Decree No. 65/2010/ND-CP detailing and guiding the implementation of certain provisions of the Law on Biodiversity.

DECREE

Detailed regulations and guidance on implementation of certain provisions of the Law on Biodiversity

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THE GOVERNMENT

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

Pursuant to the Law on Biodiversity dated November 13, 2008;

CONSIDERING THE PROPOSAL OF THE MINISTER OF NATURAL RESOURCES AND ENVIRONMENT,

DECREE:

Article 1. Scope of Regulation

This Decree stipulates detailed regulations and provides guidance on the implementation of certain provisions of the Law on Biodiversity concerning planning for biodiversity conservation, protected areas, conservation and sustainable development of species, and conservation and sustainable development of genetic resources.

Article 2. Applicability

This Decree applies to organizations, households, individuals within Vietnam; foreign organizations, agencies, individuals, and overseas Vietnamese with activities directly or indirectly related to biodiversity conservation and sustainable development in Vietnam.

1. The Ministry of Natural Resources and Environment shall take the lead and coordinate with the Ministry of Agriculture and Rural Development, relevant ministries and ministerial-level agencies, and provincial People's Committees (hereinafter referred to collectively as provincial People's Committees) to organize the establishment, review, and submission

a) Conducting investigations to determine the needs for biodiversity conservation and drafting the national overall plan for biodiversity conservation;

b) Soliciting opinions from relevant ministries and ministerial-level agencies and provincial People's Committees;

c) Reviewing the national overall plan for biodiversity conservation;

d) Submitting the national overall plan for biodiversity conservation to the Prime Minister for approval.

2. The Minister of Natural Resources and Environment shall establish an inter-ministerial review board and chair the review process. The inter-ministerial review board shall be responsible for the content and feasibility of the national overall plan for biodiversity conservation.

The inter-ministerial review board shall decide by majority vote.

The inter-ministerial review board consists of nine members: The Chairman of the Board is a leader of the Ministry of Natural Resources and Environment; other members include representatives at the Department level from the Ministries of Planning and Investment, Natural Resources and Environment, Agriculture and Rural Development, Science and Technology, Culture, Sports and Tourism, Health, and some experts in the field of biodiversity.

3. Documents for submission to approve the national overall plan for biodiversity conservation include:

a) The national overall plan for biodiversity conservation;

b) A document from the inter-ministerial review board;

c) An environmental impact assessment report for the national overall plan for biodiversity conservation that has been reviewed;

d) Opinions from relevant ministries and ministerial-level agencies and provincial People's Committees.

1. Provincial People's Committees shall be responsible for establishing, reviewing, and submitting the provincial plan for biodiversity conservation to the provincial People's Council for adoption according to the following procedures:

a) Conducting investigations to determine the needs for biodiversity conservation and drafting the provincial plan for biodiversity conservation;

b) Soliciting opinions from relevant departments, committees, and district People's Committees;

c) Reviewing the provincial plan for biodiversity conservation;

d) Submitting the provincial plan for biodiversity conservation to the provincial People's Council for adoption.

2. The Chairman of the provincial People's Committee shall establish an inter-departmental review board and chair the review process. The inter-departmental review board shall be responsible for reviewing the content and feasibility of the provincial plan for biodiversity conservation.

The inter-departmental review board shall decide by majority vote.

The inter-departmental review board consists of nine members: The Chairman of the Board is a leader of the provincial People's Committee; other members include leaders from the Departments of Planning and Investment, Natural Resources and Environment, Agriculture and Rural Development, Science and Technology, Culture, Sports and Tourism, Health, a representative at the Department level from the Ministry of Natural Resources and Environment, and experts in the field of biodiversity.

3. Documents for submission to the provincial People's Council for adoption of the provincial plan for biodiversity conservation include:

a) The provincial plan for biodiversity conservation;

b) A document from the inter-ministerial review board;

c) An environmental impact assessment report for the provincial plan for biodiversity conservation that has been reviewed;

d) Opinions from relevant departments, committees, and district People's Committees.

1. Based on the national comprehensive biodiversity conservation planning, ministries and equivalent agencies with state management functions for biodiversity conservation shall be responsible for establishing the biodiversity conservation planning within their jurisdiction.

2. The procedures for establishing, reviewing, and approving the biodiversity conservation planning of ministries and equivalent agencies shall be carried out as follows:

a) Conduct investigations to determine the needs for biodiversity conservation and develop a project for biodiversity conservation planning within their jurisdiction;

b) Solicit opinions from relevant organizations and individuals;

c) Request the Ministry of Natural Resources and Environment to review the biodiversity conservation planning project;

d) Approve the biodiversity conservation planning.

