Circular No. 41/2009/TT-BNNPTNT on the management and use of seed samples for plant varieties

CIRCULAR

Provisions on the management and use of seed samples of crop varieties

 ____________________

Pursuant to Decree No. 01/2008/NĐ-CP dated January 3, 2008, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Agriculture and Rural Development;

Pursuant to the Intellectual Property Law No. 50/2005/QH11, Part IV: Rights to Crop Varieties dated November 29, 2005;

Pursuant to the Seed Variety Ordinance No. 15/2004/PL-UBTVQH11 dated March 24, 2004 of the Standing Committee of the National Assembly;

The Ministry of Agriculture and Rural Development stipulates the management and use of seed samples of crop varieties as follows:

Article 1. Scope of Regulation

This Circular stipulates the submission, collection; maintenance, storage, and use of seed samples of widely known crop varieties listed in the Catalogue of Crop Species protected by the State according to the decision of the Minister of Agriculture and Rural Development.

Article 2. Applicability

Organizations and individuals within and outside Vietnam conducting research, selection, production, trading, and using crop varieties in Vietnam.

Article 3. Explanation of Terms

In this Circular, the following terms are understood as follows:

a) A detailed description of the crop variety (hereinafter referred to as the Variety Description) is a document reflecting the characteristics of the crop variety according to the rules for testing distinctness, uniformity, stability, and confirmed by the protection authority or the recognition authority of new crop varieties;

b) A seed sample is a seed, plant, or tuber sample with distinctive characteristics consistent with the variety description, recognized by the competent authority;

c) Widely known crop varieties are crop varieties falling under any of the following cases:

- Crop varieties are objects in applications for recognition or registration accepted;

- Crop varieties recognized to be added to the Catalogue of Crop Varieties permitted for production and trading or granted a certificate of protection;

- Crop varieties not belonging to the aforementioned objects but produced, traded on the market, including local varieties.

Article 4. Submission, Collection of Seed Samples

1. Seed Samples and Seed Sample Files

Each widely known crop variety has 01 seed sample and the Seed Sample File includes the Technical Declaration Form for Seed Samples of Crop Varieties as prescribed in Appendix 3 of this Circular and the Variety Description according to the DUS testing regulations of each crop species. Seed samples and Seed Sample Files are submitted or collected and stored according to the provisions of this Circular.

2. Submission of Seed Samples

a) Organizations and individuals having widely known crop varieties of sexually propagated species, as specified below, must submit 01 seed sample and the Seed Sample File to the Seed Storage Authority (hereinafter referred to as the Storage Authority) as prescribed in Appendix 1 of this Circular:

- Organizations and individuals registering for recognition of crop varieties;

- Organizations and individuals registering for protection of crop varieties;

- Organizations and individuals having recognized crop varieties;

- Organizations and individuals having crop varieties granted a protection certificate or transferred, inherited a protection certificate from other organizations and individuals;

- Organizations and individuals, not belonging to the aforementioned objects, introducing new crop varieties into production and trading.

b) The Seed Storage Authority is also the authority responsible for testing distinctness, uniformity, stability (DUS testing) of crop varieties.

c) The time for submitting seed samples, technical declarations, and variety descriptions (if applicable) is as follows:

- For crop varieties registered for recognition: Not later than before the variety is recognized for trial production;

- For crop varieties registered for protection: At least twenty days before the planting season for DUS testing;

- For crop varieties not belonging to the aforementioned objects: Before introducing new varieties into production and trading.

d) Seed samples and Seed Sample Files are received directly or through postal service at the Storage Authority. The Storage Authority may receive seed samples and Seed Sample Files from organizations and individuals holding varieties that need to be stored.

The Storage Authority establishes a Receipt for Seed Sample Submission according to the model in Appendix 4 of this Circular. A photocopy of the Receipt for Seed Sample Submission is kept in the recognition file or the new variety protection file.

đ) The minimum quantity of seed samples required to be stored is prescribed in Appendix 2 of this Circular. The minimum quality of seed samples must meet the confirmed variety standard or equivalent.

e) Organizations and individuals with parent lines retain their own seed samples and provide them to the Storage Authority upon written request.

3. Collection of Seed Samples

a) The Storage Authority organizes the collection of seed samples and establishes Seed Sample Files for local varieties, varieties without clear ownership or authorship but currently being produced and traded.

b) Organizations and individuals currently storing, researching, producing, and trading the varieties mentioned in point a of this clause have the responsibility to cooperate with the Storage Authority to collect seed samples and establish Seed Sample Files.

4. Plant Samples, Tubers

Organizations and individuals having widely known crop varieties of asexually propagated species, as specified in point a of Clause 2 of this Article, retain their own plant and tuber samples and establish Seed Sample Files to meet usage requirements, without having to submit seed samples to the Storage Authority.

