DECREE No. 98/2011/ND-CP OF OCTORBER 26, 2011: Amending and supplementing a number of articles of decrees on agriculture

Thursday 12/01/2011 - 10:31

THE GOVERNMENT

Decree No. 98/2011/ND-CP of October 26, 2011, amending and supplementing a number of articles of decrees on agriculture

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

At the proposal of the Minister of Agriculture and Rural Development,

DECREES:

Article 1. To amend and supplement a number of articles of the Government’s Decree No. 88/2010/ND-CP of August 16, 2010, detailing and guiding a number of articles of the Law on Intellectual Property and the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property regarding rights to plant varieties

1. To amend and supplement Clause 1, Article 16 as follows:

“Article 16. Conditions on designated assaying organizations and individuals

1. An organization or individual designated to conduct assays must fully meet the following conditions:

a/ Having the function of assaying or researching into, selecting and creating plant varieties;

b/ Having a location and land area suitable for conducting assay tests to meet assay requirements for plant species designated for assay;

c/ Having special-use equipment or having signed a contract with another organization or individual to analyze and assess indicators to meet assay requirements for plant species designated for assay;

d/ Having at least one (1) technician who possesses a university degree in cultivation or plant varieties or has directly engaged in technical assays for at least two (2) years;

e/ Having a collection of samples of widely known plant varieties of the species designated for assay.”

2. To amend and supplement Article 26 as follows:

“Article 26. Assignment of rights to protected plant varieties

1. After finalizing a contract on the assignment of rights to a plant variety under law, the assignor shall submit one (1) set of the dossier of registration for the assignment contract to the plant variety protection agency and pay a fee under regulations.

2. A dossier of registration for a contract on the assignment of rights to a plant variety comprises:

a/ A registration declaration, made according to a form issued by the Ministry of Agriculture and Rural Development;

b/ One (1) contract (the original or a certified copy or a copy and the original contract for comparison) in Vietnamese or translated into Vietnamese, with every page signed by the involved parties for certification or every two adjoining pages appended with an overlapping seal;

c/ The plant variety protection deed (the original or a certified copy or a copy and the original for comparison);

d/ Co-owners’ written consent, for plant varieties under co-ownership (the original);

e/ Copies of charge and fee receipts or a facsimile document proving the transfer of money to the account of the plant variety protection agency;

f/ For plant varieties created with state budget funds, documents evidencing of the compliance with Clause 1, Article 27 of Decree No. 88/2010/ND-CP is required.

3. In case the dossier is incomplete, within five (5) working days after receiving it, the plant variety protection agency shall notify such to the organization or individual for supplementation.

4. Within thirty (30) working days after receiving a complete dossier as required, the plant variety protection agency shall examine the dossier and submit it to the Ministry of Agriculture and Rural Development to grant a certificate of registration for the contract on the assignment of rights to a plant variety and a protection deed to the new holder and notify its acceptance of the protection registration application bearing the new holder’s name (in case of assignment of protection registration applications).”

3. To amend and supplement Article 31 as follows:

“Article 31. Procedures for compulsory licensing of protected plant varieties under decisions

1. Organizations and individuals wishing to use plant varieties may submit dossiers of registration for compulsory licensing of plant varieties under decisions as specified at Point a, Clause 1, Article 195 of the Law on Intellectual Property. Organizations and individuals that fail to reach agreement on the use of plant varieties or meet with obstacles in competition may submit dossiers of registration for compulsory licensing under decisions in the cases specified at Points b and c, Clause 1, Article 195 of the Law on Intellectual Property.

2. A dossier for licensing of a plant variety comprises:

a/ A declaration of the request for compulsory licensing of a plant variety, made according to a form issued by the Ministry of Agriculture and Rural Development, which must indicate the scope and time of the compulsory licensing;

b/ A copy of the plant variety production and business registration certificate;

c/ A report on the financial capacity to pay compensations to the licensor under regulations;

d/ Documents evidencing that the request for compulsory licensing of the plant variety has plausible grounds as prescribed by law, for the cases specified at Points b and c, Clause 1, Article 195 of the Law on Intellectual Property;

e/ A power of attorney, for dossiers submitted through a representative;

f/ A copy of the fee receipt or a facsimile document evidencing that the transfer of money to the account of the plant variety protection agency.

