Circular No. 18/2012/TT-BKHCN dated October 2, 2012 of the Ministry of Science and Technology guiding criteria and process of identifying technologies on the List of technologies encouraged for transfer, the List of technologies restricted from transfer and the List of technologies banned from transfer

THE MINISTRY OF SCIENCE AND TECHNOLOGY

Circular No. 18/2012/TT-BKHCN of October 2, 2012, guiding criteria and process of identifying technologies on 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 for Technology Assessment, Appraisal and Inspection;

The Minister of Science and Technology issues this Circular to guide criteria and process of identifying technologies on 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 of identifying technologies and appraisal of modification proposals of ministries, ministerial-level agencies and government-attached agencies for 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 applies to ministries, ministerial-level agencies and government-attached agencies in identifying technologies, proposing and appraising proposals on modification of 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 referred to in this Circular are construed as follows:

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

2. Technology identification means an activity of examining specific technologies based on the criteria specified in this Circular for making dossiers to propose modification and addition 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.

3. Appraisal of technology lists means the examination and selection of technologies from dossiers proposing modification and addition 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

TECHNOLOGY IDENTIFICATION CRITERIA

Article 4. Criteria for identifying technologies on the List of technologies encouraged for transfer

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

a/ The Prime Minister-approved high technologies prioritized for development investment under the Law on High Technologies;

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

- Turning out products of superior quality and high competitiveness compared to existing technologies of the same type;

- Creating industries or trades which produce, manufacture, process, rear or grow new products not yet available in Vietnam;

- Conserving energy and raw materials compared to existing technologies of the same type;

- Producing or using new energy, renewable energy and storing high-efficiency energy;

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

- Creating medical machines and equipment for people’s health care, 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;

- Developing and modernizing agriculture, forestry, fishery and traditional crafts.

2. For technologies transferred from Vietnam abroad:

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

Article 5. Criteria for identifying technologies on 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 turning out old-generation products that are not energy-efficient;

b/ Technologies turning out products with the use of toxic and hazardous chemicals or with discharged wastes exceeding national technical regulations on environment and requiring a treatment system;

c/ Technologies turning out products by genetic modification;

d/ Technologies using radioactive substances or creating radioactive substances;

e/ Technologies turning out products which directly affect people’s health: cosmetics, pharmaceuticals, functional foods and drinks;

f/ Technologies using domestic natural resources which are currently restricted from exploitation or which are not yet planned for use;

g/ Technologies turning out products which affect the nation’s fine traditions, customs and habits, morality and culture;

h/ Technologies turning out products for defense or combined defense and civil  purposes;

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

2. For technologies transferred from Vietnam abroad:

a/ Technologies turning out traditional products with high national traits; 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, farming and processing technologies in agriculture, forestry and fishery to create products being Vietnam’s major and typical export commodities.

Article 6. Criteria for identifying technologies on the List of technologies banned from transfer

1. Technologies failing to ensure labor safety and labor sanitation under law;

2. Technologies producing wastes harmful to people, fauna and flora eco-systems and the environment;

3. Technologies consuming natural resources wastefully; exploiting minerals with low return rates compared to other countries;

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

5. Technologies producing and using radioactive substances without adequate proof that the danger of such radioactive substances can be controlled under regulations;

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

7. Technologies on 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 IDENTIFYING TECHNOLOGIES AND APPRAISING PROPOSALS TO MODIFY TECHNOLOGY LISTS

Article 7. Technology identification process

1. Annually, ministries, ministerial-level agencies and government-attached agencies (below referred to as agencies) shall, based on the criteria specified in Articles 4, 5 and 6 of this Circular and their management scope, review and identify technologies 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 (below referred to as technology lists).

2. Technology identification results must be made in the form of lists of technologies to be modified or added to technology lists.

3. A dossier of proposal for modification must be made in one set to be sent to the Ministry of Science and Technology before March 31 every year and comprises:

a/ A written proposal for modification;

b/ A list of technologies to be modified or added to technology lists;

c/ Relevant explanations, information and documents proving the necessity to modify or add each specific technology.

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 to complete the dossier, specifying the time limit for such supplementation.

Article 8. Process of appraising technology lists

1. Regularly before April 30 every year, the Ministry of Science and Technology shall form a state-level scientific council (below referred to as appraisal council) to appraise dossiers of proposal for modification and addition.

2. The Appraisal Council shall hold meetings to appraise proposals of agencies and conclude on modification of technology lists.

3. Within 5 working days after its final meeting, the Appraisal Council shall summarize appraisal results and complete draft lists of technologies to be modified and 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 modified List of technologies encouraged for transfer, List of technologies restricted from transfer and List of  technologies banned from transfer.

Article 9. Appraisal Council for modification of technology lists

1. The Minister of Science and Technology shall issue a decision to form the Appraisal Council for modification of technology lists.

2. The Appraisal Council shall consider proposals, evaluate and select technologies to be modified and added to technology lists.

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

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

a/ The president;

b/ A vice president;

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

d/ In each sector, there must be at least one expert with proficient 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 Council’s member-cum-secretary shall assist the president and perform the following tasks:

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

b/ To prepare and supply relevant dossiers and documents to the Council’s members; to prepare necessary conditions for the Council to meet;

c/ To summarize opinions of the Council’s members and conclusions of the Council’s session, and make minutes of the Council’s meeting;

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, including at least one critical member with professional knowledge in the technologies proposed to be modified;

c/ There are sufficient dossiers and documents related to technologies on the list of technologies proposed to be modified.

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

a/ Critical members present their remarks;

b/ The meeting participants present their remarks and evaluations;

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

d/ The Council’s president announces the Council’s conclusions;

e/ The Council’s secretary prepares the meeting’s minutes with the signature of the Council’s president, enclosed with evaluation cards of all of the Council’s members.

Article 11. Funds for appraisal

1. Funds for appraising technology lists come from funds for scientific and technological non-business activities annually allocated by the Ministry of Science and Technology for responsible units for implementation.

2. Spending items and levels comply with Part II of Joint Circular No. 44/2007/TTLT-BTC-BKHCN of May 7, 2007, of the Ministry of Finance and the Ministry of Science and Technology, on the basis of annually allocated state budget expenditure estimates. In case Joint Circular No. 44/2007/TTLT-BTC-BKHCN is amended or replaced by another circular, the latter will apply.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 12. Organization of implementation

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

Article 13. Effect

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

Ministries, ministerial-level agencies and government-attached agencies should report any problems arising in the course of implementation to the Ministry of Science and Technology for amendment and supplementation as appropriate.-

For the Minister of Science and Technology
Deputy Minister
CHU NGOC ANH