Enforcement and monitoring requirements are essential components of meaningful laws and policies. The motivation for these requirements is important not only to ensure that benefits are distributed in a timely manner but also to monitor the ability of species and ecosystems
to recover from negative impacts and their capacity to
continue delivering ecological services to society.
Australia: Draft EPBCAR
Enforcement of access regulations is likely to be carried out by Environment Australia which manages compliance with the . Fifty penalty units34 are set for contra-
vening the regulation which requires a permit for access to biological resources. The draft does not include any monitoring activities but the outline of the model contract proposes a section titled “Monitoring and review of the contract” (V ). The regulations also require an when collections are likely to harm the environment and this may contribute to the development of baseline information about the status of biodiversity. But no de- tails are provided about how to use this information in the context of a monitoring program of impacts caused by collections over time.
Colombia, Ecuador, and Peru: Decision 391
Under Decision , the national authority in coordination with other organizations will set up appropriate monitor- ing mechanisms to enforce contracts negotiated with bioprospectors. The national support organization will also be obliged to cooperate with the national authority in monitoring and reporting about activities that involve the use of genetic resources, derivative products, and traditional knowledge (A C ). The national authority is also authorized to enforce Decision according to national standards and mechanisms. For example, if approved, the Peruvian draft regulation on access to genetic resources would require bioprospectors to pay % of the total budget of the project as a bond or guarantee that there will be total compliance with the provisions agreed on the contract (M. Ruiz, pers. comm. January ). Under Decision , the national author- ity of each country will also have to monitor the state of conservation of biological resources. However, explicit provisions on monitoring biological and genetic resources for conservation purposes are not provided.
Costa Rica: The Law of Biodiversity
Once access is authorized, monitoring and control proce- dures begin at the expense of the and in coordination with the authorized representatives of the sites where access to the resources is taking place. The has not been established due to lack of budget, personnel, con- stitutional action, and political will, therefore monitoring procedures have not been carried out. Infringements of the Law of Biodiversity will be penalized according to Costa Rica’s Penal Code and pertinent national laws. Penalties for violations of access activities will be used to finance activities of and the . An can also be requested by the based on some general provisions of the LB related to . The evaluation is the responsibility of the National Technical Secretariat. To date no has been requested of the National Biodiversity Institute or any other bioprospector (see Chapter ).
Malaysia:
Draft federal bill on access to genetic resources
Existing monitoring and enforcement authorities would be responsible for monitoring and enforcement of the provi- sions of this draft bill, within their respective sectors or jurisdictions. These authorities will also have “powers of arrests, entry, search, and seizure with respect to offenses under the law”. Under this draft bill, when an access ap- plication is made the applicant is required to submit an (see Chapter ).
Mexico: EEEPGA, WGA, SFDGA, and draft LAUBGR
enforces , , and and would enforce the draft as well. The recently amended Criminal Code regulates infringements to , , , and the draft (if adopted). Article of the code punishes with prison sentences of between one and ten years and fines of between and , minimum daily wages to those who “illegally execute any activity with traffic purposes, or capture, possess, transport, gather, introduce to the country, or extract from it, any specimen, its products, its subproducts, and other genetic resources, of any wild flora and fauna species, terrestrial species, or aquatic species on temporary prohibition, considered endemic, threatened, endangered, subject to special pro- tection, or regulated by any international treaty of which Mexico has become a Party”. Furthermore, “an additional punishment will be applied when the described activities are executed in or affect a natural protected area, or when they are executed with a commercial purpose”. This pun- ishment, for example, would include those using biological material for biotechnological applications without proper permits issued under . In addition to this, Article of punishes as an administrative infringement the use of biological material for biotechnological purposes without the acquisition of due permits. The also requires an when bioprospecting or any other activi- ties are likely to have a significant environmental impact (see Chapter ).
Nicaragua: Draft Law of Biodiversity
Access contracts will include obligations for the establish- ment of an evaluation and monitoring system that will be financed by the access applicant. These contracts will also include penalties and sanctions for potential viola- tions. The law also includes penalties that range between , and , to be paid to the national envi- ronmental trust fund. The draft law also requires and of the ecological, social, economic, and cultural impacts ( ).
