Decree No. 5459 Of June 7, 2005

Original Language Title: Decreto nº 5.459, de 7 de Junho de 2005

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DECREE NO 5,459, DE June 7, 2005

Regulation the art. 30 of the Provisional Measure No. 2.186-16 of August 23, 2001, disciplining the penalties applicable to the conduct and activities detrimental to the genetic heritage or the traditional associated knowledge and gives other arrangements.

THE PRESIDENT OF THE REPUBLIC, in the use of the attribution conferring you the art. 84, inciso IV, of the Constitution, and in view of the provisions of art. 30, § 1º, of Provisional Measure No. 2.186-16 of August 23, 2001,

DECRETA:

CHAPTER I

DAS PRELIMINARY PROVISIONS

Art. 1º It is considered administrative infringement against the genetic heritage or traditional knowledge associated with all action or omission that violates the Standards of Provisional Measure No. 2.186-16 of August 23, 2001, and other relevant provisions.

Single Paragraph. They apply to this Decree the constant definitions of art. 7º of the Provisional Measure No. 2.186-16, 2001, and of the Convention on Biological Diversity, promulgated by Decree No 2,159 of March 16, 1998, as well as the technical guidelines edited by the Management Board of Genetic Heritage.

Section I

From the Administrative Process

Art. 2º The infractions against genetic heritage or associated traditional knowledge will be ascertained in the own administrative process of each competent authority, upon the dishwasher of infraction and their terms, ensured the right of broad defence and the adversarial.

Art. 3º Any person, finding infraction against genetic heritage or associated traditional knowledge, will be able to direct representation to the related authorities at art. 4º, for the purpose of the exercise of its police power.

Art. 4º They are competent authorities for the supervision, in the form of this Decree, the public servants of the following organ and entity, within the scope of their respective powers:

I-the Brazilian Institute of Environment and Renewable Natural Resources-IBAMA ;

II-the Navy Command, the Ministry of Defense.

§ 1º The holders of the federal organ and entity that treats the incisos I and II of the caput will be able to firm up arrangements with the state and municipal environmental bodies of the National Environment System-SISNAMA, to decentralize the activities described in the caput.

§ 2º The exercise of the supervisory competence of which it treats the caput by the Command of the Navy will occur within the framework of Brazilian jurisdictional waters and the Brazilian continental shelf, in coordination with environmental bodies, when necessary, by means of cooperation instruments.

Art. 5º The public agent of the organ and entity mentioned in art. 4º that you have knowledge of infraction provided for in this Decree is obliged to promote your immediate ascertainment, under penalty of accountability.

Art. 6º The administrative process for ascertaining infraction against genetic heritage or traditional knowledge associated must observe the following maximum deadlines:

I-twenty days for the author to offer defense or impugation against the self-infraction, counted from the date of the science of autuation ;

II-thirty days for the competent authority to judge the self-infraction, counted from the date of science of self-autuation, presented or not the defence or impugation ;

III-twenty days for the author to appeal the sentencing decision to the instance hierarchically superior to the author body, counted from the science of the first instance decision ;

IV-twenty days for the author to appeal of the second instance sentencing decision to the Genetic Heritage Management Board ; and

V-five days for the payment of a fine, counted from the date of receipt of the notification.

Art. 7º The autual agent, when washing the infringing self, shall indicate the penalties applicable to the conduct, noting, for so much:

I-the gravity of the facts, in view of the grounds of the infraction and its consequences for the genetic heritage, traditional knowledge associated, public health or for the environment ;

II-the antecedents of the author, as for compliance with the protection legislation to the genetic heritage and associated traditional knowledge ; and

III-the economic situation of the autuate.

Art. 8º The competent authority shall, of letter or upon provocation, regardless of the collection of the fine imposed, alleviate, maintain or majorize its value, respected the limits set forth in the articles infringed, observed the provisions of the art. 7º.

Art. 9º In case of recurrence, the fine will be applied in double.

Single Paragraph. The reincident will not be able to enjoy the intended benefit in art. 25.

