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Decree No. 98/2011/ND-CP of the Government of October 26, 2011, Amending and Supplementing some Articles of Decrees on Agriculture

THE GOVERNMENT SOCIALIST REPUBLIC OF VIET NAM ------- Independence - Freedom – Happiness

--------- No. 98/2011/ND-CP Hanoi, October 26, 2011

DECREE OF THE GOVERNMENT AMENDING, SUPPLEMENTING SOME ARTICLES OF

DECREES ON AGRICULTURE

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, supplement some articles of the Decree No.88/2010/ND-CP dated August 16, 2010 of the Government 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, supplement paragraph 1 of Article 16 as follows:

“Article 16. Conditions on designated testing organizations and individuals 1. An organization or individual designated to conduct technical tests must meet the following conditions:

a/ Having the functions of testing or researching into and creating plant varieties;

b/ Having a location and land area suitable for carrying out testing experiments according to testing requirements applicable to the plant species designated for testing:

c/ Having special-use equipment or having signed contracts with other organizations and individuals to analyze and assess criteria according to testing requirements applicable to the plant species designated for testing;

d/ Having at least 1 technician who possesses a university degree in planning or plant varieties or has been directly engaged in technical tests for at least 2 years;

dd/ Having a collection of sample varieties of widely known plant varieties of the species designated for testing.”

2. To amend, 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 in accordance with law, the assignor shall submit a dossier of registration for the assignment contract to the plant variety protection agency and pay a fee according to regulations.

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

a/ Declaration forms, made according to a set form of the Ministry of Agriculture and Rural Development;

b/ One (01) original or lawful copies of the contract (or notarized copies or copies with the original for comparison). Contracts must be made in Vietnamese or translated into Vietnamese, bearing the signatures of involved parties on each page or a seal on every two adjoining pages;

c/ The original or a lawful copy of the protection certificate (or notarized copies or copies with the original for comparison).

d/ The written consent of co-owners, for plant varieties under joint ownership (Originan( �

dd/ Copies of charge and fee payment documents or fax document proving the transfer to the account of plant variety protection agency;

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

3. Within five (05) working days from the date of receiving the dossier, the plant variety protection agency informs organizations and individuals to complete the dossier in the case that is not fully in compliance with regulations.

4. Within thirty (30) working days when receiving fully dossier in compliance with regulations, the plant variety protection agency will verify the dossier and submit to the Ministry of Agriculture and Rural Development to issue the Certificate of ownership rights assignment to the plant variety, issue Protection Certificate to the new holder and inform to accept a protection registration application under new holder’s name (in the case of assigning protection registration application).”

3. To amend, supplement Article 31 as follows:

“Article 31. Procedures for compulsory licensing of protected plant varieties under decisions 1. Organizations and individuals that wish to use plant varieties shall file their 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 licensing of plant varieties or meet with obstacles in competition may file dossiers of registration for compulsory licensing of plant varieties under 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/ Written requests for compulsory licensing of a plant variety, made according to a set form of the Ministry of Agriculture and Rural Development, clearly stating the scope and duration of the compulsory licensing;

b/ Copies of the certificate of registration for plant variety production and trading;

c/ Requests evidencing the licensee's financial capability to pay compensation to the licensor according to regulations;

d/ Documents evidencing the request for compulsory licensing of the plant variety is supported by sound grounds as prescribed by law for cases defined at Points b and c. Clause 1, Article 195 of the Law on Intellectual Property;

dd/ A power of attorney, for cases of filing dossiers through a representative;

e/ Copies of charge and fee payment documents or fax document proving the transfer to the account of plant variety protection agency;

3. The order of 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 (01) dossier specified in Clause 2 of this Article and check the fulfill of the dossier within five (05) working days from the date of receiving the dossier, the plant variety protection agency informs organizations and individuals to complete the dossier in the case that is not fully in compliance with regulations.

b/ Within fifteen (15) days after receiving the dossier, 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 of and procedures for compulsory licensing of a protected plant variety under Point b or c. Clause 1, Article 195 of the Law on Intellectual Property:

a/ The plant variety protection agency shall receive one (01) dossier specified in Clause 2 of this Article check the fulfill of the dossier within five (05) working days from the date of receiving the dossier, the plant variety protection agency informs organizations and individuals to complete the dossier in the case that is not fully in compliance with regulations;

b/ Within fifteen (15) days after receiving the dossier fully in compliance with regulations, the Ministry of Agriculture and Rural Development shall notify the holder of the exclusive rights to use the plant variety of the request for compulsory licensing of that plant variety;

c/ Within 30 (thirty) days after the date of issuance of the notice, the holder of the exclusive rights to use the plant variety shall make a written reply;

d/ In case the holder of monopolistic rights to use the plant variety rejects the compulsory licensing request, within 15 (fifteen) days, the Ministry of Agriculture and Rural Development shall issue a written reply to the requestor;

dd/ 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 conformable with regulations and shall notify its decision to the licensor and licensee for compliance;

e/ If the request for compulsory licensing of a plant variety is not supported by sound grounds as specified at Point b and c. Clause 1. Article 195 of the Law on Intellectual Property, it shall issue a written reply clearly stating the reason for refusal.”