Article 5. Maintenance and storage of seed samples

1. Maintenance and storage of seed samples

a) Evaluation of seed samples

- Within twenty days from the date of receiving the seed sample, the Seed Storage Agency shall check quality indicators according to current standards. If the quality is not guaranteed, the Seed Storage Agency shall request the organization or individual with the variety to submit or collect new seed samples. Within thirty days from the date of receiving the notification from the Seed Storage Agency, the organization or individual with the variety must submit new seed samples to the Seed Storage Agency.

- In cases where plant varieties are registered for protection: the seed sample will simultaneously be the testing material for DUS and will be planted by the Seed Storage Agency according to the DUS testing regulations to assess distinctness, uniformity, and stability.

- In other cases, when necessary, the seed sample may be planted by the Seed Storage Agency to assess distinctness, uniformity, and stability. If it is found that the seed sample is unsuitable, the Seed Storage Agency shall request the provision of another sample.

b) Preservation of seed samples: During the period when the Plant Variety Protection Certificate remains valid or the plant variety is still being produced and traded, the Seed Storage Agency must:

- Preserve the seed samples under suitable conditions to maintain seed viability and germination rate;

- Regularly check the seed viability and germination rate. If the seed sample does not meet quality requirements, the Seed Storage Agency shall send a written request for the organization or individual with the variety to submit additional samples or collect new seed samples, except for varieties that the Seed Storage Agency multiplies according to point c of this Clause.

- Plant additional new seed samples for comparison with old samples (if available) and the variety description; if differences are observed, request submission or collection of different samples.

c) During the preservation process, the Seed Storage Agency may increase the quantity of seed samples of pure varieties to meet storage and usage requirements, provided that the quality of the additional multiplied samples must comply with the standards and the variety description.

d) After evaluating the seed samples, the Seed Storage Agency must transfer a portion of the seed samples (except hybrid seeds) in accordance with the quantity specified in Appendix 2 of this Circular, a copy of the Technical Declaration Form, and the Variety Description (if available) to the Plant Genetic Resources Center for long-term storage as a national gene source.

e) When the Seed Storage Agency requests in writing, the Plant Genetic Resources Center must cooperate to preserve collected seed samples; storage costs shall be agreed upon by the parties in the contract.

f) Organizations or individuals with widely known plant varieties must maintain the variety according to the variety description to serve production and trade; submit to the Seed Storage Agency and provide for other usage needs as stipulated in Article 6 of this Circular.

Upon expiration of the protection certificate or discontinuation of production and trade of the plant variety, a written notice must be given to the Seed Storage Agency to decide on continued storage or removal of the seed samples.

2. Maintenance and storage of plant cutting samples, tuber samples

a) Organizations or individuals with vegetatively propagated plant varieties must maintain and store plant cutting samples (mother plants or mother plant nurseries) or tuber samples in compliance with standards and establish Sample Variety Records to serve production and trade and meet usage requirements as stipulated in Article 6 of this Circular.

b) Organizations or individuals with plant varieties must report the location of plant cutting and tuber sample storage to the Crop Cultivation Department (Plant Variety Protection Office) when submitting a registration application or report to the Department of Agriculture and Rural Development at the local level when the variety is recognized or put into production and trade; the Department of Agriculture and Rural Development shall compile and report to the Ministry (Crop Cultivation Department).

Article 6. Use of seed samples

1. Seed samples of agricultural crops shall be used as follows:

a) As control varieties, similar varieties, or typical varieties in DUS testing;

b) As standard samples in variety testing, inspection, and post-inspection;

c) As standard samples in supervision, inspection, and resolution of disputes related to crop varieties;

d) As a source of genetic resources that must be preserved.

2. Organizations and individuals who need to use seed samples shall submit a written request to the storage agency or organizations and individuals holding the seeds to be provided, but they must pay costs according to State regulations or by agreement if there are no State regulations.

3. Storage agencies, Plant Genetic Resources Centers, organizations, and individuals using seed samples shall not infringe upon the intellectual property rights of organizations and individuals holding crop seed samples in accordance with the provisions of the law.

Article 7. Implementation Organization

1. This Circular takes effect 45 days from the date of issuance.

2. By no later than December 31, 2009, the following requirements shall be met:

a) Organizations and individuals holding widely known crop varieties that have not submitted seed samples to the storage agency shall hand over seed samples and seed sample documentation to the storage agency or report the location where the plant seed samples or tuber seed samples are stored to the Department of Agriculture and Rural Development in accordance with the provisions of this Circular.

b) The seed storage agency shall check and compile a list of crop varieties without seed samples stored or seed samples not meeting the requirements; notify organizations and individuals holding the seeds to submit or collect seed samples in accordance with the provisions of this Circular.

c) The Department of Agriculture and Rural Development shall check and compile a list of locations storing plant seed samples or tuber seed samples for clonal crop varieties within their jurisdiction and report it to the Crop Production Department.

3. The Director of the Crop Production Department, the Head of the Ministry's Office, the Heads of units under the Ministry, and relevant organizations and individuals are responsible for implementing this Circular.

4. In the course of implementation, if there are difficulties or obstacles, relevant organizations and individuals shall reflect them in writing to the Ministry of Agriculture and Rural Development for prompt handling./.