplied by the missing amount.

The missing amount is calculated by subtracting the average value from the permissible value.

2. The quantitative variation of goods and services equals the total amount of goods and services provided sold during the period of violating measurement laws, multiplied by the missing or excessive amount compared to the technical requirements of measurement.

The missing or abundant amount compared to the technical requirements of measurement is the variation detected during the inspection minus the tolerance of the corresponding measurement results.

Article 11. Prices of goods and services for calculating the illegal gain

1. Prices of pre-packed goods and other goods and services that have been sold and provided after measurement shall be determined in accordance with the following priority:

a) The actual prices, the posted prices, or the prices written on the contract, the sale invoice, or the import declaration;

b) The market prices of the goods and services where the violation is discovered according to the price list of the local financial agency;

c) The valuation done by the Valuation Council established by the agency or person competent to impose administrative penalties as prescribed by law provisions on handling administrative violations.

2. The price of pre-packed goods and other goods and services that have been sold and provided after measurement is the arithmetic mean of the price at the time of starting to commit the violation, and the price at the time of discovering the violation.

Article 12. Illegal gain

The illegal gain made by committing violations of measurement laws equal the quantitative variation of goods and services prescribed in Article 10 multiplied by the price determined as prescribed in Article 11 of this Decree.

Chapter 4.

METROLOGICAL INSPECTION

Article 13. The responsibility for metrological inspection

1. The Ministry of Science and Technology shall organize metrological inspection nationwide.

The Directorate for Standards, Metrology, and Quality shall assist the Ministry of Science and Technology in cooperating with relevant organizations in:

a) Carrying out periodic or irregular inspection of the calibration and test of measurement instruments and measurement standards;

b) Carrying out irregular inspection of the methods of measurement, measurement instruments, measurement standards, and the quantity of pre-packed goods at the request of competent agencies or when detecting violations.

2. Ministries, ministerial-level agencies, Governmental agencies, within their ambit of tasks and power, shall cooperate with the Ministry of Science and Technology to organize the metrological inspection.

3. Provincial People’s Committees are responsible for the local metrological inspection.

The Sub-Departments of Standards, Metrology, and Quality affiliated to the Service of Science and Technology shall assist provincial People’s Committees in cooperating with relevant local organizations in:

a) Carrying out periodic or irregular inspection of the measurement standards, measurement instruments, measurement methods, quantity of pre-packed goods;

b) Carrying out irregular inspection of the inspection, calibration, and test of measurement instruments and measurement methods at the request of competent agencies or when detecting violations.

4. District-level People’s Committees shall be in charge and cooperate with the Sub-Departments of Standards, Metrology, and Quality and relevant organizations in carrying out inspection and markets, shopping malls, wholesale places and retail places locally, with regard to the measurement methods, measurement instruments, and quantity of pre-packed goods.

5. Commune-level People’s Committees shall cooperate with the inspecting agencies prescribed in Clause 1, Clause 3 and Clause 4 this Article in carrying out local inspection of the measure methods, measurement instruments, and quantity of pre-packed goods.

6. Inspectors of science and technology, the Customs, the Police, the Market management, and other organizations, within ambit of their functions, tasks, powers, shall cooperate with the inspecting agencies prescribed in Clause 1, Clause 3, and Clause 4 this Article in carrying out metrological inspection.

Article 14. Inspectorate.

1. The head of the inspecting agency shall decide the establishment of the Inspectorate.

2. The Inspectorate comprises the Chief Inspector and other members. The number of the Inspectorate members depends on the inspection content and is decided by head of the inspecting agency.

3. The Chief Inspector must be a manager belonging to the inspecting agency. The Chief Inspector shall organize the performance of the Inspectorate: assign tasks to each member, be responsible for the inspection results; make inspection records or administrative violation records; pass and send the dossiers and records to the agency that make the decision on inspection, and send them to a competent agency or person to handle as prescribed.