3. The order and procedures for compulsory licensing of a protected plant variety under Point a, Clause 1, Article 195 of the Law on Intellectual Property:

a/ The plant variety protection agency shall receive one (1) dossier set specified in Clause 2 of this Article and check the completeness of the dossier within five (5) working days after receiving it. If the dossier is incomplete, the plant variety protection agency shall notify such to the organization or individual for supplementation;

b/ Within fifteen (15) working days after receiving a complete dossier as required, the Ministry of Agriculture and Rural Development shall issue a decision on compulsory licensing of the plant variety and notify its decision to the licensor and licensee for compliance.

4. The order and procedures for compulsory licensing of a protected plant variety under Points b and c, Clause 1, Article 195 of the Law on Intellectual Property:

b/ Within fifteen (15) working days after receiving a complete dossier as required, the Ministry of Agriculture and Rural Development shall notify the holder of the monopolistic right to use the plant variety of the request for compulsory licensing of the plant variety;

c/ Within thirty (30) working days after the issuance of the notice, the holder of the monopolistic right to use the plant variety shall give a written reply;

d/ If the holder of the monopolistic right to use the plant variety disagrees with the request for compulsory licensing of the plant variety, within fifteen (15) working days, the Ministry of Agriculture and Rural Development shall issue a written reply;

e/ The Ministry of Agriculture and Rural Development shall issue a decision on compulsory licensing of the plant variety if the request for compulsory licensing is compliant with regulations and shall notify its decision to the licensor and licensee for compliance;

f/ If the request for issuance of a decision on compulsory of a plant variety does not have any plausible grounds as specified at Points b and c, Clause 1, Article 195 of the Law on Intellectual Property, the Ministry of Agriculture and Rural Development shall issue a notice of refusal clearly stating the reason.”

Article 2. To amend and supplement a number of articles of the Government’s Decree No. 02/2007/ND-CP of January 5, 2007, on plant quarantine

1. To amend and supplement Clause 5, Article 26 as follows:

“Article 26. Conditions for fumigation

5. Having a working place and equipment and chemical storehouse under regulations.”

2. To amend and supplement Clause 1, Article 27 as follows:

“Article 27. Conditions for the grant of fumigation practice certificates

1. Having professional qualifications of university or higher degree in one (1) of majors on chemicals, plant protection, cultivation or agronomy.”

Article 3. To amend and supplement Clause 1, Article 17 of the Regulation on management of plant protection drugs issued together with the Government’s Decree No. 58/2002/ND-CP of June 3, 2002

To amend and supplement Clause 1, Article 17 as follows:

“Article 17. Conditions for the grant of professional practice certificates to plant protection drug traders

1. Holding diplomas of intermediate or higher degree in one (1) of majors on cultivation, plant protection, biology or agricultural pedagogy, or a certificate of completion of professional courses on plant protection drugs, granted by a provincial-level Plant Protection Drug Department.”

Article 4. To amend and supplement Clause 1, Article 1 of the Government’s Decree No. 119/2008/ND-CP of November 28, 2008, amending and supplementing a number of articles of Decree No. 33/2005/ND-CP of March 15, 2005, detailing a number of articles of the Ordinance on Animal Health

To amend and supplement Clause 1, Article 1 as follows:

“Article 1. To amend and supplement a number of articles of the Government’s Decree No. 33/2005/ND-CP of March 15, 2005, detailing a number of articles of the Ordinance on Animal Health, as follows:

1. To amend and supplement Article 30 as follows:

“Article 30. Declaration of quarantine of terrestrial animals and products thereof

1. Before domestically transporting and circulating animals or animal products on the List of animals and animal products subject to quarantine, goods owners shall declare quarantine and send one (1) set of quarantine dossier made under regulations to the provincial- or district-level state management agency in charge of animal health. The quarantine declaration is specified as follows:

a/ Making declaration at least two (2) working days in advance, if compulsory preventive measures have been applied to animals under regulations and animals remain immune; at least between fifteen (15) and thirty (30) working days in advance, if compulsory preventive measures have not yet been applied to animals under regulations or animals are no longer immune;

b/ Making declaration at least two (2) working days in advance, if veterinary hygiene indicators have been tested for animal products or animal products are sent by post; seven (7) working days, if veterinary hygiene indicators have not yet been tested for animal products.

