After reviewing the draft Federal Law "On Seed Growing" (hereinafter referred to as the Draft Law), the Union of Potato and Vegetable Market Participants (Potato Union) reports the following.
- On the scope of application of the federal law and the circle of persons to whom the federal law applies
1.1. According to the preamble of the Draft Law, the law establishes the legal basis for the production, storage, sale, transportation, import into the Russian Federation and export from the Russian Federation and the use of seeds (planting material) in the Russian Federation and in other territories over which the Russian Federation carries out jurisdiction in accordance with the laws of the Russian Federation and international law.
However, it is not clear which “other territories over which the Russian Federation exercises jurisdiction ...” are in question. This concept is used mainly in by-laws. Its use in some federal laws that do not disclose this concept forces the competent authorities to give appropriate explanations in the future, as, for example, the Ministry of Finance of the Russian Federation did it in a letter dated 02.08.2011 No. 03-07-15 / 72 to the request of the Federal Tax Service dated March 20.03.2011, 4 No. KE-3-4883 / XNUMX.
We suggest clarifying Art. 1 “Basic concepts used in this Federal Law”, which is understood as “other territories over which the Russian Federation exercises jurisdiction ...”.
1.2. The paragraph of the second preamble of the Draft Law extends the effect of the Draft Law to organizations, regardless of their organizational and legal forms and forms of ownership, as well as individuals, including individual entrepreneurs engaged in seed production and other activities specified in the first paragraph of the preamble. Article 21 of the Draft Law also establishes that "seed producers are individuals and legal entities, individual entrepreneurs ... who produce seeds for subsequent sale ...". The corresponding provisions are also contained in other articles of the Draft Law.
It seems that the authors of the Draft Law did not take into account that the purpose of implementation is to make a profit, and this is one of the main features of entrepreneurial activity (clause 1 of article 2 of the Civil Code of the Russian Federation). Citizens (individuals) can engage in entrepreneurial activity from the moment of state registration as an individual entrepreneur, with the exception of cases provided for by law (Article 23 of the Civil Code of the Russian Federation), in particular, self-employed (Federal Law "On conducting an experiment to establish a special tax regime" Tax on professional income "dated 27.11.2018 N 422-FZ).
Consequently, individuals who do not have the status of an individual entrepreneur and self-employed and engaged in seed production for personal consumption should be removed from the jurisdiction of the Draft Law.
We propose in the preamble of the Bill to indicate that the law applies to legal entities and individuals engaged in entrepreneurial activities in the production, storage, sale, transportation ... of seeds (planting material), thus excluding from the scope of the law individuals engaged in seed production for personal purposes.
1.3. The Potato Union objects to the licensing of activities for the production, storage, sale, transportation of ... seeds (planting material), considering this requirement excessive, which does not allow solving the problem of "increasing efficiency in the field of selection, as well as ensuring a high level of production, performance of work on production, cultivation , storage and sale of seeds ... "(paragraph three, p. 14 of the explanatory note to the draft federal law" On seed production ").
This conclusion follows from the analysis of the Federal Law "On licensing certain types of activities" dated 04.05.2011 N 99-FZ, which considers a license as a permit to engage in certain activities, establishes a list of licensing requirements and prohibits the attribution of licensing requirements to specific types and volumes of planned production, as well as requirements for the volume of work performed, services provided.
Requirements for varietal and sowing qualities of seeds are established in a different (not licensed) manner.
An analysis of the legislation also allows us to conclude that from the licensing sphere, as a rule, those activities are excluded that state regulation of which can and should be fully carried out by state control bodies and supervisory authorities due to functional responsibilities by other methods, including the application of state standards, standards, certification, declarations of conformity, accreditation, sanitary, construction and other rules and norms.