Section II

Of Administrative Sanctions against Genetic Heritage or the

Traditional Associate Knowledge

Art. 10. Administrative infractions against genetic heritage or associated traditional knowledge will be punished with the following sanctions, applicable, isolated or cumulatively, to physical or legal persons:

I-warning ;

II-fine ;

III-apprehension of the samples of components of genetic heritage and instruments used in their collection or processing or products obtained from information on associated traditional knowledge ;

IV-apprehension of the products derived from component sample of genetic or natural heritage traditional associated knowledge ;

V-suspension of product sale derived from component sample of genetic patrimony or of the traditional associated knowledge and their apprehension ;

VI-embargo of activity ;

VII-partial or total interdiction of the establishment, activity or venture ;

VIII-suspension of registration, patent, license or authorization ;

IX-cancellation of registration, patent, license or authorization

X-loss or restriction of incentive and fiscal benefit granted by the government ;

XI-loss or suspension of participation in line of funding in official establishment of credit ;

XII-intervention in the establishment ; and

XIII-prohibition of hiring with public administration, per period of up to five years.

§ 1º Understand as products obtained from information on traditional knowledge associated, provided for in the inciso III of the caput, the records, in any means, of information related to this knowledge.

§ 2º If the author, with a single conduct, commits more than one infraction, will be-on-the- applied, cumulatively, the sanctions on her commised.

§ 3º The penalties provided for in the incisos I and III to XIII may be applied independent of the single pension penalty forecast for the administrative infractions described in this Decree.

Art. 11. The warning sanction will be applied to the infractions of small offensive potential, at the discretion of the autuary authority, when she, considering the record of the author, understands this providence as more educational, without prejudice to the other penalties provided for in art. 10.

Art. 12. The penalty of fine shall be applied in the hypotheses provided for in this Decree and shall have its value arbitrated by the competent authority, and may vary from:

I-R$ 200.00 (real two hundred) at R$ 100,000.00 (one hundred thousand reais), when dealing with person physics ; or

II-R$ 10,000.00 (ten thousand reais) at R$ 50,000,000.00 (fifty million reais), if the infraction is committed by legal person, or with their contest.

Art. 13. The products, samples, equipment, vehicles, petrechos and other instruments used directly in the practice of the infraction will have their intended destination defined by the Management Board of Genetic Heritage, taking into account the following criteria:

I-whenever possible, the products, samples, equipment, vehicles, petrechos and instruments that it treats this article should be donated to scientific, cultural, environmental, educational, hospital, criminal, military, public or other entities with charitable purposes ;

II-when the donation that it treats inciso I is not recommendable, for health reasons public, reasonableness or morality, the seized goods will be destroyed or auctioned, guaranteed their discharacterization by means of recycling, when possible ; or

III-when the seized material refers to traditional associated knowledge, it should it be returned to the provider community, unless this agrees with the donation to the entities mentioned in the inciso I.

§ 1º The donations of which it treats this article do not eximposing the donor from applying for the respective authorization, should you wish to realize access to the genetic heritage or the traditional knowledge associated with the material received in donation.

§ 2º The auction-raised values will be reversed for the funds provided for in art. 33 of the Provisional Measure No. 2.186-16, 2001, in the proportion provided for in art. 14 of this Decree.

§ 3º The vehicles and vessels used directly in the practice of the infraction will be entrusted to trustee trustee in the form of the arts. 627 a 647, 651 and 652 of Law No 10,406 of January 10, 2002 at the discretion of the autual authority, and may be released upon payment of the fine.

Art. 14. The values raised in payment of the fines that it treats this Decree will revert:

I-when the infraction is committed in area under jurisdiction of the Navy Command:

a) fifty per cent to the Naval Fund ; and

b) the remainder, reparty equally between the National Scientific Development Fund and Technological, regulated by Law No 8,172 of January 18, 1991, and the National Environment Fund, set up by Law No 7,797 of July 10, 1989 ;

II-in the other cases the collected values will be broken down, equally, between the Fund National Scientific and Technological Development and the National Environment Fund.

§ 1º The resources that it treats this article should be used exclusively in the conservation of biological diversity, including the recovery, creation and maintenance of depositary banks, foster scientific research, technological development associated with genetic heritage and the empowerment of associated human resources to the development of activities related to the use and conservation of genetic heritage.

§ 2º Understand as used in the conservation of biological diversity, the application of resources passed on to the Naval Fund in the acquisition, operation, maintenance and conservation by the Marine Command of means used in the activity of conducting conducts and harmful activities to the environment, among them the lesions to the estate genetic or traditional associated knowledge.