Philippines: EO 247 and Wildlife Act
Under the is set up to monitor and enforce compliance with research agreements, as well as to coor- dinate further institutional, policy, and technology devel- opment. The respective member agencies of the shall conduct monitoring of research agreements based on a standard monitoring plan to be proposed by this commit-
tee. The plan will include a monitoring team responsible
for establishing a mechanism to ensure the integration and dissemination of the information generated from research, collection, and utilization activities. The shall be the lead agency in monitoring the implementation of the research agreement. The regional offices shall also participate in the monitoring.
A second monitoring team headed by representatives of the Department of Science and Technology and the Department of Foreign Affairs monitors the progress of the research, utilization, and commercialization outside the country. The only commercial bioprospecting project that has been granted access is required to submit a report every four months and a government representative joins project scientists during every field visit. This project was not required to submit an .
Under the Wildlife Act, applicants have to pay an eco- logical or performance bond. The draft Guidelines for Bioprospecting Activities (see endnote ) state that the applicant must post a rehabilitation/performance bond, in the form of a surety bond, in an amount equivalent to % percent of the project cost as reflected in the research bud- get. The bond would have to be posted within a reasonable time after the signing of the Bioprospecting Undertaking. No collection of samples may be conducted until after the bond has been posted and failure to post the bond can be a basis for rescission of the Bioprospecting Undertaking.
Under the guidelines, reporting requirements are as follows: the resource user must submit an annual progress report to the implementing agencies covering the follow- ing items: a) status of the procurement of ; b) progress of collection of samples; c) benefit-sharing negotiations; d) progress on payment of benefits or other provisions of the Bioprospecting Undertaking. The annual report must be submitted not later than January of the following year. For purposes of compliance monitoring, biopros- pectors must issue the following certifications as proof of compliance, particularly on the proper procurement of , delivery of benefit-sharing agreement, and collection quota: proper procurement of ; acceptance by resource providers of the monetary and nonmonetary benefits re- quired by the undertaking; and compliance to the collection quota as set out in the undertaking.
Noncompliance with the provisions in the Bio- prospecting Undertaking would result in the automatic cancellation the agreement and confiscation of collected materials in favor of the government, forfeiture of bond and imposition of a perpetual ban on access to biologi- cal resources in the Philippines by the violator. Such a breach would be considered a violation of the Wildlife Act and would be subject to the imposition of adminis- trative and criminal sanctions under existing laws. Any person who conducts bioprospecting without an approved Bioprospecting Undertaking would be subject to sanctions for collecting without a permit. Furthermore, the violation would be published in national and international media and it would be reported by the agencies to the relevant
international and regional monitoring bodies. Collection, hunting or possession of wildlife, their by-products and derivatives without the necessary permit is penalized with imprisonment of up to four years and a fine of up to , P (see Chapter ).
Samoa: CABSSBR
Bioprospectors have to submit a report on the status of the analysis of samples every six months. However, the condi- tions do not set up a monitoring structure or mechanism of proposed enforcement strategies, sanctions, or penal- ties ( ). The Minister of Lands, Surveys, and Environment may ask bioprospectors to conduct an .
Thailand: PVPA, RFSRCFA, and APPTMI
The Department of Agriculture and oversee the and , respectively, but no monitoring structure has been defined under these policies. However, the Prime Minister Regulation on the Conservation and Utilization of Biological Diversity created a National Committee on Conservation and Utilization of Biological Diversity that is likely to address this issue. On the other hand, states that every six months, bioprospectors must submit three copies of a progress report to the . In addition, bioprospectors that cause negative environmental impacts are liable and may be punished by Thai laws (J. Donavanik, pers. comm. January ). provides for the cre- ation of an enforcement force of officials from the Ministry of Public Health to enforce the provisions of the act. The act also includes penalties such as prison sentences and fines for breaches of the act ( ).
