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This web
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contains the full text of
Executive
Order No. 247
[PRESCRIBING
GUIDELINES
AND ESTABLISHING A REGULATORY FRAMEWORK FOR THE PROSPECTING OF
BIOLOGICAL
AND GENETIC RESOURCES, THEIR BY-PRODUCTS AND DERIVATIVES,
FOR SCIENTIFIC AND
COMMERCIAL
PURPOSES; AND OTHER PURPOSES]
EXECUTIVE ORDER NO.
247
PRESCRIBING
GUIDELINES
AND ESTABLISHING A REGULATORY FRAMEWORK FOR THE PROSPECTING OF
BIOLOGICAL
AND GENETIC RESOURCES,
THEIR
BY-PRODUCTS AND
DERIVATIVES,
FOR SCIENTIFIC
AND COMMERCIAL
PURPOSES;
AND OTHER
PURPOSES
WHEREAS, Section 16, Article
II of the Philippine Constitution, vests in the State the ultimate
responsibility
to preserve and protect the environment; and Section 2, Article XII,
provides
that wildlife, flora and fauna, among others, are owned by the State
and
the disposition, development and utilization thereof are under its full
control and supervision;
WHEREAS, it is in the
interest
of the State’s conservation efforts to ensure that the research,
collection,
and use of species, genes and their products be regulated; and to
identify
and recognize the rights of indigenous cultural communities and other
Philippine
communities to their traditional knowledge and practices when this
information
is directly and indirectly put to commercial use;
WHEREAS, under Article 16
of the Convention on Biological Diversity of which the Philippines is a
party, each contracting party is mandated to take legislative,
administrative
or policy measures, as appropriate, with the aim that contracting
parties,
in particular those that are developing countries, which provide
genetic
resources are provided access to and transfer of technology which makes
use of those resources, on mutually agreed terms, including technology
protected by patents and other intellectual property right;
WHEREAS, the Department
of Environment and Natural Resources (DENR) is the primary government
agency
responsible for the conservation, management, development, and
sustainable
use of the country’s environment and natural resources; the Department
of Science and Technology (DOST), the primary agency mandated to
promote
local capability in science and technology to achieve technological
self-reliance
in selected areas vital to national development; the agriculture and
aquatic
resource development; the Department of Health (DOH), the agency
responsible
for the formulation, planning, implementation, and coordination of
policies
and programs in the field of health, including the research,
regulation,
and development of drugs and medicine; the Department of Foreign
Affairs
(DFA), the agency responsible for promoting international relations;
WHEREAS, an inter-agency
approach is the most appropriate way of regulating the research,
collection,
exploitation and use of biological and genetic resources;
NOW, THEREFORE, I, Fidel
V. Ramos, President of the Republic of the Philippines, by virtue of
the
powers vested in me by Law and the Constitution, do hereby order:
Section 1
Policy of the State
It shall be the policy of
the State to regulate the prospecting of biological and genetic
resources
so that these resources are protected and conserved, are developed and
put to the sustainable use and benefit of the national interest.
Further,
it shall promote the development of local capability in science and
technology
to achieve technological self-reliance in selected areas.
Section 2
Consent of
Indigenous
Cultural Communities
a. Prospecting of
biological
and genetic resources shall be allowed within the ancestral lands and
domains
of indigenous cultural communities only with the prior informed consent
of such communities; obtained in accordance with the customary laws of
the concerned communities.
b. Prospecting of
biological and genetic resources shall be allowed only with the prior
informed
consent of the concerned local communities.
Section 3
When Research
Agreement
is Necessary
The prospecting of
biological
and genetic resources shall be allowed when the person, entity or
corporation,
foreign or domestic, undertaking such activities, on recommendation of
the Inter-Agency Committee on Biological and Genetic Resources, has
entered
into a Research Agreement with the Philippines government, represented
by the DENR, DOH, DA, or DOST, depending on the nature and character of
the prospecting activity. For purposes of this Executive Order,
traditional
uses of biological resources by indigenous and local communities shall
not require a Research Agreement.
