Thông tư 18/2012/TT-BKHCN

CIRCULAR

GUIDING ON CRITERIA AND PROCESS TO DEFINE TECHNOLOGIES UNDER THE LIST OF TECHNOLOGIES ENCOURAGED FOR TRANSFER, THE LIST OF TECHNOLOGIES RESTRICTED FROM TRANSFER AND THE LIST OF TECHNOLOGIES BANNED FROM TRANSFER

Pursuant to the Law on Technology Transfer;

Pursuant to the Government's Decree No. 28/2008/ND-CP of March 14, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Science and Technology;

Pursuant to Clause 3, Article 5 of the Government's Decree No. 133/2008/ND-CP of December 31, 2008, detailing and guiding a number of articles of the Law on Technology Transfer;

At the proposal of the director of the Department of Technology Appraisal, Examination and Assessment;

The Minister of Science and Technology promulgates this Circular to guide on criteria and process to define technologies under the List of technologies encouraged for transfer, the List of technologies restricted from transfer and the List of technologies banned from transfer as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides criteria and process to define technologies and appraisal of proposals of ministries, ministerial-level agencies and government-attached agencies for amendments or supplementations to the List of technologies encouraged for transfer, the List of technologies restricted from transfer and the List of technologies banned from transfer specified in Clause 1, Article 5 of the Government's Decree No. 133/2008/ND-CP of December 31, 2008, detailing and guiding a number of articles of the Law on Technology Transfer.

Article 2. Subjects of application

This Circular is applied to ministries, ministerial-level agencies and government-attached agencies in defining technologies, proposing and appraising proposals for amendments or supplementations to the List of technologies encouraged for transfer, the List of technologies restricted from transfer and the List of technologies banned from transfer.

Article 3. Interpretation of terms

The terms in this Circular are construed as follows:

1. Technologies include solutions, processes or technical knows-how with or without accompanying instruments or facilities for altering resources into products.

2. The technology determination means an activity of examining specific technologies based on the criteria specified in this Circular for making dossiers to propose of amendments or supplementations to the List of technologies encouraged for transfer, the List of technologies restricted from transfer or the List of technologies banned from transfer.

3. Appraisal of technology lists includes the examination and selection of technologies in dossiers proposing amendments or supplementations of technologies to the List of technologies encouraged for transfer, the List of technologies restricted from transfer or the List of technologies banned from transfer in conformity with the socio-economic development situation and state management requirements.

Chapter II

CRITERIA TO DEFINE TECHNOLOGY

Article 4. Criteria to define technologies under the List of technologies encouraged for transfer

1. For technologies transferred from abroad into Vietnam and transferred within the Vietnamese territory:

a/ High technologies prioritized for development investment shall be approved by  The Prime Minister according to the Law on High Technologies;

b/ Advanced technologies that satisfy one of the following requirements:

- Turning out products of superior quality and high competitiveness in comparison with existing technologies of the same type;

- Creating trades producing, manufacturing, processing, rearing or planting new products which have not yet available in Vietnam;

- Saving energy and raw materials in comparison with existing technologies of the same type;

- Producing or using new energies, renewable energies, storing energies with high productivity;

- Being clean and environment-friendly production with high economic benefits;

- Creating medical machines and equipment in service for examination, treatment and human health protection, population work or epidemic prevention and control;

- Having detecting, processing and forecasting functions for natural disaster prevention and combat, labor safety support, rescue, salvage and environmental protection;

- Being applications for development and modernization of agriculture, forestry, fishery and traditional crafts.

2. For technologies transferred from Vietnam abroad:

Production technologies which use raw materials being home-made products, semi-products or supplies and being currently promoted by the State for production and export.

Article 5. Criteria to define technologies under the List of technologies restricted from transfer

1. For technologies transferred from abroad into Vietnam and transferred within the Vietnamese territory:

a/ Technologies using old machines and equipment or technologies making out old-generation products that are not energy-efficient;

b/ Technologies making out products with the use of toxic and hazardous chemicals or discharge of wastes exceeding national technical regulations on environment and requiring an attached treatment system;

c/ Technologies making out products by genetic modification method;

d/ Technologies using radioactive substances or creating radioactive substances;

dd/ Technologies making out products which directly affect human health: cosmetics, pharmaceuticals, functional foods and drinks;

e/ Technologies using domestic natural resources which are necessary to be restricted from exploitation or which are not yet planned for use;

g/ Technologies making out products which affect the fine traditions, customs and habits, morality and national culture;

h/ Technologies making out products in service for defense or combined defense and civil purposes;

i/ Other specific production technologies and services subject to state’s special management and technologies restricted under treaties to which Vietnam is a contracting party.

2. For technologies transferred from Vietnam abroad:

a/ Technologies making out traditional products with high national identity; technologies produced according to traditional experience or know-how or with the use of Vietnam's rare, precious and typical varieties, minerals or materials;

b/ Rearing, planting and processing technologies in agriculture, forestry and fishery with products being Vietnam's key and typical export commodities.

