State of Amapá (Brazil)

(Unofficial Private Translation)

LAW N^o 0388/97

Regulates under the instruments of access control to the biodiversity of

the state of Amapá and makes other provisions

THE GOVERNOR OF THE STATE OF AMAPÁ

I make known that the State Legislature of the State of Amapá decrees and sanctions the following law.

Art. 1 - Entrusts the Executive Power to preserve the diversity, integrity, and the defensible utilization of genetic resources located in the State of Amapá, and to inspect the entities dedicated to the resource as well as manipulation of genetic material, by taking in consideration the following principles:

I. Inalienability of the rights under biological diversity or the existing genetic resources in the territory of the state of Amapá,

II. participation of the local communities and indigenous people in decisions that have as their aim access to the genetic resources in the areas they occupy,

III. participation of the local communities and indigenous people in social and economic benefits resulting from the activities of access to the genetic resources located in the State of Amapá,

IV. protection and incentive to cultural variety by appraising the knowledge, innovations and practices of local communities concerning conservation, management, use, handling, and exploitation of biological or genetic diversity.

Art. 2 - The control, and the inspection of access to genetic resources is aimed at the protection , maintenance, and the defensible utilization of the natural patrimony of the State of Amapá, subjecting natural persons and legal entities that exploit, use make use, store, trade or release or those that bring in genetic resources in the State of Amapá, to the provisions of this law.

Art. 3 - This law applies to terrestrial, coastal, and marine biological and genetic resources existing in the State of Amapá.

Art. 4 - This Law does not apply:

I. to the whole, parts and components of the human genetic code.

II. to the exchange of biological resources by local communities and indigenous people, among them, for their own purposes and based on their customary practices.

Art. 5 - To ensure the accomplishment disposed in this law, the Executive Power Shall:

I. Create a commission formed by representative people of the State Government, the towns, scientific community and of non-governmental organizations, with the purpose of coordinating, evaluating, and ensuring the development of the preservation activities of the diversity and integrity of the genetic patrimony in the State of Amapá, by taking advantage over the cooperation of private companies,

II. Elaborate techniques and scientific guidelines to the establishment of priorities to the maintenance of ecosystems, species and genes, based on factors such as endemism, wealth, and the inter-relation of species, and their ecological worth, and in the possibilities of defensible administration,

III. develop plans, strategies, and policies to preserve biological diversity and to ensure that the use of its elements be sustainable,

IV. Estimate the creation and strengthening of conservation units in order to preserve species, habitats, representative ecosystems, and the genetic variability among species,

V. Enable people to protect, study and use biodiversity.

Art. 6 - The survey activities and gathering of biological diversity resources performed in the Territory of Amapá requires the prior approval of the competent authority, after presentation by natural person or legal entity of a petition, which includes at least:

I. detailed and specific information to the resources research for which they want access, including the resource's present and potential use, its sustainability and risks that may result from access,

II. detailed description of the methods, techniques, gathering systems and the tools to be used,

III. precise location of the areas of access to the resource,

IV. indication of the destination of the material gathered and its probable later use.

Art. 7 - The activities referred to in the proceeding paragraph shall require the participation of a Brazilian technical and scientific institution known in the area of the research, designated by the competent authority.

Sole Paragraph - The institution designated is jointly responsible for the accomplishment of the obligations assumed by natural person or legal entity authorized to develop access activities.

Art. 8 - The authorization issued by the competent authority shall contain, besides the information given by the petitioner, all other obligations to the accomplished, including:

I. submission to all other domestic norms, especially those concerning sanitary control, biosafety, environmental protection, and customs,

II. guarantee of national or State participation in the economic, social, and environmental benefits of products and procedures obtained from use of genetic resources acquired in the Territory of Amapá,

III. guarantee of the mandatory deposit of one specimen of each accessed genetic resource,

IV. assurance to the traditional, indigenous and other communities of compensation for access to collective intellectual rights, by signing a contract of access, which does not transfer in any way control of the knowledge.

Art. 9 - The competent authority, together with the designated institution, must enforce the terms of the authorization, and in particular, ensure, that:

I. the access is done exclusively on the authorized species,

II. preserve the environmental condition of the region where the work is developed

III. there is permanent, direct participation of a specialist from the supervisory institution,

IV. a detailed report is performed of the activities and destination of the samples gathered,

V. a specimen of the sample gathered has been delivered to the preserved ex situ.

Sole Paragraph - The competent authority shall, if necessary, demand a presentation of the environmental impact study resulting from access activities.

Art. 10 - The natural people or legal entities authorized to develop access activities to Brazilian genetic resources are obligated to communicate to the competent authorities any information referred to the transport of the specimen gathered, also being civil, criminal, and administratively liable for the improper use or handling of such specimen and by the adverse affect in the preservation and in the unsustainable use of biological diversity.

Art. 11 - The authorization for access to genetic resources does not imply in any authorization for its issue overseas, which shall be previously requested and justified to the competent authority.

Art. 12 - It is illegal to use genetic resources for research, maintenance, industrial or commercial application that is not included in the respective certificate of access.

Art. 13 - Rights relating to genetic resources obtained or used in contravention of this law will not be recognized, and valid titles of intellectual property or related rights to such resources or realting to products or procedures resulting from the access in such conditions will not be considered.

Art. 14 - The introduction of a specimen and genetic resources in the territory of the State of Amapá will depend upon a prior authorization and will obey the following guidelines:

I. the introduction of an exotic specimen will only be admitted if this results in evident and well defined benefits to local communities,

II. The introduction of an exotic specimen will only be admitted if there is no adequate technology for utilization of native species for the same purpose, and to help in the preservation of native species,

III. no exotic specimen shall be deliberately introduced into any natural habitat, with the understanding that it has not been altered by man, without a prior study of environmental impacts,

IV. no exotic specimen shall deliberately be brought into any semi-natural habitat, except when the operation has been submitted to a prior study of the environmental impacts,

V. the introduction of exotic specimens in highly modified habitats shall only occur after its effects over the natural and semi-natural habitats had been evaluated by a prior environmental impact study.

Art. 15 - The Public Power will promote and support the development of national sustainable technologies to use and improve species, stocks/lineages and autochthonal varieties. It will also give priority to traditional uses and practices within the territories of local communities, in accordance with their aspirations.

Sole Paragraph - For the purpose of this article the Public Power will promote the survey and evaluation of traditional and local biotechnology.

Art. 16 - The utilization of foreign biotechnology will always be allowed and when they are submitted to this law and other biosafety norms, and the company assumes total liability by any damage that may affect health, the environment or local cultures, at present and in future.

Art. 17 - The Executive Power will establish in rule the administrative sanctions system that shall be applied to the infringers of this law among the following:

I. written admonishment,

II. preventive apprehension of the resource gathered as well as material, and the equipment used in an irregular action,

III. cumulative daily fine,

IV. adjournment of the permission or license for access to the resource,

V. revocation of the permission or license for access to the resource,

VI. definite apprehension of the resource gathered as well as material, and the equipment used in an irregular action

Sole Paragraph - The sanctions established in this article will be applied without any prejudice to civil or criminal actions.

Art. 18 - This law enters in force on the date of its publication.

Art. 19 - Revoked the contrary provisions.