Decree 115/2016/ND-CP amending Decree 163/2013/ND-CP on regulations for administrative sanctions in the fields of chemicals, fertilizers, and industrial explosives issued by the Government of Vietnam comes into effect from September 15, 2016.
Article table of contents
Definition of "chemicals" according to the Chemicals Law 2007 refers to elements, compounds, and mixtures of substances that are exploited or created by humans from natural materials and synthetic materials. Hazardous chemicals are those with one or more dangerous properties classified according to the principles of the Globally Harmonized System of Classification and Labelling of Chemicals (such as explosiveness, high corrosiveness, flammability, toxicity, etc.).
Decree 115/2016/ND-CP amends and supplements Decree 163/2013/ND-CP, which provides for administrative penalties in the fields of chemicals, fertilizers, and industrial explosives. Regarding violations pertaining to chemicals:
Double the penalties for not having a plan to prevent and respond to chemical incidents in production and business
The fine imposed for "failing to develop a plan or measures to prevent and respond to chemical incidents in production, business, and storage of hazardous chemicals as required by chemical law" ranges from 10,000,000 VND to 15,000,000 VND. This fine is doubled from the previous range of 5,000,000 VND to 8,000,000 VND in Decree 163.
Additionally, Clause 3 of this Article supplements the act of developing a chemical incident prevention and response plan or measures but not submitting it to the competent authority for approval or confirmation, with a fine ranging from 5,000,000 VND to 10,000,000 VND.
Reduction in penalties for not having a Certificate of Eligibility for Production and Business of Chemicals listed in the Conditional Chemicals List?
Violations concerning the Certificate of Eligibility for Production and Business of Chemicals listed in the Conditional Chemicals List are outlined in Article 9 of Decree 163, amended by Clause 6, Article 1 of Decree 115/2016/ND-CP. The amendments to Article 9 are as follows: “Apply the provisions of Article 8 Decree No. 185/2013/ND-CP dated November 15, 2013, of the Government of Vietnam, which stipulates administrative penalties in commercial activities, production, trading of fake goods, banned goods, and protection of consumer rights, to penalize violations concerning the Certificate of Eligibility for Production and Business of Chemicals listed in the Conditional Chemicals List.”
Thus, it can be understood that the new penalty for violations concerning the Certificate of Eligibility for Production and Business of Chemicals listed in the Conditional Chemicals List will be applied according to Decree 185/2013. Specified in Clause 4, Clause 5 of Decree 185/2013/ND-CP:
Acts of trading goods and services that require a certificate of eligibility for business or practice license without having the required certificates, carry a maximum fine of up to 10,000,000 VND, whereas in Decree 163 "a fine from 10,000,000 VND to 15,000,000 VND is imposed for producing, conducting business in hazardous chemicals listed in the Conditional Chemicals List (where the law requires a Certificate of Eligibility) without having a certificate from the competent authority as stipulated by chemical law.”
Additionally, Clause 4 of Decree 185 stipulates “continuing business activities after the competent state management agency has suspended business activities, revoked or withdrawn the certificate of eligibility for business or practice license,” carries a maximum fine of up to 15,000,000 VND, while the old fine in Decree 163 was 20,000,000 VND for this act.
Thus, the new penalty applied according to Decree 185/2013/ND-CP is reduced, which seems unreasonable as conducting chemical business without registration and oversight poses a significant risk to public health. Can this penalty adequately reflect the deterrent power of law? Similar to Article 292 of the Penal Code 2015, which is currently under debate, the reality is that the laws issued have multiple interpretations and require considerable clarification. Hence, on this point, it remains undetermined until Decree 115/2016/ND-CP officially takes effect on September 15.