4. Other members include

a) Technical officers, specialized in the discipline of measurement that needs inspection, shall inspect the measurement techniques;

b) The personnel of the inspecting agency, the persons assigned to perform specialized inspection; inspectors of science and technology, police officers, market management agents, the personnel of other organizations delegated to join the Inspectorate and perform duties according to the assignments.

5. The Inspectorate members are responsible for the inspection results, and work according to the assignment and law.

6. The Chief Inspector, the technical officers prescribed in Point a, and the personnel of the inspecting agency prescribed in Point b Clause 4 this Article must have a certificate of completing the course in metrological inspection held by the Directorate for Standards, Metrology, and Quality.

Article 15. Specialized inspection

1. Specialized inspection is the inspection using specialized instruments and means of transport to take samples before presenting the decision on inspection at the request of the State management agencies in charge of measurement.

2. The results of specialized inspection are the legal foundation for handling violations of measurement laws.

3. The equipment, management and use of specialized means of transport to carry out specialized inspection must comply with law provisions on the State budget and the management of State-owned property.

4. The budget for buying means of transport, equipment, and specialized instruments to carry out specialized inspection are arranged in the annual State budget expenditure estimates of Ministries, ministerial-level agencies, and provincial budget. The Ministers, Heads of ministerial-level agencies, and the Presidents of the provincial People’s Committees shall allocate budget for buying specialized instruments and means of transport for specialized inspection within the annual allocation of the State budget as prescribed by the Law on State budget.

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

Article 16. The procedures for metrological inspection

1. The metrological inspection is carried out under the following procedures:

a) Present the decision on inspection before the inspection. Take samples before presenting the decision on inspection if the present the decision on inspection allows the specialized inspection;

b) Carry out the inspection in accordance with the decision on inspection and the procedures for technical inspection of measuring applicable to each content;

c) Make the inspection record. If the act denotes administrative violations of measurements, the inspector of science and technology being a member of the Inspectorate, or the Chief Inspector shall make a record on the administrative violation and handle such violation, or send it to a competent agency or person to handle in accordance with law provisions on handling administrative violations. The form of the record on administrative violations of measurement shall be provided by the Minister of Science and Technology;

d) Handle the violations during the inspection as prescribed in Article 48 of the Law on metrology;

dd) Send reports to the agency that makes the decision on the metrological inspection

2. The Minister of Science and Technology shall specify this Article.

Article 17.  The cooperation in the Metrological inspection

1. The methods of Metrological inspection in cooperation include:

a) Sending officers to join the inspection and handling of violations of measurement laws;

b) Notifying and sending dossiers to competent persons and competent agencies for handling the violations of measurement laws;

c) Cooperating in inter-sectoral inspection as guided by superior agencies or at the request of competent agencies affiliated to the Ministries in charge.

2. The cooperation in inspecting the measurement instruments of group 2 and the quantity of imported pre-packed goods of group 2 must comply with the following provisions:

a) The inspecting agency shall lead and cooperate with the customs in inspecting the conformity with the provisions on approving forms applicable to imported measurement instruments, and the provisions on quantitative stamps applicable to imported pre-packed goods at the local border-gates;

b) If the inspection results shows that the imported pre-packed goods and measurement instruments are not conformable, the inspecting agency shall notify the importers and the customs. The importers must report the rectification to the customs, or re-export such measurement instruments and pre-packed goods. The inspecting agency shall carry out the inspection after the rectification and notify the customs.

c) The customs only grant the customs clearance if the measurement instruments and pre-packed goods are conformable.

3. The cooperation in inspecting measurement instruments, measurement standards, and the quantity of pre-packed goods at the place of production must comply with the following provisions;

a) The inspecting agency shall inspect the measurement instruments, measurement standards, and the quantity of pre-packed goods at the place of production, and handle them as prescribed;

b) When discovering that the measurement instrument, the measurement standard, or the quantity of the pre-packed goods at the place of production is not conformable with law provisions on metrology, or the manufacturer is not cooperative, the inspecting agency shall handle such case intra vires, and or transfer the dossier to a specialized inspecting agency or another competent agency to handle;

c) The market management agency must cooperate with the inspecting agency during the metrological inspection at the place of production. if it is discovered that the measurement instruments, measurement standards, or pre-packed goods are counterfeit, the inspecting agency shall notify send the dossier to the market management agency, the police or other competent agencies to handle;

d) The inspecting agency must be responsible for the notification and the dossiers sent to the agencies prescribed in Point b and Point c of Clause 3 this Article. The agency that receives the dossier must handle it as prescribed by law and notify the results to the inspecting agency.