Article 6. Criteria to define technologies under the List of technologies banned from transfer

1. Technologies failing to ensure labor safety and labor sanitation as prescribed by law;

2. Technologies producing wastes harmful to people, flora and fauna ecosystems and the environment;

3. Technologies causing wastage of natural resources; exploiting minerals with low return rates in comparison with other countries;

4. Backward and low-efficient technologies consuming lots of raw materials and fuels; technologies with economic-technical norms of production process which are much lower than domestically-existing technologies;

5. Technologies producing, using radioactive substances while have not yet had adequate proof that the danger of such radioactive substances has been controlled under regulations;

6. Technologies marking out products which adversely affect Vietnam's defense, security, social order and safety, culture and fine traditions;

7. Technologies under the List of state secrets, unless otherwise provided for by law;

8. Technologies banned from transfer under treaties to which Vietnam is a contracting party.

Chapter III

PROCESS OF TECHNOLOGY DETERMINATION AND APPRAISAL OF PROPOSALS FOR AMENDMENTS, SUPPLEMENTATIONS TO TECHNOLOGY LISTS

Article 7. Technology determination process

1. Annually, ministries, ministerial-level agencies and government-attached agencies (hereinafter referred to as agencies) shall, based on the criteria specified in Article 4, Article 5 and Article 6 of this Circular and their management scope, review and define technologies which need to be modified or added to the List of technologies encouraged for transfer, the List of technologies restricted from transfer and the List of technologies banned from transfer (hereinafter referred to as technology lists).

2. Technology determination results must be made into the list consisting of technologies being proposed for amendment and supplementation to technology lists.

3. A dossier of proposal for amendment, supplementation must be made into one set to be sent to the Ministry of Science and Technology before March 31 every year and includes:

a/ A written proposal for amendment, supplementation;

b/ A list of technologies proposed for amendment and supplementation to technology lists;

c/ Explanations, relevant information and documents of each specific technology, which prove the necessity of amendment, supplementation.

4. Within 15 working days after receiving a proposal dossier, the Ministry of Science and Technology shall examine, summarize and classify the dossier. If the dossier is invalid, the Ministry of Science and Technology shall request in writing agencies to supplement necessary information for completion of the dossier, specifying the time limit for such supplementation.

Article 8. Process of appraising technology lists

1. Periodically, before April 30 every year, the Ministry of Science and Technology shall form a state-level scientific council (hereinafter referred to as appraisal council) to appraise dossiers of proposal for amendment and/or supplementation.

2. The Appraisal Council shall hold meetings to appraise proposals for amendment and/or supplementation of agencies and conclude on amendment and/or supplementation to technology lists.

3. Within 5 working days after ending its final meeting, the Appraisal Council shall summarize appraisal results and complete draft lists of technologies to be amended, added and report them to the Minister of Science and Technology.

4. Within 10 working days after receiving an appraisal report, the Minister of Science and Technology shall submit to the Government for promulgation the List of technologies encouraged for transfer, List of technologies restricted from transfer and List of technologies banned from transfer have just amended, added.

Article 9. Appraisal Council for amendment, supplementation to technology lists

1. The Minister of Science and Technology shall issue a decision to establish the Appraisal Council for amendment and supplementation to technology lists.

2. The Appraisal Council shall consider proposals, assessments and select technologies which are necessary to be amended, added to technology lists.

3. The Appraisal Council shall work on the principles of collegiality and public and direct discussion among its members and conclusion by majority vote.

4. The Appraisal Council has an odd number of members including:

a/ The president of Council;

b/ A vice president of Council;

c/ Members of Council being scientific and technological management representatives of ministries and sectors, and experts;

d/ In each specialized sector, there must be at least one expert with intensive professional knowledge and experience acting as a critical member;

e/ A representative of the Ministry of Science and Technology as a member-cum-secretary.

5. The member-cum-secretary of Council shall assist the president of Council and perform the following tasks:

a/ To receive dossiers and sum up technologies proposed to be amended and added to technology lists, enclosed with relevant documents;

b/ To prepare and supply relevant dossiers and documents to the Council's members for research; to prepare necessary conditions for the Council to conduct meetings;

c/ To summarize opinions, comments of the Council's members and conclusions of the Council's session, and make minutes of the Council's meetings;

d/ To receive and preserve dossiers and the Council's appraisal results and carry out necessary procedures at the request of the Council's president.

Article 10. Activities of the Appraisal Council

1. Conditions for holding a meeting of the Appraisal Council:

a/ The president or vice president is present;

b/ At least two-thirds of the Council's members are present, in which has at least one critical member with professional knowledge in the technologies proposed to be amended, added;

c/ There are sufficient dossiers and documents relating to technologies under the list of technologies proposed to be amended, added.

2. An Appraisal Council’s meeting is conducted in the following sequence:

a/ Critical members present their remarks;

b/ The other members present their remarks and evaluations;

c/ The Council discuss, fill in evaluation votes and reach agreement on their conclusions. These conclusions must be agreed by at least two-thirds of the members of the Council officially present at the meeting;

d/ The president of Council informs the Council's conclusions;

e/ The Council's secretary makes the meeting's minutes with the signature of the Council's president, enclosed with all evaluation votes of the Council's members.

Article 11. Funds for appraisal

1. Funds for appraising technology lists are taken from funds for scientific and technological non-business activities which are annually allocated by the Ministry of Science and Technology for units as focal point in implementation.

2. Spending contents and levels comply with Part II of Joint Circular No. 44/2007/TTLT-BTC-BKHCN of May 07, 2007, of the Ministry of Finance and the Ministry of Science and Technology, and on the basis of conformity with state budget expenditure estimates annually allocated. In case the Joint Circular No. 44/2007/TTLT-BTC-BKHCN is amended or replaced by new circulars, the latter circulars will be applied.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 12. Organization of implementation

The Ministry of Science and Technology assigns the Department for Technology Appraisal, Examination and Assessment to act as the focal point in organizing the implementation of this Circular.

Article 13. Effectiveness

This Circular takes effect 45 days from the date of its signing.

In the course of implementation, Ministries, ministerial-level agencies and government-attached agencies should report any problems arising (if any) to the Ministry of Science and Technology for conformable amendment and supplementation.