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. 5459 of JUNE 7 2005 Regulating the art. 30 of provisional measure no. 2,186-16, of August 23 2001, disciplining the penalties for conduct and activities detrimental to genetic heritage or associated traditional knowledge and other matters.
The PRESIDENT of the REPUBLIC, in the use of the role that gives the art. 84, section IV, of the Constitution, and in view of the provisions of art. 30, § 1, of provisional measure no. 2,186-16, of August 23 2001, DECREES: chapter I PRELIMINARY PROVISIONS Art. 1st is considered administrative infraction against the genetic heritage or associated traditional knowledge every action or omission that violates the rules of the provisional measure no. 2,186-16, of August 23, 2001 and other relevant provisions.
Sole paragraph. Apply to this Decree the definitions set out in art. 7 of provisional measure no. 2,186-16, 2001, and the Convention on biological diversity, promulgated by Decree No. 2159 of March 16, 1998, as well as the technical guidelines published by the genetic heritage management Council.
Section I Administrative Process Art. 2nd infractions against the genetic heritage or associated traditional knowledge will be established in administrative process of each competent authority, through the drawing up of infraction and their terms, ensured the right to ample defense and contradictory.
Art. 3 Any person, noting infraction against the genetic heritage or associated traditional knowledge, can drive related authorities representation in art. 4, for the purpose of exercising its police power.
Art. 4 Are the competent authorities for enforcement in the form of this Decree, public agents of the following organ and entity, within the framework of their respective powers: I-the Brazilian Institute of environment and renewable natural resources-IBAMA;
II-the command of the Navy, the Ministry of defence.
(1) holders of the organ and federal entity contemplated in items I and II of the caput may make agreements with State and local environmental agencies members of the national system of Environment-SISNAMA, to decentralize the activities described in the heading.
(2) the exercise of supervisory jurisdiction of the caput Navy command occurs in the context of Brazilian jurisdictional waters and of the brazilian continental shelf, in coordination with the environmental agencies, if necessary, by means of instruments of cooperation.
Art. 5 the public organ and Agent entity referred to in art. 4 who has detailed knowledge of a violation provided for in this Decree shall be obliged to promote their determination, under penalty of immediate accountability.
Art. 6 the administrative process for verification of infringement against the genetic heritage or associated traditional knowledge must observe the following maximum time limits: I-20 days for the defense or objection offer booked against the infraction notice, from the date of the tax assessment science;
II-30 days for the competent authority to judge the infraction notice, from the date of the tax assessment science, presented or not rebuttal or defense;
III-20 days to the booked resort of judgment to the parent instance to the autuante, from the science of decision of first instance;
IV-20 days to the booked resort of judgment of second instance to the genetic heritage management Council; and V-five days for the payment of a fine, from the date of receipt of the notification.
Art. 7 the autuante agent, to plough the infraction notice, indicate the penalties applicable to the conduct, noting, for either: i. the seriousness of the facts, in view of the reasons of the infraction and its consequences for the genetic patrimony, the associated traditional knowledge, public health or to the environment;
II-the background to the booked, about the enforcement of protection of the genetic heritage and associated traditional knowledge; and III-the economic situation of the booked.
Art. 8. The competent authority shall, ex officio or upon provocation, irrespective of the payment of the fine, reduce, maintain or increase its value, the limits laid down in articles infringed, subject to the provisions of art. 7.
Art. 9 In case of recidivism, the penalty will be applied.