In addition, from Art. 20 and Art. 21 of the Draft Law that not only a license is needed for the right to engage in seed production, which Art. 1 of the Bill considers as an independent type of activity, but also for services for storage, transportation, sale of ... seeds (planting material). Apparently, the developers of the Bill proceeded from the fact that it was the seed growers who should carry out all possible actions related to the circulation of seeds, while it was not taken into account that the storage, sale, transportation of seeds (planting material), etc. often involved in other participants in civilian traffic. Should they also receive an appropriate license, or is this responsibility solely for the seed breeders? If so, then why?
Thus, the introduction of licensing of activities for the production, storage, sale, transportation ... of seeds (planting material) cannot be considered as an effective measure against the appearance of poor-quality or falsified products in the civil circulation, but can lead to unjustified expenses of seed breeders (and possibly other participants) civil turnover), as well as the creation of additional barriers to engage in these activities.
1.4. Article 21 of the Draft Law establishes that "the constituent documents of legal entities engaged in seed production determine the subject and purpose of their activities."
According to paragraph 4 of Art. 52 of the Civil Code of the Russian Federation, the subject and objectives of the legal entity should be contained in the constituent documents of non-profit organizations, the charters of unitary enterprises and in cases provided for by law. The latter applies to organizations that, while being commercial, are nevertheless endowed with special legal capacity (for example, banks, insurance companies, etc.) that are forbidden to engage in other types of commercial activities other than those specified in federal laws governing their activities . Thus, the interests of the recipients of these services are protected, the potential for abuse in socially significant areas is screened, including the possibility of channeling funds to other areas of activity, other than those specified in the relevant law, which should be reflected in the charters of these commercial organizations.
Seed producers are commercial legal entities, individual entrepreneurs, who, as a rule, are engaged in other activities in addition to seed production, including the production of various crops in industrial volumes, the processing of their own and other agricultural products, etc. Therefore, it is not clear for what purpose it is proposed to introduce an appropriate norm, while the developers of the Draft Law did not take into account the costs (including those associated with holding general meetings) that seed producers would have to bear.
2. About compulsory certification
The draft law establishes the mandatory certification of seeds “imported into the territory of the Russian Federation, in circulation or intended for sale”.
While supporting the introduction of mandatory certification of seeds in general, the Potato Union draws attention to the fact that the Draft Law does not take into account the main provisions of the Federal Law "On Technical Regulation" of December 27.12.2002, 184 N 184-FZ (hereinafter - Law N XNUMX-FZ), namely.
According to Art. 2 of Law No. 184-FZ, certification is the form of certification by the certification body of the compliance of facilities with the requirements of technical regulations, standardization documents or the terms of contracts.
In accordance with Part 1 of Art. 20 of Law N 184-ФЗ confirmation of conformity in the territory of the Russian Federation may be voluntary or mandatory, with mandatory confirmation of compliance being carried out only in cases established by the relevant technical regulation, and exclusively for compliance with the requirements of the technical regulation (paragraph 1 of article 23 of Law N 184-FZ).
Mandatory certification is carried out for the purposes established by Art. 6 of the Law N 184-FZ.
In accordance with paragraph 3 of Art. 46 of Law No. 184-FZ by Decree of the Government of the Russian Federation dated 01.12.2009 No. 982, the Unified List of Products subject to mandatory certification and the Unified List of Products, the conformity of which is confirmed in the form of a declaration of conformity, was approved. These lists do not contain seeds as products subject to mandatory certification.
These provisions, unfortunately, were not taken into account when working on the Draft Law, in connection with which the Draft Law contradicts Law No. 184-FZ.
In addition to the above, other provisions of Law N 184-FZ should have been taken into account.
For example, clause 3 of part 3 of Art. 4 of the Draft Law refers to the powers of the federal executive body responsible for the development of state policy and legal regulation in the field of seed production, laboratory research in the field of seed production and determination of varietal and sowing qualities of seeds through subordinate institutions. At the same time, the authors of the Draft Law did not take into account that conformity assessment is the subject of Law N 184-FZ, which establishes a provision according to which only one requirement is presented to certification bodies and testing laboratories (centers) performing work on conformity assessment (confirmation) - accreditation (v. 31). In turn, Art. 4 of the Federal Law "On accreditation in the national accreditation system" establishes that an accredited person is a legal entity or an individual, regardless of the organizational and legal form, or an individual entrepreneur who received accreditation in the manner prescribed by the specified federal law.
