Document ID: chunk:federal_register_of_legislation:C2024C00537:section:41e
Version: federal_register_of_legislation:C2024C00537
Segment Type: section
Provision Reference: s 41E
Character Range: 89042–91486

41E  Essential derivation for non‑PBR‑protected varieties—test growing
 (1) For the purposes of considering an application under section 41A for a declaration under section 41D that a plant variety (the second variety) is essentially derived from another plant variety (the initial variety), the Registrar may conduct a test growing or further test growing to determine whether, on the balance of probabilities, the second variety is:
 (a) essentially derived from the initial variety; and
 (b) a registrable plant variety within the meaning of section 43.
Note: A decision under this section is reviewable by the ART under section 77.
 (2) The Registrar must notify a decision to conduct a test growing to:
 (a) the applicant; and
 (b) each interested person who is required to be given an opportunity to be heard under subsection 41C(1).
 (3) To enable the Registrar to arrange a test growing, the notification must require:
 (a) the applicant, within a reasonable period specified in the notification, to supply the Registrar with sufficient plants or sufficient propagating material of plants of the initial variety, and with any necessary information; and
 (b) each interested person notified under paragraph (2)(b), within a reasonable period specified in the notification, to supply the Registrar with sufficient plants or sufficient propagating material of plants of the second variety, and with any necessary information.
 (4) The notification must include a statement of the effect of subsections (5) to (8).
 (5) Despite subsection 41D(2), the Registrar must, under paragraph 41D(1)(b), refuse to make the declaration applied for if the applicant fails to comply with a requirement under paragraph (3)(a) of this section.
 (6) For the purposes of making a decision under subsection 41D(1) in relation to the application, the Registrar may draw an inference that is unfavourable to the interests of a person notified under paragraph (2)(b) of this section if the person fails to comply with a requirement under paragraph (3)(b) of this section.
 (7) After completion of the test growing, the Registrar must ensure that any propagating material of a variety used in, or resulting from, the test growing that is capable of being transported is delivered to the person by whom propagating material of that variety was supplied for the purpose of the test growing.
 (8) The applicant must pay all costs associated with the test growing.