Article 2. To amend, supplement some articles of the Decree No.02/2007/ND-CP dated January 05, 2007 of the Government on plant quarantine 1. To amend, supplement paragraph 5, Article 26 as follows:

“Article 26. Conditions for fumigation 5. To have working places, equipment and chemical storehouses in compliance with regulations/”

2. To amend, supplement paragraph 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 (01) of subjects on chemicals or plant protection, plant or agronomy.”

Article 3. To amend, supplement paragraph 1, Article 17 of regulation on management of plant protection drugs issued together with the Government’s Decree No. 58/2002/ND-CP of June 3, 2002 of the Government To amend, supplement paragraph 1, Article 17 as follows:

“Article 17. Conditions for granting professional practice certificates to plant protection drug dealers: 1. Having diplomas of intermediate vocational training or higher degree in one (01) of the subjects such as plant, plant protection, biology, agricultural pedagogy or certificates of completion of professional courses on plant protection drugs, granted by the provincial-level Sub-Departments for Plant Protection;

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

1. Article 30 is amended and supplemented as follows:

“Article 30. Declaration of quarantine of terrestrial animals and products thereof 1. When transporting or circulating within the country terrestrial animals or animal products on the list of animals and animal products subject to quarantine, goods owners shall declare and send one (01) quarantine dossiers made according to a set form, to provincial-level, municipal state agencies or state management agencies in charge of animal health of districts, communes, towns or cities directly under provinces. The quarantine declaration is stipulated as follows:

a/ Making declaration at least two (02) days before transportation, if animals have been subjected to compulsory preventive measures under regulations and still stay immune; between 15 and 30 days if animals haven’t been subjected to compulsory preventive measures under regulations and still stay immune;

b/ Making declaration at least two (02) days before transportation, if animal products have been tested for veterinary sanitation or are sent by post; seven (07) days in advance, if animal products have not yet been tested for veterinary sanitation.

Within one working day after the receipt of a valid dossier, the dossier- receiving agency shall certify the quarantine registration and notify the place and time of quarantine.

Within one working day after animals or animal products are brought to the prescribed place, the animal quarantine agency shall conduct quarantine.

2. Goods owners having demands on importing, temporarily importing for re-export, temporarily exporting for re-import, transferring out of border gates or transiting through Vietnamese

territory animals or animal products on the list of animals and animal products subject to quarantine or alien animals which are not found in Vietnam, goods owners must register for veterinary sanitation or products thereof and send one (01) quarantine registration dossiers, made according to a set form, to the authorized animal quarantine agency in accordance with regulations of the Ministry of Agriculture and Rural Development.

Within five (05) working days after receiving a valid dossier, the animal quarantine agency shall notify the goods owner of the quarantine agency which shall conduct the quarantine and, at the same time, send this notice to the concerned animal quarantine agency for conducting quarantine.

Before goods are at the border, goods owner must declare the authorized animal quarantine agency, as follows:

a/ Making declaration before exporting: prescribed at point (a), (b), paragraph 1 of this Article;

b/ Making declaration on importing: within at least eight (08) working days before goods come to the border; two (02) working days before goods come to the post;

c/ Making declaration on temporarily importing for re-export, temporarily exporting for re- import, transferring out of border gates or transiting through Vietnamese territory within at least four (04) working days before goods come to the border.

Within one working day (01) after the receipt of declaration from good owners, the animal quarantine agency shall have authorities and responsibilities to notify the place and time of quarantine, export border, import border and other relevant regulations to the case of transiting through Vietnamese territory animals or animal products.

3. The Ministry of Agriculture and Rural Development shall be responsible for:

a/ Regulating the authorized animal quarantine agency to receive registration and quarantine animals or animal products for importing, temporarily importing for re-export, temporarily exporting for re-import, transferring out of border gates or transiting through Vietnamese territory.

b/ Announcing List of countries and regions allowed to export animals and animal products into Vietnam or List of countries and regions not allowed to export animals and animal products into Vietnam before January 01, 2012. These lists will be regularly changed when having any change.

c/ Individual and organization must register only at an authorized animal quarantine agency when importing animals and animal products in Vietnam from January 01, 2015.”

Article 5. To amend, supplement some articles of the Decree No. 82/2006/ND-CP dated August 10, 2006 of the Government on management of export, import, re-export, introduction from the sea, transit, breeding, rearing and artificial propagation of endangered species of precious and rare wild fauna and flora as follows: 1. To amend, supplement Article 11 as follows:

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

1. Registering farms for breeding, farms for rearing and establishments for artificial propagation of wild animal and/or plant species defined in the Appendix 1 to CITES.

a) Organizations, households and individuals shall submit directly or send by post one (01) dossier registering farms for breeding, farms for rearing and establishments for artificial propagation prescribed at Appendix III-A and Appendix III-B of this Decree to provincial farm management agencies for registering farms; provincial forest management office for other wild animal and/or plant species;

b/ Within three (03) working days from receiving the dossier, the receiving- dossier agency must inform organizations, households and individuals to finish the dossier if it has not been fulfilled.