CHAPTER II

DAS INFRACTIONS AGAINST GENETIC HERITAGE

Art. 15. Access component of genetic heritage for scientific research purposes without authorization from the competent organ or at odds with obtained:

Minimum Fine of R$ 10,000 (ten thousand reais) and maximum of R$ 100,000.00 (one hundred thousand reais), when whether it is legal person, and a minimum fine of R$ 200.00 (real two hundred) and maximum R$ 5,000.00 (five thousand reais), when it comes to physical person.

§ 1º The penalty provided for in the caput will be applied double if access to genetic heritage is performed for practices harmful to the environment or harmful practices to human health.

§ 2º If access to genetic heritage is carried out for the development of weapons biological and chemical, the penalty provided for in the caput will be tripled and the sanction of partial or total prohibition of the establishment, activity or undertaking should be applied.

Art. 16. Access component of genetic heritage for bioprospection or technological development purposes, without authorization from the competent organ or at odds with the obtained:

Minimum Fine of R$ 15,000.00 (fifteen thousand reais) and maximum of R$ 10,000,000.00 (ten million real), when dealing with legal person, and minimum fine of R$ 5,000.00 (five thousand reais) and maximum R$ 50,000.00 (fifty thousand real), when dealing with physical person.

§ 1º Inruns in the same feathers who accesses component of genetic heritage in order to constitute or integrate ex situ collection for bioprospection or technological development, without authorization from the competent organ or at odds with the authorization obtained.

§ 2º The penalty provided for in the caput will be increased by a third when the access involves claim for industrial property law related to the product or process obtained from the illicit access to the competent organ.

§ 3º The penalty provided in the caput will be increased by half if there is economic exploitation of product or process obtained from illicit access to genetic patrimony.

§ 4º The penalty provided for in the caput will be applied double if access to genetic heritage is performed for practices harmful to the environment or harmful practices to human health.

§ 5º If access to genetic heritage is carried out for the development of weapons biological and chemical, the penalty provided for in the caput will be tripled and the sanction of partial or total prohibition of the establishment, activity or undertaking should be applied.

Art. 17. Refer to the exterior sample of component of genetic heritage without authorization from the competent organ or at odds with the authorization obtained:

Minimum fine of R$ 10,000.00 (ten thousand reais) and maximum of R$ 5,000,000.00 (five million real), when dealing with legal person, and minimum fine of R$ 5,000.00 (five thousand reais) and maximum R$ 50,000.00 (fifty thousand real), when dealing with physical person.

§ 1º Pune the attempt of the commission of the infraction of which treats the caput with the fine corresponding to the consumed infraction, decreased by a third.

§ 2º Diz-if an infringement is attempted, when, initiated its execution, do not consect by circumstances other than the will of the agent.

§ 3º The penalty provided in the caput will be increased in half if the sample is obtained from constant species of the official list of the endangered Brazilian fauna and of Annex I to the Convention on International Trade of the Flora and Wild Fauna Species in Danger of Extinction-CITES.

§ 4º The penalty provided for in the caput will be applied double if the sample is obtained from constant species of the official list of endangered Brazilian fauna and Annex II of the CITES.

§ 5º The penalty provided for in the caput will be applied double if the sample is obtained from constant species of the official list of the endangered Brazilian flora.

Art. 18. Leave from redeeming, when existing, the benefits resulting from the economic exploitation of product or process developed from the access to the sample of the genetic heritage or traditional knowledge associated with whom of law, from arrangement with the provisions of the Provisional Measure No. 2.186-16, 2001, or in accordance with the Agreement for the Use of Genetic Heritage and Benefits Repartition annually by the Management Board of Genetic Heritage:

Minimum Fine of R$ 50,000.00 (fifty thousand reais) and maximum of R$ 50,000,000.00 (fifty million reais), when it comes to legal person, and a minimum fine of R$ 20,000.00 (twenty thousand reais) and maximum R$ 100,000.00 (one hundred thousand reais), when it comes to physical person.

Art. 19. Provide false information or omit to the Public Power essential information on research activity, bioprospection or technological development related to genetic heritage, on the occasion of audit, supervision or application of access or shipping authorization:

Minimum Fine of R$ 10,000.00 (ten thousand reais) and maximum of R$ 100,000.00 (one hundred thousand reais), when dealing with legal person, and minimum fine of R$ 200.00 (real two hundred) and maximum R$ 5,000.00 (five thousand real), when dealing with physical person.