Consequently, the position of paragraph 3 of Part 3 of Art. 4 The bill needs to be clarified.
We also draw your attention to the fact that the introduction of mandatory certification requires a certain amount of time. So, in accordance with paragraph 10 of Art. 7 of Law No. 184-FZ, technical regulations adopted by a decree of the Government of the Russian Federation or a regulatory legal act of the federal executive body for technical regulation shall enter into force no earlier than six months from the date of its official publication. This requirement is not taken into account in the Draft Law when determining the time of entry into force of the Law.
The Potato Union believes that at the moment it is possible to solve the problem of preventing low-quality and non-certified seeds from entering the market, the problem of protecting the rights of breeders whose seeds are often illegally used in production, and therefore breeders are deprived of the opportunity to receive appropriate payments, perhaps in a different way than introducing a mandatory certification.
The Potato Union proposes, in accordance with Federal Law of 01.12.2007 N 315-FZ "On Self-Regulatory Organizations" (hereinafter - the Law on SRO), to unite producers of seeds of agricultural plants into self-regulatory organizations and to introduce into the Federal Law "On Seed Growing" provisions according to which the right to practice seed production will be owned exclusively by organizations that are members of self-regulatory organizations of seed producers (SRO seed growers).
In particular, in accordance with Part 2 of Article 1 of the Law on SROs, the Federal Law "On Seed Growing" should include norms governing the specifics of the acquisition, termination of the status of SRO seed growers, the legal status of these self-regulatory organizations, activities, procedure for admission to membership and termination membership in SROs of seed producers, the procedure for exercising control by SROs of seed producers over the activities of their members and the application of disciplinary measures against their members, including compliance with the requirements for seed certification and the prohibition of the circulation of uncertified seeds, as well as the procedure for exercising state supervision over the observance of the SROs of seed producers with the requirements of the legislation of the Russian Federation regulating activities related to the production of seeds, and the legislation of the Russian Federation on self-regulatory organizations.
In this case, many provisions of the Bill regarding requirements. presented to seed producers can be attributed to SRO. In particular, this applies to the provisions of Art. 19 “Requirements for the production of seeds of agricultural plants” in terms of the availability of information that the seed producer must retain for a certain time. In turn, each RNO, which will accumulate this information, will transmit it to the Register of seed producers (planting material).
It seems that compulsory membership in a self-regulatory organization will free the market of seed producers from unscrupulous participants, obtain reliable information about seed producers of agricultural plants, their quantity, exercise intra-professional control over their activities, control over the observance of license agreements by seed producers, including compliance with payments. established by these agreements, and will also significantly reduce the turnover of uncertified seeds.
3. About genetic passports
In accordance with Art. 1 of the Bill, a genetic passport is defined as “a document created on the basis of an analysis of a DNA sample of a variety or hybrid of an agricultural plant”.
This definition cannot be considered satisfactory. There is no information on the type and place of origin of the document, information on the methodology for its creation, the volume and depth of the information provided. There is no information what type / types of molecular markers will be used for “analysis of the DNA sample of the variety”.
The draft law does not determine how the unification / standardization of the methods for “analysis of a DNA sample of a variety” will be carried out in Russia and other countries.
We believe that the requirement to provide a genetic passport may lead to trade disputes between Russia and foreign countries, since only homogeneity, distinctiveness, stability (DUS) tests are recognized as legitimate for all UPOV members.