USA: NPS research specimen collection permit
There are at least three main routes by which can use its enforcement authority: a) regulations and related statutes; b) permit provisions that include regulations and contracts; and c) contracts. Collecting without a permit or poaching is theft of Federal property and in this case criminal sanctions can apply. Failure to comply with regulations and permit provisions (assuming a permit is issued) can be less seri- ous; administrative penalties (possibly judicial) can apply (including a punitive % mandatory “royalty” payment in the context of the Diversa/Yellowstone National Park agreement). If there is an agreement violation or breach of contract; damages and injunctive relief can also apply. The Diversa/Yellowstone National Park also included audit clauses designed to promote compliance (P. Scott, pers. comm. February ). In addition, as part of the research permit terms, scientists are required to submit a yearly summary of their park research activities, known as an Investigator’s Annual Report. In addition, the park may require copies of field notes and scientific publications (see Chapter ). Besides, it may be that the potential negative publicity of being caught by the is a significant deter- rent itself (P. Scott, pers. comm. December ).
Analysis: Enforcement and Monitoring
All countries analyzed above, except for Samoa, have proposed measures to ensure that bioprospecting projects
comply with regulations. However, none of these
monitoring mechanisms are operational yet. Not even the Philippines, which has granted access to a couple of bio- prospecting projects under (see Chapter ), has a monitoring system up and running. This may be related to the fact that setting up this kind of system is an expensive endeavor. One strategy to finance monitoring activities is proposed by Nicaragua’s draft Law of Biodiversity which requires access applicants to pay for an evaluation and monitoring system. This can be a practical and cost-effec- tive measure as long as a third independent party runs the system to ensure its objectivity. Others looking to ensure compliance may want to ask bioprospectors for a bond as Peru and the Philippines propose in their national policies.
In any case, the complexity of bioprospecting projects may make compliance and monitoring systems difficult to implement. Bioprospecting projects involve multiple activi- ties that include: a) collecting samples; b) processing and shipping samples to research laboratories usually located in foreign countries; c) analyzing samples; d) transferring samples between research organizations; and e) developing and commercializing products. This is an oversimplified description of a complex chain of events where multiple actors interact with the samples and products derived from them. Therefore, final products or processes may not have a physical connection with the genetic resource collected. Products may have been manufactured from scratch based on the molecular structure of genetic resources collected. The samples may be stored in ex situ conservation centers for years before the appropriate technology is designed to take advantage of them. On the other hand, controlling or prohibiting illegal access activities can be impossible. A tourist can take samples back to his or her country with almost no difficulty. The likelihood of catching such a perpetrator is very slim. Furthermore, enforcement under statute is very complicated once the collector has left the area of jurisdiction. If a citizen of a country patents a prod- uct derived from a sample illegally collected in another country, the source country cannot compel anything to be done to the citizen of the country that patented the sample. The collector, however, may be deterred by bad publicity
and blacklisted with the subsequent loss of reputation and business opportunities in other countries.
Most policies may also require bioprospectors to submit an to ensure that project activities will not have significant ecological, social, or economic impacts. Such an assessment may provide baseline information that can be used to monitor the evolution of ecological, social, or economic conditions in sites where collections take place. However, so far no country has proposed standards, at least about biodiversity indicators and other procedures to monitor and evaluate the state of biological diversity and its sustainable use.
In the last decade, several indicator methodologies have been proposed to monitor the status of environmental is- sues and biodiversity conservation efforts at the level of the management of community and species (N ) and at the provincial, national, regional, or global policy-making level ( ). Perhaps the most popular methodol- ogy for an environmental indicator system, among policy- makers and scientists, has been the so-called pressure, state, response framework ( ). According to this framework, pressure indicators measure the forces that development trends such as bioprospecting activities (i.e., collection of biological samples and traditional knowledge) exert on the environment; state indicators are those that inform about the present quality and quantity of an envi- ronmental variable (i.e., population size of species in the region where specimens are being collected or number of conflicts among local indigenous groups); and response indicators inform about the activities implemented to miti- gate a situation (i.e., reforestation or restoration projects or conflict resolution meetings). Additional elements that a bioprospecting system of indicators should consider include: ) the type of information that should be col- lected by scientists for the indicators proposed, such as number of species and hectares of habitat affected and ) the frequency of collection of this information that should coincide with the workplan of a given bioprospecting proj- ect. Information fed to the indicator system could also be manipulated to assess whether bioprospecting initiatives are complying with the Convention on Biological Diversity and relevant access laws and policies.