Sole paragraph. The repeat offender will not be able to enjoy the benefit provided for in art. 25. Section II of the administrative sanctions against the genetic heritage or associated traditional knowledge. 10. administrative infractions against the genetic heritage or associated traditional knowledge shall be subject to the following sanctions apply, individually or cumulatively, to individuals or legal entities: (I)-warning;
II-fine;
III-seizure of samples of components of the genetic heritage and the instruments used in your collection or processing or of products obtained from information on associated traditional knowledge;
IV-seizure of the sample component products of genetic heritage or associated traditional knowledge;
V-suspension of sales of the product derived from the sample of component of genetic heritage or associated traditional knowledge and its seizure;
VI-embargo of the activity;
VII-partial or total prohibition of the establishment, activity or undertaking;
VIII-suspension of registration, patent, license or authorization;
IX-cancellation of registration, patent, license or authorization;
X-loss or restriction of incentives and tax relief granted by the Government;
XI-loss or suspension of participation in financing line in official credit establishment;
XII-intervention in the establishment; and XIII-ban on contract with the public administration for a period of up to five years.
paragraph 1 shall be understood as products obtained from information on associated traditional knowledge as provided for in paragraph III of the caput, records, in any means, of information related to this knowledge.
§ 2 If the booked, with a single conduct, commit more than one infraction, will be applied, cumulatively, the sanctions she imposed.
(3) the penalties laid down in sections I and III-XIII may be applied independent of the forecast only penalty fine for administrative infractions described in this Decree.
Art. 11. The sanction of caution will be applied to small infractions offensive potential, at the discretion of autuante authority, when she, considering the background of booked, understand this Providence as more educational, without prejudice to any other penalties provided for in art. 10. Art. 12. The sanction of fines will be applied in the cases provided for in this Decree and its value will be arbitrated by the competent authority, and may range from: I-R$ 200.00 (200 dollars) to 100,000.00 R$ (100,000 dollars), in the case of an individual; or II-10000.00 (10000) R$ the R$ 50,000,000.00 (50 million dollars), if the infringement is committed by a legal person, or with your competition.
Art. 13. products, samples, equipment, vehicles, stores and other instruments used directly in practice of the infraction will get their allocation set by the genetic heritage management Council, taking into account the following criteria: (I) whenever possible, products, samples, equipment, vehicles, supplies and instruments referred to in this article shall be donated to scientific, cultural institutions, educational, hospital, environmentalists, criminal , military, or other public entities with charitable purposes;
II-when the donation of the item I is not recommended, for reasons of public health, reasonableness or morality, the seized goods are destroyed or auctioned off, guaranteed its distortion through recycling, when possible; or III-when the material seized refer to associated traditional knowledge, should he be returned to the provider community, unless this agree with the donation of the entities mentioned in item (I).
§1 The donations referred to in this article shall not preclude the grantee to request the authorization if you want to perform access to genetic heritage or associated traditional knowledge from the material received in donation.
§ 2 the values collected at auction will be reversed for the funds provided for in art. 33 of the provisional measure no. 2,186-16, 2001, at a rate provided for in art. 14 of this Decree.
§ 3 the vehicles and vessels used directly in practice of the infraction will be entrusted the faithful depositary in the form of the arts. 627 the 647, 651 and 652 of law No. 10406 of January 10, 2002, at the discretion of the authority autuante, and may be released upon payment of the fine.
Art. 14. The values collected on payment of fines referred to in this Decree shall revert: I-when the infringement is committed in an area under the jurisdiction of the Navy Command: the 50% the Naval Background); and

b) the remainder, divided equally between the National Fund for scientific and technological development, governed by the law on 8172, of 18 January 1991, and the National Environmental Fund, created by the law on 7797, of 10 July 1989;
II-in other cases the values collected shall be distributed equally between the National Fund for scientific and technological development and the National Environmental Fund.
(1) the resources referred to in this article shall be used exclusively in the conservation of biological diversity, including the retrieval, creation and maintenance of depositary banks, the promotion of scientific research, technological development associated with the genetic heritage and the training of human resources associated with the development of the activities related to the use and conservation of the genetic patrimony.
(2) means as used in the conservation of biological diversity, the application of the resources transferred to the Fund in the acquisition, operation, maintenance and conservation by the Navy Command of means used in the activity of supervision of conduct and activities affecting the environment, including the detrimental to genetic heritage or associated traditional knowledge.