3. The Ministry of Natural Resources and Environment shall be responsible for reviewing the compatibility between the biodiversity conservation planning of ministries and equivalent agencies and the national comprehensive biodiversity conservation planning.

4. The dossier for approving the biodiversity conservation planning of ministries and equivalent agencies includes:

a) The biodiversity conservation planning project of ministries and equivalent agencies;

b) The review document of the Ministry of Natural Resources and Environment;

c) The strategic environmental assessment report for the biodiversity conservation planning project of ministries and equivalent agencies that has been reviewed;

d) Opinions from relevant organizations and individuals.

5. Ministries and equivalent agencies with state management functions for biodiversity conservation shall approve their own biodiversity conservation planning after receiving the review opinion of the Ministry of Natural Resources and Environment.

1. Biodiversity conservation planning shall be amended in the following cases:

a) Requirements to adjust the national socio-economic development goals, sectoral, local goals; defense and security;

b) When there is an adjustment to land use planning, national socio-economic development planning;

c) It is necessary to implement important national projects after considering other options but they cannot be implemented;

d) Other special cases as decided by

2. The agency responsible for establishing, reviewing, approving, and passing the biodiversity conservation planning shall be responsible for establishing, reviewing, approving, and passing the amendment to the biodiversity conservation planning.

3. The procedures for establishing, reviewing, and approving the amendment to the biodiversity conservation planning shall be carried out according to the provisions on the procedures for establishing, reviewing, and approving the biodiversity conservation planning stipulated in Articles 3, 4, and 5 of this Decree.

4. The contents of the amendment to the biodiversity conservation planning must be publicly announced.

Article 7. Criteria for Classifying Protected Areas

1. National-level nature reserves, species and habitat conservation areas, and landscape protection areas are protected areas that meet the main criteria specified in Article 17, Clause 2 of Article 18, Clause 2 of Article 19, and Clause 2 of Article 20 of the Biodiversity Law.

2. Provincial-level nature reserves are protected areas that meet the main criteria as follows:

a) Having important natural ecosystems for the locality, unique ecosystems, or representative ecosystems of the locality;

b) Having special ecological and environmental values serving scientific research, education, tourism, and rest.

3. Provincial-level species and habitat conservation areas are protected areas that meet the main criteria as follows:

a) Being the regular or seasonal habitat of wild species listed in the prohibited exploitation outside natural habitats, breeding grounds, and wintering grounds for migratory species;

b) Having special ecological and environmental values serving scientific research, education, tourism, and rest.

4. Provincial-level landscape protection areas are protected areas that meet the main criteria as follows:

a) Having scenic environments, beauty, and uniqueness of nature but not meeting the criteria for establishing national-level landscape protection areas;

b) Having special ecological and environmental values serving scientific research, education, tourism, and rest.

1. The responsibilities for establishing national-level conservation areas are stipulated as follows:

a) The People's Committee of the province shall organize the establishment of a project to establish a national-level conservation area with the entire area under its management.

b) The Ministry of Agriculture and Rural Development shall take the lead and coordinate with the People's Committees of provinces concerned to establish a project to establish a national-level conservation area within special-use forests and marine areas with an area spanning two or more centrally governed cities or provinces.

c) The Ministry of Natural Resources and Environment shall take the lead and coordinate with the People's Committees of provinces concerned to establish a project to establish a national-level conservation area within wetlands, karst mountains, unused land, and mixed ecosystems with an area spanning two or more centrally governed cities or provinces, excluding those specified in Clause 2 of this Article.

2. The People's Committee of the province shall establish a multi-sectoral review board to review the project to establish a conservation area as stipulated in Point a, Clause 1 of Article 8 of this Law; the Ministry of Natural Resources and Environment shall establish a multi-sectoral review board to review the project to establish a conservation area as stipulated in Points b and c, Clause 1 of Article 8 of this Law.

3. The multi-sectoral review board shall consist of at least seven members as follows:

a) For the multi-sectoral review board for the project to establish a conservation area as stipulated in Point a, Clause 1 of Article 8 of this Law: The Chairman of the Board shall be a leader of the People's Committee of the province, and the members shall be leaders of the departments, bureaus, and sectors: Natural Resources and Environment, Agriculture and Rural Development, Science and Technology, Culture, Sports and Tourism; representatives from the Department level of the Ministry of Natural Resources and Environment, and experts in biodiversity.

b) For the multi-sectoral review board for the project to establish a conservation area as stipulated in Points b and c, Clause 1 of Article 8 of this Law: The Chairman of the Board shall be a leader of the Ministry of Natural Resources and Environment, and the members shall be representatives from the Department level of the Ministries: Natural Resources and Environment, Agriculture and Rural Development, Science and Technology, Culture, Sports and Tourism, representatives from the People's Committee of the province where the project to establish a national-level conservation area is planned, and experts in biodiversity.

