Document ID: chunk:federal_register_of_legislation:C2024C00537:section:41
Version: federal_register_of_legislation:C2024C00537
Segment Type: section
Provision Reference: s 41
Character Range: 75414–77610

41  Essential derivation for PBR‑protected varieties—test growing
 (1) This section applies if:
 (a) an eligible person applies for a declaration under section 40 in relation to a plant variety (the initial variety) that another plant variety (the second variety) is essentially derived from the initial variety; and
 (b) in the course of that application the applicant establishes a prima facie case that the second variety is essentially derived from the initial variety.
 (1A) On the basis of information supplied by the applicant and the grantee of PBR in the second variety, the Registrar may decide that a test growing or further test growing is required to determine whether the prima facie case has been rebutted.
Note: A decision to require a test growing is reviewable by the ART under section 77.
 (1B) The Registrar must notify the decision to each of the following:
 (a) the applicant;
 (b) the grantee of PBR in the second variety.
 (2) The notification must require:
 (a) the applicant to supply the Registrar with sufficient plants or sufficient propagating material of plants of that variety and with any necessary information; and
 (b) the grantee of PBR in the second variety to supply the Registrar with sufficient plants or sufficient propagating material of plants of that second variety and with any necessary information;
to enable the Registrar to arrange a test growing.
 (3) After completion of the test growing, any propagating material of a variety used in, or resulting from, the test growing that is capable of being transported must be delivered to the person by whom propagating material of that variety was supplied for the purpose of the test growing.
 (4) All costs associated with the test growing must be paid by the person who, without the test growing, failed to rebut the prima facie case of essential derivation, whether or not the test growing led to rebuttal of that case.
 (5) If the Registrar requires a test growing or further test growing under this section, paragraph 40(8)(b) has effect as if the reference in that paragraph to 30 days after being so notified were a reference to 30 days after being notified of the results of the test growing.