CHAPTER III

DAS INFRACTIONS TO TRADITIONAL ASSOCIATED KNOWLEDGE

Art. 20. Access traditional knowledge associated for scientific research purposes without the authorization of the competent organ or at odds with the obtained:

Minimum Fine of R$ 20,000.00 (twenty thousand reais) and maximum of R$ 500,000.00 (five hundred thousand real), when dealing with legal person, and minimum fine of R$ 1,000.00 (thousand reais) and maximum R$ 50,000.00 (fifty thousand real), when dealing with physical person.

Art. 21. Access traditional knowledge associated for the purposes of bioprospecting or technological development without the authorization of the competent organ or at odds with the obtained:

Minimum Fine of R$ 50,000.00 (fifty thousand reais) and maximum of R$ 15,000,000.00 (fifteen million reais), when it comes to legal person, and a minimum fine of R$ 10,000.00 (ten thousand reais) and maximum of R$ 100,000.00 (one hundred thousand reais), when it is physical person.

§ 1º The penalty provided for in the caput will be increased by a third if there is a claim of entitlement of industrial property of any kind related to the product or process obtained from the illicit access together with the competent national or foreign body.

§ 2º The penalty provided in the caput will be increased by half if there is economic exploitation of product or process obtained from illicit access to the traditional associated knowledge.

Art. 22. Disclose, transmit or relay data or information that they integrate or constitute traditional associated knowledge, without authorization from the competent body or at odds with the authorization obtained, when required:

Minimum Fine of R$ 20,000.00 (twenty thousand reais) and maximum of R$ 500,000.00 (five hundred thousand real), when dealing with legal person, and minimum fine of R$ 1,000.00 (thousand reais) and maximum R$ 50,000.00 (fifty thousand real), when dealing with physical person.

Art. 23. Omit the origin of traditional knowledge associated with publication, registration, inventory, use, exploitation, transmission or any form of disclosure in which this knowledge is directly or indirectly mentioned:

Minimum Fine of R$ 10,000.00 (ten thousand reais) and maximum of R$ 200,000.00 (two hundred thousand reais), when dealing with legal person, and minimum fine of R$ 5,000.00 (five thousand reais) and maximum R$ 20,000.00 (twenty thousand real), when dealing with physical person.

Art. 24. Omit to the Public Power essential information about access activity to traditional knowledge associated, on the occasion of audit, supervision or application for access or shipping authorization:

Minimum Fine of R$ 10,000.00 (ten thousand reais) and maximum of R$ 100,000.00 (one hundred thousand reais), when dealing with legal person, and minimum fine of R$ 200.00 (real two hundred) and maximum R$ 5,000.00 (five thousand real), when dealing with physical person.

CHAPTER IV

DAS FINAL PROVISIONS

Art. 25. The fines provided for in this Decree may have their demand suspended, when the author, by term of appointment approved by the competent authority, obliges the adoption of specific measures to suit the provisions of the Provisional Measure paragraph 2.186-16, 2001, in its regulation and other standards arising from the Management Board of Genetic Heritage.

§ 1º Fulfilled in full the obligations assumed by the autuate, provided that it has been proven in opinion technical issued by the competent organ, the fine will be reduced by up to ninety per cent of its value, updated monetarily.

§ 2º In the hypothesis of interruption of compliance with obligations laid down in the term of commitment referred to in the caput, whether by decision of the competent authority or on the fact of the offender, the value of the fine will be updated monetarily.

§ 3º The values ascertained pursuant to § § 1º and 2º will be collected within five days of receipt of notification.

Art. 26. The sanctions set out in this Decree will be enforced, regardless of the existence of guilt, without prejudice to the criminal penalties provided for in the current legislation and the objective civil liability for the damage caused.

Art. 27. It is incumbent on IBAMA and the Board of Management of Genetic Heritage, within the framework of their respective competences, to expedite normative acts to discipline the procedures necessary to comply with this Decree.

Single Paragraph. The Navy Command will establish in normative acts the procedures to be adopted by him.

Art. 28. They apply subsidiary to this Decree the provisions of the Criminal Code, in the Code of Criminal Procedure, in Law No 9,784 of January 29, 1999, in Law No 9,605 of February 12, 1998, and in Decree No 3,179 of September 21, 1999.

Art. 29. This Decree shall enter into force on the date of its publication.

Brasilia, June 7, 2005 ; 184º of the Independence and 117º of the Republic.

LUIZ INACIO LULA DA SILVA

Marina Silva

Attachment (s)