4. The content of the review of the project to establish a conservation area includes:

a) The degree of compliance with criteria for establishing a conservation area;

b) The geographical location, boundaries, and area of the conservation area, functional zones, and buffer zones of the conservation area;

c) Ecological restoration projects within the conservation area;

d) Management regulations for the conservation area;

e) Other contents as required by the agency reviewing the project to establish a conservation area.

5. The People's Committee of the province shall be responsible for submitting the project file to establish a national-level conservation area with the entire area under provincial management to the Ministry of Natural Resources and Environment for formal written comments before presenting it.

1. The People's Committee of the province shall manage conservation areas with the entire area under its management.

2. The Ministry of Agriculture and Rural Development shall manage national-level conservation areas within special-use forests on land and marine areas with an area spanning two or more centrally governed cities or provinces.

3. The Ministry of Natural Resources and Environment shall be responsible for managing national-level conservation areas within wetlands, karst mountains, unused land, and mixed ecosystems with an area spanning two or more centrally governed cities or provinces, excluding those specified in Clause 2 of this Article.

Article 10. Rights and Obligations of Households and Individuals Legally Residing in Conservation Areas

1. Households and individuals legally residing in conservation areas are those households and individuals entitled to legally use residential land in accordance with the provisions of the Land Law.

2. Households and individuals legally residing in conservation areas shall enjoy the rights and perform the obligations stipulated in Article 30 of the Biodiversity Law and the following rights and obligations:

a) Priority in exploiting land, water surfaces, forests for agricultural cultivation, aquaculture, and other purposes not prohibited by law;

b) Priority in establishing projects to exploit conservation areas for ecotourism and other service activities that do not contravene the law;

c) Priority in recruitment and participation in the management of conservation areas;

d) Sharing benefits from tourism business activities, exploitation of resources, support projects for conservation areas, access to genetic resources within conservation areas, and other benefits as prescribed by law;

1. The Ministry of Natural Resources and Environment shall take the lead and coordinate with the Ministry of Agriculture and Rural Development to complete before December 31, 2012, the review of conservation areas established before the effective date of the Biodiversity Law.

2. Review compliance with the main criteria for conservation areas as prescribed by the Biodiversity Law and this Decree. Conservation areas that do not meet the main criteria must establish transition projects.

3. Responsibilities for establishing transition projects for conservation areas are specified as follows:

a) Provincial People's Committees shall organize investigations, evaluations, and the establishment of transition projects for conservation areas covering the entire area under their jurisdiction;

b) The Ministry of Agriculture and Rural Development shall organize investigations, evaluations, and the establishment of transition projects for national-level conservation areas located in terrestrial special-use forests and marine areas with an area spanning two or more provinces or centrally-administered municipalities;

c) The Ministry of Natural Resources and Environment shall organize investigations, evaluations, and the establishment of transition projects for national-level conservation areas in wetlands, karst areas, unused lands, and mixed ecosystems with an area spanning two or more provinces or centrally-administered municipalities, excluding those covered by point b of this clause.

4. The agency responsible for establishing transition projects for conservation areas as stipulated in Clause 3 of this Article shall submit them for approval.

Article 12. Criteria for Identifying Endangered, Precious, and Rare Species Included in the Priority Protection List

1. Wild animals and plants; cultivated plant varieties, domestic animal breeds, microorganisms, and fungi included in the list of endangered, precious, and rare species prioritized for protection (hereinafter referred to collectively as priority protected species) are those species meeting the following criteria:

a) Threatened with extinction;

b) Endemic or possessing one or more special values in science, ecology, scenery, environment, culture, and history.

2. The Ministry of Natural Resources and Environment shall take the lead and coordinate with the Ministry of Agriculture and Rural Development and the Ministry of Culture, Sports, and Tourism to issue a Joint Circular providing detailed guidance on identifying species with special values in science, ecology, scenery, environment, culture, and history.

Article 13. Management and protection regime for prioritized protected species

1. The investigation, inventory, and assessment of the status of prioritized protected species shall be regulated as follows:

a) Conducting investigations, inventories, and assessing the living conditions of prioritized protected species on a five-year cycle to develop appropriate conservation plans;

b) Establishing project areas to create conservation zones for the natural habitats of prioritized protected species that are permanent or seasonal.