Perhaps the term “genetic passport” can be reasonably replaced by the term “DNA-certification”, which we propose to consider as the use of various generally recognized certified technologies of DNA markers for identification and confirmation of varietal (hybrid) affiliation of agricultural plants registered in the State Register of Selection Achievements Approved for Use , and lots of seeds of forest plants in the Russian Federation.
The Potato Union is currently proposing the deletion of provisions relating to genetic passports from the Bill.
4. On the new powers, rights and obligations of public authorities
The Potato Union believes that the introduction into the Bill of new powers, rights and obligations of state authorities and the proposed procedure for their implementation in some cases is excessive, needs additional reflection and processing. In particular:
4.1. The bill gives the federal executive authority the right to exercise control and supervision functions in the field of seed production, but does not define which functions are control and which are supervisory. What function (control or supervisory), for example, is the analysis of risks in the field of seed production related to the circulation of seeds, which is referred to in paragraph 4 of Part 4 of Art. 4 Bills? What risks are we talking about? The same issues are not covered in Art. 40 of the Bill. The provisions are clearly declarative in nature and are an unsuccessful copy of the corresponding provisions of the Federal Law "On Plant Quarantine".
4.2. It is not clear what is meant by scheduled inspections during the implementation of state control (supervision) in the field of seed production, for which the relevant federal executive body should draw up an annual plan of planned inspections (paragraph 3 of Part 1 of Article 6 of the Draft Law).
4.3. How to understand the obligation of the relevant federal executive body to post publicly available on the Internet information about the register of zones, growing sites for the Russian Federation (it is assumed that the Russian Federation will act as a customer as a subject of civil turnover?) Of seeds (planting material), seed production (there is no concept in the Draft Law) and located in foreign states, groups of foreign states (what is meant by a "group of states" for the purpose of applying this law)?
4.4. We believe that the authorization of the Rosselkhoznadzor to organize the assessment of crops (plantings), seeds of agricultural plants for the presence of genetically modified organisms in the crops of agricultural plants and seeds of agricultural plants is excessive. The explanatory note in the Draft Law does not contain data indicating both the presence of such facts and their quantity, and, therefore, it is impossible to assess the need to introduce the specified control functions.
4.5. It is not clear how the following provision of paragraph 3 of Art. 34 Bills:
When importing seeds into the territory of the Russian Federation, certificates, genetic passports and documents on the quality of seeds of exporting countries are recognized, subject to preliminary audit (inspection control) of seed testing laboratories to confirm competence, research methods and results, followed by re-issuance of certificates of the Russian Federation.
If it is a preliminary audit of the laboratory of the exporting country, how will it be implemented?
If we mean a testing laboratory located in Russia and accredited in accordance with the legislation of the Russian Federation, then this requirement is excessive.
And so on.
In addition, we draw attention to the fact that in some cases it may seem that the Draft Law gives the federal executive body, which exercises control and supervision functions in the field of seed production, the right to provide services to legal entities and individuals, which is contrary to the legislation of the Russian Federation.
In particular, the basis for such a conclusion follows from the context of paragraphs 3 and 4 of Art. 28 Bills:
“The determination of the presence of genetically modified organisms in the crops of agricultural plants and seeds of agricultural plants is carried out by the federal executive body, which exercises control and supervision functions in the field of seed production, at the expense of the federal budget when implementing control measures.
The determination of the presence of genetically modified organisms in crops of agricultural plants and plant seeds at the request of citizens, legal entities and the destruction of genetically modified organisms are carried out at the expense of citizens and legal entities. ”
We believe that the provisions of the Draft regarding the vesting of new powers, rights and obligations of state authorities, as well as the procedure for their implementation, in some cases require additional reflection and processing.
5. Article by article
5.1. In paragraph 2 of Article 9, “Testing and Evaluation of Varieties or Hybrids for Economic Utility”, indicate that the yield as a criterion for a standard variety, a standard hybrid for economically useful characteristics and (or) properties is determined in accordance with the direction of use of the variety (hybrid).