CHAPTER II of INFRACTIONS AGAINST the GENETIC HERITAGE Art. 15. Access component of genetic heritage for scientific research purposes without the authorization of the competent organ or at odds with the obtained: fine not less than 10000 R$ (10000) and maximum of 100,000.00 R$ (100,000 dollars), in the case of a legal entity, and fine R$ 200.00 minimum (200 dollars) and a maximum of R$ 5000.00 (5000), in the case of an individual.
(1) the penalty provided for in the caput shall be applied twice if access to genetic heritage is undertaken for harmful environmental practices or practices harmful to human health.
(2) if access to genetic heritage is carried out for the development of biological and chemical weapons, the penalty provided for in heading will be tripled and the sanction should be applied to partial or total prohibition of the establishment, activity or enterprise.
Art. 16. Access component of genetic heritage for bioprospecting or technological development, without the authorization of the competent organ or at odds with the obtained: fine R$ minimum 15000.00 (15000) and R$ maximum 10,000,000.00 (ten million dollars), in the case of a legal entity, and a fine of at least R$ 5000.00 (5000) and maximum of R$ 50000.00 (50000) in the case of an individual.
§ 1º the same penalties who accesses component of the genetic patrimony in order to constitute or integrate ex situ collection for bioprospecting or technological development, without the authorization of the competent organ or at odds with the authorization obtained.
(2) the penalty provided for in the caput shall be increased by one third when access involve industrial property right claim related to product or process obtained from illicit access by the competent body.
(3) the penalty provided for in the caput shall be increased one-half if there is economic exploitation of a product or process obtained from illicit access to genetic heritage.
§ 4 the penalty provided for in the caput shall be applied twice if access to genetic heritage is undertaken for harmful environmental practices or practices harmful to human health.
§ 5 if access to genetic heritage is carried out for the development of biological and chemical weapons, the penalty provided for in heading will be tripled and the sanction should be applied to partial or total prohibition of the establishment, activity or enterprise.
Art. 17. Refer to the outer component sample of genetic heritage without the authorization of the competent organ or at odds with the authorization obtained: fine R$ minimum 10000.00 (10000) and maximum of R$ 5,000,000.00 (five million reais), in the case of a legal entity, and a fine of at least R$ 5000.00 (5000) and maximum of R$ 50000.00 (50000) in the case of an individual.
§ 1-Pune-if the attempt by the Commission of the infringement referred to in the heading with the fine corresponding to the infringement consummated, reduced by one third.
§ 2 it is said attempted an infringement, when started its implementation, do not consume by circumstances beyond the will of the agent.
(3) the penalty provided for in the caput shall be increased by half if the sample is obtained from species in the official list of endangered brazilian fauna and of annex I to the Convention on international trade of Wild Flora and Fauna in danger of extinction – CITES.
§ 4 the penalty provided for in the caput shall be applied twice if the sample is obtained from species in the official list of endangered brazilian fauna and annex II of CITES.
§ 5 the penalty provided for in the caput shall be applied twice if the sample is obtained from species in the official list of endangered brazilian flora.
Art. 18. Stop sharing, when available, the benefits arising from economic exploitation of a product or process developed from the access to genetic heritage or sample traditional knowledge associated with whom, in accordance with the provisions of provisional measure no. 2,186-16, 2001, or in accordance with the contract of use of genetic heritage and benefits ' sharing agreed by the genetic heritage management Council : minimum Fine R$ 50000.00 (50000 dollars) and a maximum of R$ 50,000,000.00 (50 million dollars), in the case of a legal entity, and a fine of at least R$ 20000.00 (20000) and maximum of 100,000.00 R$ (100,000 dollars), in the case of an individual.
Art. 19. Providing false information or omitting the Public essential information about research activity, bioprospecting or technological development related to genetic heritage, auditing, supervision or application for access authorization or referral: minimum Fine 10000.00 R$ (10000) and maximum of 100,000.00 R$ (100,000 dollars), in the case of a legal entity, and fine R$ 200.00 minimum (200 dollars) and a maximum of R$ 5000.00 (5000) in the case of an individual.