2. The establishment of records for prioritized protected species shall be regulated as follows:

a) Each prioritized protected species must have its own record containing information about quantity, distribution, living conditions, risk of extinction, and other relevant conservation-related contents;

b) Records of prioritized protected species must be updated every five years based on actual investigation data;

c) Records of prioritized protected species shall be established in three copies to be stored at the agency directly responsible for conserving such species, the management department of such species, and the Ministry of Natural Resources and Environment.

3. Conservation of prioritized protected species shall be regulated as follows:

a) Each prioritized protected species shall be conserved through a specific conservation program and assigned to an agency responsible for the conservation of such species;

b) Species losing their natural permanent or seasonal habitats shall be raised in biodiversity conservation facilities;

c) Genetic samples of prioritized protected species must be preserved long-term for the purpose of biodiversity conservation.

4. The Ministry of Natural Resources and Environment shall take the lead and coordinate with the Ministry of Agriculture and Rural Development to issue Circulars guiding responsibilities, conservation regimes, establishment, approval, and implementation of conservation programs for prioritized protected species.

Article 14. Procedure and process for reviewing applications to include or exclude species from the list of prioritized protected species

1. Responsibilities for reviewing applications to include or exclude species from the list of prioritized protected species shall be regulated as follows:

a) The Ministry of Agriculture and Rural Development shall review applications to include or exclude animal and plant species belonging to terrestrial forest ecosystems from the list of prioritized protected species;

b) The Ministry of Natural Resources and Environment shall review applications to include or exclude species belonging to marine, wetland, karst, unused land, and mixed ecosystems not covered under point a of this clause from the list of prioritized protected species.

2. Within sixty days from the date of receiving valid applications, the agencies specified in Clause 1 of this Article shall be responsible for reviewing and sending the results of the review to the proposing organizations or individuals. In cases where the Ministry of Agriculture and Rural Development reviews, the results of the review shall be sent to the Ministry of Natural Resources and Environment.

3. Within forty-five days from the date of receiving the application and the review comments, the Ministry of Natural Resources and Environment shall be responsible for compiling and submitting the report.

Article 15. Authority, procedure, and process for placing prioritized protected species into biodiversity conservation facilities and releasing them back into their natural habitats

1. The Provincial People's Committee shall approve the transfer of prioritized protected species from natural environments to be raised or grown in biodiversity conservation facilities and the release of such species back into their natural habitats.

2. The procedure and process for requesting the transfer of prioritized protected species from natural environments to be raised or grown in biodiversity conservation facilities and the release of such species back into their natural habitats shall be regulated as follows:

a) The head of the biodiversity conservation facility shall prepare a project for raising prioritized protected species in their own facility or releasing them back into their natural habitats and submit it to the competent authority specified in Clause 1 of this Article;

b) Within sixty days from the date of receiving complete and valid applications, the Provincial People's Committee shall be responsible for examining the project and the status of prioritized protected species to approve the permission for raising prioritized protected species in biodiversity conservation facilities or releasing them back into their natural habitats.

3. The Ministry of Natural Resources and Environment shall take the lead and coordinate with the Ministry of Agriculture and Rural Development to issue Circulars stipulating the procedures for preparing projects to raise prioritized protected species in biodiversity conservation facilities and releasing them back into their natural habitats; conditions, procedures, and processes for transferring prioritized protected species to biodiversity conservation facilities and re-releasing them back into their natural habitats.

Article 16. Conditions for breeding, planting, rescue, and preserving genetic resources and genetic samples of species prioritized for protection

1. Biodiversity conservation facilities that have been granted certificates may breed and plant species prioritized for protection.

2. The establishment of rescue facilities for wild species must meet the requirements for rescuing species prioritized for protection.

3. Genetic resources and genetic samples of species prioritized for protection must be stored long-term in laboratories and gene banks.

4. The Ministry of Natural Resources and Environment shall take the lead and coordinate with the Ministry of Agriculture and Rural Development to issue joint Circulars guiding specifically the rescue of wild species; the long-term storage of genetic resources and genetic samples of species prioritized for protection.

1. Organizations and individuals who wish to establish biodiversity conservation facilities must submit a written request for establishment to the People's Committee of the province where the facility is planned to be established.

2. The registration dossier for establishing a biodiversity conservation facility shall be carried out in accordance with the provisions of Clause 3, Article 42 of the Law on Biodiversity.