5.2. Paragraph 3 of Art. 13 “Reproduction seeds” shall be stated as follows: “Hybrid seeds of the first generation are reproduction seeds (for potato seeds - no more than the second reproduction).
5.3. Article 17 “Scheme for the production of seeds of a variety (hybrid) of agricultural plants”, with the exception of the second paragraph “The conservation of a variety or hybrid of agricultural plants is carried out by the originator of a variety or hybrid,” to be excluded from the text of the Bill as having no legal significance.
The second paragraph shall be transferred to another article of the Bill.
5.4. Article 18 “Scientific support of seed production” shall be excluded from the text of the Bill as not having legal significance.
5.5. Article 19. “Requirements for the production of seeds of agricultural plants” to read as follows:
“For the production of seeds, seeds must be used, varietal and sowing, they comply with the requirements of normative documents in the field of seed production, approved by the federal executive body responsible for the development of state policy and legal regulation in the field of seed production, confirmed by a document of conformity.
It is forbidden to use seeds (planting material) for sowing (planting) for production purposes, which are clogged or infected with quarantine objects, with the exception of cases provided for by the rules and regulations for ensuring plant quarantine. ”
5.6. Article 20 “Features of the production of certain categories of seeds” to state in the following edition (subject to the introduction of the chapter on SRO):
Original, elite and reproductive seeds can only be produced by seed producers - members of SRO seed producers (seed breeders).
Seeds of certain categories of forest plants are produced in the manner established by the federal executive body authorized by the Government of the Russian Federation.
5.6. Article 22. "Special zones for the production of seeds of agricultural plants."
It appears that the content of Art. 22 of the Draft Law directly depends on what issues the order established by the Government of the Russian Federation will decide, which is proposed to be determined in advance.
We believe that the specified procedure should contain, in particular, a list of documents presented in order to establish a special zone, the procedure for passing documents, the timing of the decision, issues of settlement of possible disputes in the establishment of special zones. These requirements must be uniform in the territory of the Russian Federation, as it is, for example, established in relation to the issue of redemption of land from state ownership. And the requirements for the special zones themselves should be established by the constituent entities of the Russian Federation depending on the plant variety, climatic and other conditions of the area in which the applicant requests to establish a special zone. The relevance of the establishment of special zones for seed production to the jurisdiction of the constituent entities of the Russian Federation will contribute not only to the creation of favorable conditions for seed production, but also to the protection of the interests of seed growers from dishonest actions by owners of neighboring land plots.
And most importantly - the desire to establish a special zone should be expressed precisely by the seed producer. In this regard, documents should initially be submitted to the authorized body of the constituent entity of the Russian Federation, which should also monitor compliance with the requirements for the special zone. Information on the establishment of a special zone must be received by the authorized federal executive body.
5.6. Article 23 “Federal state information system in the field of seed production of agricultural plants” to read as follows:
"The federal state information system in the field of seed production of agricultural plants (hereinafter - the information system) is created by the federal executive body responsible for the development of state policy and legal regulation in the field of seed production in order to ensure the traceability of seeds of agricultural plants, starting from the first producer of the corresponding batch seeds to its final consumer, as well as bringing this information to the seed producers of agricultural plants. The provision of information contained in the information system is carried out in electronic form free of charge.
The list of information to be placed in the information system, the list of persons obliged to provide it in order to be placed in the information system, the forms and procedure for its receipt, the list of persons entitled to receive this information, are established by resolution of the Government of the Russian Federation. ”
5.7. Article 25 “Seed insurance funds” shall be renamed to: “Forest plant seed insurance funds”, since the voluntary establishment of forest plant insurance funds needs to be regulated differently. In particular: a seed producer sends part of the crop to an insurance fund. Does the fund have to accept it? What time frame? Where should the seeds be stored and, accordingly, who is responsible for their safety? Other possible questions.