4. The cooperation in inspecting the measurement methods, measurement instruments, measurement standards, and the quantity of pre-packed goods in circulation must comply with the following provisions:

a) The inspecting agency is shall inspect the measurement methods, measurement instruments, measurement standards, and the quantity of pre-packed goods in circulation, and handle the inspection results as prescribed in Article 48 of the Law on metrology;

b) When discovering the violations and wishing to cooperate with a agency competent to handle administrative violations, the inspecting agency shall send the dossier to that agency and request it the carry out the procedures for handling administrative violations as prescribed by law provisions on handling administrative violations. The agency competent to handle administrative violations must notify the inspecting agency.of the results for monitoring.

If the trader fails to comply with law provisions on metrology when measuring and when trading or using the measurement instruments, measurement standards, and quantity of pre-packed goods, or is not cooperative during the inspection, the inspecting agency shall request the police, the market management agency, or other competent agencies to handle as prescribed;

c) The market management agency shall cooperate with the inspecting agency and relevant agencies in the metrological inspection of the measurements, the measurement instruments, the measurement standards, and the quantity of pre-packed goods; inspect the violator’s adherence to the decision made by the inspecting agency or other agencies competent to inspect the measurements, the measurement instruments, the measurement standards, and the quantity of the pre-packed goods; and handle the violations of such decision;

d) If the measurement instrument, or the quantity of the imported pre-packed goods is not conformable with the law provisions on metrology, the inspecting agency shall handle the case and notify the local inspecting agency to enhance the inspection at the border-gate, or request competent State agencies to make decisions on suspending or terminating the import of that measurement instruments or pre-packed goods;

dd) If the measurement instrument, or the quantity of the pre-packed goods produced at home is not conformable with the law provisions on metrology, the inspecting agency shall examine and inspect the production, if the measurement instrument, the measurement standard, or the pre-packed goods is produced in another locality, the inspecting agency shall send written notification to the local inspecting agency to examine and inspect the production;

e) The inspecting agency must be responsible for the notification and the dossiers sent to the agencies prescribed in Point b, d and dd of Clause 4 this Article. The agency that receives the dossier must handle it as prescribed by law and notify the results to the inspecting agency.

Article 18. The budget for taking samples for metrological inspection

1. The budget for taking samples for metrological inspection includes:

a) The cost of purchasing samples;

b) The cost of services of inspection, calibration, and testing;

c) Other costs serving the inspection (excluding the expenses on the management and professional operation of inspecting agencies and the agencies in cooperation that have been allocated from their annual regular budget).

2. The rate of expenditure on metrological inspection must comply with the guidance from the Ministry of Finance on the management and use of budget for the State inspection of product quality.

3. The cost of sampling for metrological inspection shall be paid by the inspecting agency, and included in the annual expenditure budget estimate of the inspecting agency.

4. The organizations and individuals that violate law provisions on metrology must return the cost of sampling to the inspecting agency as prescribed by law.

5. The collection, payment, and use of sampling cost paid by the violating organizations and individuals must comply with law provisions on the management and use of budget for the State inspection of product quality.

Chapter 5.

IMPLEMENTATION PROVISIONS

Article 19. Effects

This Decree takes effect on December 15^th 2012.

Article 20. Implementation responsibilities

1. The Minister of Science and Technology shall guide and organize the implementation of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, Presidents of the provincial People’s Committees, and relevant organizations and individuals are responsible for implementing this Decree./.

ANNEX I

DERIVED UNITS OF MEASUREMENT

(Promulgated together with the Government's Decree No. 86/2012/NĐ-CP dated October 19^th 2012)