3. Within sixty days from the date of receiving a complete and valid dossier, the People's Committee of the province shall be responsible for reviewing and issuing a certificate for the biodiversity conservation facility. In case of non-issuance, a written notification must be sent to the organization or individual requesting the establishment of the facility, specifying the reasons.

4. The People's Committee of the province shall revoke the certificate for the biodiversity conservation facility in the following cases:

a) The biodiversity conservation facility does not meet one of the conditions stipulated in Clause 2, Article 42 of the Law on Biodiversity;

b) After twelve months from the date of issuance of the certificate, the facility does not commence operations;

c) There are violations of laws in the conservation and sustainable development of biodiversity;

d) Other cases as prescribed by law.

5. Biodiversity conservation facilities established before the effective date of the Law on Biodiversity that do not meet the conditions stipulated in Clause 2 of Article 42 of the Law on Biodiversity must supplement the necessary conditions to obtain a certificate by December 31, 2012 if they wish to continue operating.

6. The Ministry of Natural Resources and Environment shall guide the format of the application form containing the main contents of the project for establishment and the certificate for the biodiversity conservation facility.

1. Organizations and individuals wishing to access genetic resources must comply with the procedures stipulated in Clauses 1, 2, and 3 of Article 57 of the Law on Biodiversity to obtain a permit for accessing genetic resources.

2. The procedures and formalities for accessing genetic resources are as follows:

a) Organizations and individuals wishing to access genetic resources must register in writing with the People's Committee of the province where the genetic resources are located;

b) After the People's Committee of the province has accepted the registration for accessing genetic resources, organizations and individuals must sign an agreement on the terms of accessing genetic resources and sharing benefits with households, organizations, or individuals managing the genetic resources. The agreement on accessing genetic resources and sharing benefits must be confirmed by the People's Committee of the commune where the access takes place;

c) Submit the application dossier to the competent authority specified in Clause 3 of this Article to apply for a permit to access genetic resources.

3. The permit for accessing genetic resources is as follows:

a) The Ministry of Natural Resources and Environment issues permits for accessing genetic resources for prioritized protected species;

b) The People's Committee of the province issues permits for accessing genetic resources for other cases not covered by point a of this clause;

c) Within forty-five days from the date of receiving a complete and valid dossier, the authority specified in points a and b of this clause shall be responsible for reviewing and issuing the permit for accessing genetic resources. In case of non-issuance, a written notification must be sent to the organization or individual who applied for the permit, specifying the reasons;

d) The permit for accessing genetic resources must be sent to the People's Committee of the commune where the genetic material is investigated and collected, and to the organization or individual managing the genetic resources as the subject of access. A permit for accessing genetic resources issued by the People's Committee of the province must also be sent to the Ministry of Natural Resources and Environment.

1. Benefits derived from access to genetic resources shall be shared with relevant parties through the following forms:

a) Sharing research and development results, production of commercial products, and profits from the business of commercial products derived from genetic resources;

b) Research and development cooperation on genetic resources; scientific and technical information related to genetic resources;

c) Transfer of technology for developing genetic resources to the provider of genetic resources;

d) Training and enhancing research and development capacity on genetic resources;

đ) Contributing to local economic development, public works development, and poverty reduction support;

e) Direct sharing forms in cash or in kind;

g) Other sharing forms as agreed upon in the access agreement and stipulated in the access permit;

h) Intellectual property rights over creative results based on access to genetic resources in accordance with the laws on intellectual property;

2. The total benefits derived from access to genetic resources shared with relevant parties shall be determined through the licensing process and agreements between the parties but not less than 30% of the total converted monetary benefits.

3. The Ministry of Natural Resources and Environment shall take the lead and coordinate with the Ministry of Agriculture and Rural Development and the Ministry of Finance to issue a Joint Circular guiding the management and utilization of shared benefits from access to genetic resources managed by the State.

1. Ministries, agencies at the level of ministries, provincial People's Committees that have databases or information on genetic resources shall be responsible for providing such data to the Ministry of Natural Resources and Environment to build and manage the national database on genetic resources uniformly.

2. The State encourages relevant agencies, organizations, and individuals to share information on genetic resources to serve economic and social development.

3. National databases or information on genetic resources managed by state agencies must be disclosed to the public, except for classified information.

4. The Ministry of Natural Resources and Environment shall be responsible for publicly disclosing the national database on genetic resources on the Ministry’s website so that organizations and individuals can access the information.

Article 21. Implementation clause

1. This Decree takes effect from July 30, 2010.

2. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairmen of People's Committees of provinces and centrally administered cities are responsible for implementing this Decree./.