5.8. Article 26 “Harvesting, processing, storage and use of seeds” needs to be processed.
In particular, we believe that seed producers have the right to decide independently whether or not to plant seeds whose varietal and sowing qualities do not meet the requirements for varietal and sowing seed quality indicators. Perhaps for personal use. For the seed purchaser, the main thing is the confirmation of seed compliance. Can he buy seeds, that the conformity is not confirmed? Maybe. This question needs to be understood.
The Potato Union proposes to delete paragraph 5 of Art. 26 of the Draft Law prohibiting the import of seeds and planting material into the Russian Federation for the purpose of their use for sowing and planting from foreign states or groups of foreign states, without the implementation of the federal executive body exercising the functions of control in the field of seed production in relation to seeds of agricultural plants, control in places of cultivation, production (including processing), shipment of lots of seeds.
As the last year has shown, the implementation of this provision is extremely difficult, since the condition for the implementation of control actions on the territory of foreign states or groups of foreign states requires the consent of the competent authorities of these states, which these bodies are not required to give. There are no international agreements on this issue. Based only on this fact, this provision should not be present in federal law. In addition, participants in the seed market consider these control functions redundant, since there are other mechanisms, including those recognized by the international community, for conducting control measures for imported seeds. So, in accordance with Part 13 of Art. 7 Federal Law “On State Regulation in the Field of Genetic Engineering” (hereinafter Law No. 86-FZ), the Rosselkhoznadzor is authorized to exercise control over the import into the territory of the Russian Federation of genetically modified organisms and seeds at checkpoints across the state border of the Russian Federation.
5.8. Article 28 and article 29 of the Draft Law, which establish requirements for the determination of varietal and sowing indicators of seed quality, as well as the presence of genetically engineered organisms in the crops of agricultural plants and seeds of agricultural plants, require processing.
The indicated norms are overloaded with borrowing, there are repetitions, there are provisions with which the Potato Union does not agree, for example, an indication in the Draft Law on the need for soil control.
5.9. Article 32 “Turnover of seed lots” shall be supplemented with a paragraph as follows:
“In the territory of the Russian Federation, the circulation of uncertified seeds, as well as seeds unregistered in the State Register of Selection Achievements Allowed for Use, and indicated in the list of agricultural crops approved by the Government of the Russian Federation, is prohibited.”
5.10. Article 33. Sale and transportation of seed lots.
It proposes to exclude paragraphs 3 and 4 of article from the text. 33 of the Bill allowing the transport of seeds in an empty state. The Potato Union believes that the transportation of ALL batches of seeds should be carried out in a packaged form.
5.11. Article 34 “Import into the Russian Federation and export from the Russian Federation”, in the opinion of the Potato Union, should be preserved in the current version of the Federal Law “On Seed Production”.
5.12. With regard to the provisions relating to state control (supervision) in the field of seed production, the position of the Potato Union is expressed above (paragraph 4 of this note).
5.13. Chapter 3 “Monitoring the condition of seeds (planting material) and seed production facilities.
As indicated earlier, the concept of “seed production objects” is not disclosed by the Bill.
The Potato Union proposes to exclude this chapter from the text of the Draft Law, since monitoring is a necessary tool for determining varietal and sowing indicators of seed quality (planting material), and manifests itself in the implementation of measures specified in Art. 28-30 of the Bill. In addition, monitoring is directly related to the implementation of the control and oversight functions that are carried out by the authorized federal executive body.
Norms of a bill similar to the norms of Ch. 3, make the normative act heavier without incurring any legal burden.
Hack and predictor Aviator
The draft Federal Law “On Seed Production” needs to be substantially revised, including in terms of bringing it into line with current legislation. The normative act should contain, in particular, norms on self-regulation in the field of seed production, which will allow the seed-growing community to control the circulation of seeds, compliance with the requirement to prohibit the circulation of uncertified seeds, etc.
After making the appropriate changes and additions, the draft Federal Law “On Seed Production can be resubmitted for discussion.
Chairman of the Union Lupekhin S.N.