Within 15 working days after the receipt of dossiers for registration of farms in accordance with regulations, the receiving-dossier agency must complete the appraisal of the registration dossiers and send the appraised dossiers to the CITES Management Authority.

In case of refusal, within five (05) working days, the CITES Management Authority must notify the reasons therefor to the dossier appraisal agencies ,organizations, households or individuals applying for registration of breeding farms or artificial propagation establishments. Within 15 working days after the receipt of appraised registration dossiers, the CITES Management Authority shall have to consider and forward the registration dossiers to the Secretariat of CITES International for consideration and approval.

Within five (05) working days after the receipt of approval of the Secretariat of CITES International, CITES Management Authority of Vietnam must issue registration certificates to commercial breeding farms or commercial artificial propagation establishments prescribed at Appendix I to CITES for organizations, households and individuals.

2. Registering farms for breeding, farms for rearing and establishments for artificial propagation of wild animal and/or plant species defined in the Appendix II - III to CITES.

Organizations, households and individuals shall submit directly or send by post one (01) dossier registering farms for breeding, farms for rearing and establishments for artificial propagation prescribed at Appendix IV-A and Appendix IV-B of this Decree to provincial farm management agencies for registering farms; provincial forest management office for other wild animal and/or plant species.

Within three (03) working days from receiving the dossier, the receiving- dossier agency must inform organizations, households and individuals to finish the dossier if it has not been fulfilled. Within 15 working days after the receipt of dossiers for registration of farms in accordance with regulations, the receiving-dossier agency must proceed with the appraisal and issue registration certificates to the registered breeding farms, rearing farms and artificial propagation establishments in accordance with Appendix 5 to the Decree No. 82/2006/ND-CP.”

2. To amend, supplement Article 12 as follows:

“Article 12.- Conditions on, and registration of, farms for breeding, farms for rearing or establishment artificially propagating endangered precious and rare fauna and/or flora species defined by Vietnamese law, not defined in the Appendices to CITES. 1. Farms for breeding and farms for rearing endangered precious and rare wild fauna species prescribed by Vietnamese law must satisfy the conditions set in Clause 1, Article 10 of the Decree No. 82/2006/ND-CP.

2. Registering farms for breeding and farms for rearing endangered precious and rare wild fauna species prescribed by Vietnamese law in compliance with paragraph 2, Article 11 of the Decree No. 82/2006/ND-CP amended, supplemented at paragraph 1, Article 5 of this Decree.

3. Establishments for artificial propagation of endangered precious and rare flora species:

a/ For timber trees, the planted forests must be registered with local forest management sub- departments according to the provisions of law on forest protection and development.

b/ For non-timber flora species, the registration must be made with regulations at paragraph 2, Article 11 of the Decree No. 82/2006/ND-CP amended, supplemented at paragraph 1, Article 5 of this Decree.”

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

“Article 16. Steps and methods for implementing the application for CITES permit or certificate. 1. Steps and methods for implementing the application for CITES permit or certificate (applied for the list of wild fauna and flora species not belonging to CITES but belonging to the list of wild fauna and flora species under Vietnam laws).

a/ Organizations, households and individuals shall submit directly or send by post one (01) registering dossier to CITES Management Authority of Vietnam or CITES Management Authority of Vietnam in the South;

b/ Implementation steps:

Within three (03) working days from receiving the dossier, the receiving- dossier agency must inform organizations, households and individuals to finish the dossier if it has not been fulfilled. Within ten (10) working days after the receipt of dossiers for registration of farms in accordance with regulations, the receiving-dossier agency must proceed with the appraisal and issue registration certificates to CITES. In the case of being waiting for the appraisal, confirmation and consultant from the Secretariat of CITES International, CITES scientific bodies of Vietnam and CITES Management Authority of member countries, the dossier-receiving agency must inform organizations, individuals submitting that dossier within five (05) working days from the date of receiving the dossier.

Organizations, households and individuals receive one (01) original permit, certificate in daily administrative time in the section of receiving and paying the results of administrative procedures (the place for submitting the dossier). The case receiving for, the receiver must have a mandatory paper and identity card or passport of the mandatory.”

4. To amend, supplement Article 17 as follows:

“Article 17. Dossiers of application for specimen export or re-export permits, certificates 1. Export, re-export of specimens for commercial purposes

a/ The dossier includes: The application for a permit or certificate, made according to a form set in Appendix 1 to this Decree (not printed herein), the dossier evidencing the lawful origin of the specimen under current regulations (the copy is with the original for comparison, or in the case that the direct dossier is notarized copy, in the case of submitting the dossier by post). The copy of the commercial contract among relevant parties;