Within one (1) working day after receiving a complete dossier as required, the dossier-receiving agency shall certify the quarantine declaration and notify the place and time of quarantine.

Within one (1) working day after animals or animal products are brought to the specified place, the dossier-receiving agency shall conduct quarantine.

2. Goods owners wishing to export, import, temporarily import for re-export, temporarily export for re-import, transfer from/to border gate or transit via the Vietnamese territory animals or animal products on the List of animals and animal products subject to quarantine or alien animals or animal products which are not found in Vietnam, shall register for quarantine and send one (1) set of quarantine dossier made under regulations to a competent animal quarantine agency under regulations of the Ministry of Agriculture and Rural Development.

Within five (5) working days after receiving a complete dossier as required, the animal quarantine agency shall give a written reply to the goods owner, giving guidance on quarantine requirements and concurrently send a notice thereof to concerned animal quarantine agencies for coordinated quarantine.

Before goods arrive at a border gate, the goods owner shall declare to the competent quarantine agency as follows:

a/ Making export declaration before exporting goods under Points a and b, Clause 1 of this Article;

b/ Making import declaration at least eight (8) days before goods arrive at a border gate; or two (2) days before goods arrive at a post office;

c/ Making declaration on temporary import for re-export, temporary export for re-import, border-gate transfer or transit via the Vietnamese territory at least four (4) days before goods arrive at a border gate.

Within one (1) working day after receiving the goods owner’s declaration, the competent animal quarantine agency shall notify the goods owner of the place and time of quarantine, border gate of importation, border gate of exportation, and other relevant regulations in case of transit of animals or animal products via the Vietnamese territory.

3. The Ministry of Agriculture and Rural Development shall:

a/ Define quarantine agencies competent to receive registrations and quarantine animals or animal products for exportation, importation, temporary importation for re-export, temporary exportation for re-import, transfer from/to border gate or transit via the Vietnamese territory.

b/ Announce before January 1, 2012, the List of countries and territories allowed to export animals or animal products into Vietnam or the List of countries and territories not allowed to export animals or animal products into Vietnam. These lists shall be regularly modified when having any changes.

c/ Stipulate that from January 1, 2015, on, organizations and individuals importing animals or animal products into Vietnam shall carry out registration and quarantine procedures only at a competent animal health agency.”

Article 5. To amend and supplement a number of articles of the Government’s Decree No. 82/2006/ND-CP of August 10, 2006, on management of export, import, re-export, introduction from the sea, transit, breeding, rearing and artificial propagation of endangered, rare and precious wild animal and plant species, as follows:

1. To amend and supplement Article 11 as follows:

“Article 11. Registration of breeding farms, rearing farms and establishments for artificial propagation of wild animal and plant species defined in the Appendices to CITES

1. Registration of breeding farms, rearing farms and establishments for artificial propagation of wild animal and plant species mentioned in Appendix I to CITES

a/ Organizations, households and individuals shall send directly or by post one (1) set of dossier of registration of breeding farms, rearing farms and artificial propagation establishments mentioned in Appendices III-A and III-B to this Decree to provincial-level fisheries management agencies, for registration of aquatic species, or provincial-level ranger agencies, for registration of other wild animal and plant species;

b/ Within three (3) working days after receiving a registration dossier, if the dossier is incomplete, the dossier-receiving agency defined at Point a of this Clause shall notify such to the organization, household or individual for dossier supplementation.

Within fifteen (15) working days after receiving a complete dossier as required, the dossier-receiving agency shall complete the appraisal of the dossier and send the appraised dossier to the Vietnam CITES Management Agency.

If refusing to receive the dossier, within five (5) working days, the Vietnam CITES Management Agency shall notify the reason therefor to the dossier-examining agency and the organization, household or individual requesting registration of breeding farms, rearing farms or artificial propagation establishments. Within fifteen (15) working days after receiving the appraised dossier, if accepting it, the Vietnam CITES Management Agency shall examine and send the dossier to the International CITES Secretariat for consideration and approval.