CHAPTER III INFRACTIONS to the TRADITIONAL KNOWLEDGE ASSOCIATED with Art. 20. Access to associated traditional knowledge for scientific research purposes without the authorization of the competent organ or at odds with the obtained: fine R$ minimum 20000.00 (20000 dollars) and a maximum of R$ 500,000.00 (500,000 dollars), in the case of a legal entity, and a fine not less than 1000.00 (1000 reais) R$ and R$ 50000.00 Max (50000), in the case of an individual.
Art. 21. Access to associated traditional knowledge for bioprospecting or technological development purposes without the authorization of the competent organ or at odds with the obtained: fine R$ 50000.00 minimum (50000 dollars) and a maximum of R$ 15,000,000.00 (fifteen million reais), in the case of a legal entity, and a fine of at least R$ 10000.00 (10000) and maximum of 100,000.00 R$ (100,000 dollars) in the case of an individual.
(1) the penalty provided for in the caput shall be increased by one third if there is industrial property right claim of any nature related to product or process obtained from illicit access with the competent national or foreign body.
(2) the penalty provided for in the caput shall be increased by half if there is economic exploitation of a product or process obtained from illicit access to associated traditional knowledge.
Art. 22. Disclose, transmit or retransmit data or information that integrate or constitute associated traditional knowledge, without the authorization of the competent organ or at odds with the authorization obtained when required: minimum Fine 20000.00 R$ (20000 dollars) and a maximum of R$ 500,000.00 (500,000 dollars), in the case of a legal entity, and a fine not less than 1000.00 (1000 reais) R$ and R$ 50000.00 Max (50000) in the case of an individual.
Art. 23. Omit the source of associated traditional knowledge in publication, registration, inventory, usage, operation, transmission or any form of dissemination in which this knowledge is directly or indirectly mentioned: minimum Fine of 10000.00 R$ (10000) and maximum of R$ 200,000.00 (200,000 dollars), in the case of a legal entity, and a fine of at least R$ 5000.00 (5000) and maximum of R$ 20000.00 (20000) in the case of an individual.
Art. 24. Omit the Public essential information about activity of access to associated traditional knowledge, at the time of audit, supervision or application for access authorization or referral: minimum Fine 10000.00 R$ (10000) and maximum of 100,000.00 R$ (100,000 dollars), in the case of a legal entity, and fine R$ 200.00 minimum (200 dollars) and a maximum of R$ 5000.00 (5000) in the case of an individual.
CHAPTER IV FINAL PROVISIONS

Art. 25. The fines provided for in this Decree can have their enforceability, when booked, by term of commitment approved by the competent authority, be bound to adopt specific measures to adapt the provisions of provisional measure no. 2,186-16, 2001, in its regulations and other rules from the genetic heritage management Council.
§1 fully complied with the obligations undertaken by the booked, since proven technical opinion issued by the competent organ, the fine will be reduced by up to 90% of its value, adjusted for inflation.
(2) in the event of interruption of the fulfilment of the obligations laid out in the term of commitment referred to in the caput, either by a decision of the competent authority or by the offender, the value of the ticket will be adjusted for inflation.
§ 3 the values established pursuant to §§ 1 and 2 will be collected within five days of receipt of the notification.
Art. 26. The sanctions set forth in this Decree shall be applied, regardless of the existence of fault, without prejudice to the criminal sanctions provided for in existing legislation and the objective liability for damage.
Art. 27. It is for the IBAMA and the genetic heritage management Council, within their respective competences, to issue normative acts aimed at discipline the procedures necessary to comply with this Decree.
Sole paragraph. The Navy Command will establish in normative acts own procedures to be adopted by him.
Art. 28. Apply in the alternative to this Decree the provisions of the criminal code, the code of criminal procedure, the law on 9784, of 29 January 1999, law No. 9605 on 12 February, 1998, and in Decree No. 3179 of September 21, 1999.
Art. 29. This Decree shall enter into force on the date of its publication.
Brasilia, June 7 2005; 184th independence and 117 of the Republic.

LUIZ INACIO LULA DA SILVA Marina Silva attachment (s)

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