Within five (5) working days after receiving the International CITES Secretariat’s approval, the Vietnam CITES Management Agency shall grant a certificate of registration of commercial breeding farms, commercial rearing farms or establishments for commercial artificial propagation of the species mentioned in Appendix I to CITES to the organization, household or individual.

2. Registration of breeding farms, rearing farms or establishments for artificial propagation of wild animal or plant species mentioned in Appendices II and III to CITES

Organizations, households and individuals shall submit directly or by post one (1) set of dossier of registration of breeding farms, rearing farms or artificial propagation establishments mentioned in Appendices IV-A and IV-B to this Decree to provincial-level fisheries management agencies, for registration of aquatic species, or provincial-level ranger agencies, for registration of other wild animal and plant species.

Within three (3) working days after receiving a registration dossier, if the dossier is incomplete, the dossier-receiving agency shall notify such to the organization, household or individual for supplementing the dossier under regulations. Within seven (7) working days after receiving a complete dossier as required, the dossier-receiving agency shall appraise the dossier and grant a certificate of registration of breeding farms, rearing farms or artificial propagation establishments, made according to a form provided in Annex 5 to Decree No. 82/2006/ND-CP.”

2. To amend and supplement Article 12 as follows:

“Article 12. Conditions for and registration of breeding farms, rearing farms or establishments for artificial propagation of wild, endangered, rare and precious animal and plant species prescribed by Vietnamese law, which are not defined in the Appendices to CITES

1. Breeding farms and rearing farms for wild, endangered, rare and precious animal and plant species prescribed by Vietnamese law must satisfy the conditions specified in Clause 1, Article 10 of Decree No. 82/2006/ND-CP.

2. Registration of breeding farms and rearing farms for wild, endangered, rare and precious animal and plant species under Vietnamese law complies with Clause 2, Article 11 of Decree No. 82/2006/ND-CP, which was amended and supplemented under Clause 1, Article 5 of this Decree.

3. Establishments for artificial propagation of wild, endangered, rare and precious plant species:

b/ For timber trees, planted forests must be registered with local ranger agencies under regulations on forest protection and development;

b/ For plant species other than timber trees, registration complies with Clause 2, Article 11 of Decree No. 82/2006/ND-CP, which was amended and supplemented under Clause 1, Article 5 of this Decree.”

3. To amend and supplement Clause 1, Article 16 as follows:

“Article 16. Order and procedures for the grant of CITES licenses and certificates

1. Order and procedures for grant of CITES licenses and certificates (also applicable to wild, endangered, rare and precious animal and plant samples which do not belong to CITES but are on the List of wild, rare and precious forest animals and plants under Vietnamese law):

a/ Organizations, households and individuals shall, upon each application for a license, submit one (1) dossier set directly or by post to the Vietnam CITES Management Agency or the Vietnam CITES Management Agency in the southern region;

b/ Sequence of implementation:

If the dossier is incomplete as required, within three (3) working days after receiving the dossier, the dossier-receiving agency shall notify such to the organization, household or individual for dossier supplementation. Within ten (10) working days after receiving a complete dossier as required, the dossier-receiving agency shall complete the appraisal of the dossier and grant a CITES license or certificate. If the dossier is awaiting confirmation, appraisal or consultancy of the International CITES Secretariat, CITES Science Agencies and CITES Management Agencies of relevant member states, within five (5) working days after receiving the dossier, the dossier-receiving agency shall notify such to the applicant.

Organizations, households and individuals shall receive one (1) original license or certificate during working hours on weekdays in the section of receiving dossiers and returning results of administrative procedure settlement (to which they submitted the dossiers). In case dossiers are received under authorization, the authorized person must also have a letter of authorization and identity card or passport of the authorizing person.”

4. To amend and supplement Article 17 as follows:

“Article 17. Dossiers of application for specimen export or re-export licenses or certificates

1. Export or re-export of specimens for commercial purposes

a/ A dossier comprises: an application for a license or certificate, made according to the form provided in Appendix I to this Decree; documents evidencing the lawful origin of specimens under current regulations (copies and the originals for comparison, if dossiers are submitted directly, or certified copies, if dossiers are submitted by post); and a copy of the commercial contract between related parties;