If the research and collection
of biological and genetic resources is intended, directly or indirectly
for commercial purposes, the agreement must be a Commercial Research
Agreement.
For purposes of this Executive Order, all Research Agreements with
private
persons and corporations, including all agreements with foreign or
international
entities, shall conform with the minimum requirements of a Commercial
Research
Agreement.
If the prospecting of biological
and genetic materials is intended primarily for academic purposes, the
agreement shall be an Academic Research Agreement. Only duly recognized
Philippines universities and academic institutions, domestic
governmental
entities, and intergovernmental entities may apply for an Academic
Research
Agreement.
Where the Commercial or Academic
Collector is merely an agent or merely collecting for another person or
entity, the agreement between the Commercial Collector and the
Principal
must be reviewed by the Inter-Agency Body to determine the latter
agreement
does not undermine the substantive requirements of this Executive Order.
Section 4
Application for
Academic
Research Agreement and Commercial Research Agreement
The applicant first submit
an application for a Research Agreement to the Inter-Agency Committee
on
Biological and Genetic Resources through the Protected Areas and
Wildlife
Bureau (PAWB). It must include a research proposal stating the purpose,
source of funds, duration, and a list of biological and genetic
materials
and the amount to be taken. The requisites for research agreements are
in Appendix B.
For Academic Research
Agreement,
the proposal may be broader and more general in character as provided
in
Section 5(m).
A copy of the proposal must
be submitted to the recognized head of the local or indigenous cultural
community or communities that may be affected. Action on the proposal
shall
be made only after 60 days has lapsed after a copy of the proposal is
received
by the persons concerned.
Section 5
Minimum Terms of
the
Commercial Research Agreement
and Academic
Research
Agreement
The Minimum Terms of the
Commercial Research Agreement and Academic Research Agreement are as
follows:
a. There must be a
limit on samples that the Commercial/Academic Collector may obtain and
export and that the approved list and amount of the samples taken from
the area must be followed strictly;
b. A complete set
of all specimens collected shall be deposited by the
Commercial/Academic
Collector with the National Museum or a duly designated governmental
entity;
Provided that holotypes designated by the author must be maintained at
the National Museum.
c. Access to
collected
specimens and relevant data shall be allowed to all Filipino citizens
and
the Philippine governmental entities whenever these specimens are
deposited
in depositories abroad;
d. The
Commercial/Academic
Collector, or in appropriate cases, its Principal, must inform the
Philippine
Government, as well as the affected local and indigenous cultural
communities
all discoveries from the activity conducted in the Philippines, if a
commercial
product is derived from such activity.
e. The agreement
shall
include a provision for the payment of royalties to the National
Government,
local or indigenous cultural community and individual person or
designated
beneficiary in case commercial use is derived from the biological and
genetic
resources taken. Where appropriate and applicable, other forms of
compensation
may be negotiated.
f. There shall be
a provision allowing the Philippine government to unilaterally
terminate
the agreement whenever the Commercial/Academic Collector has violated
any
of its terms. The Agreement may also be revoked on the basis of public
interest and welfare;
g. A status report
of the research and the ecological state of the area and/or species
concerned
shall be submitted to the Inter-Agency Committee regularly as agreed
upon;
h. If the
Commercial
Collector or its Principal is a foreign person or entity, it must be
stipulated
that scientists who are citizens of the Philippines must be actively
involved
in the research and collection process and, where applicable and
appropriate
as determined by the Inter-Agency Committee, in the technological
development
of a product derived from the biological and/or genetic resources taken
from any area in the Philippines. This involvement shall be at the cost
of the Commercial Collector;
i. The Commercial
Collector and/or its Principal shall be encouraged to avail of the
services
of Philippines universities and academic institutions Where applicable
and appropriate, the Commercial Collector and/or its Principal shall be
required to transfer equipment to a Philippine institution or entity.
j. A fixed fee
must
be paid to the DENR in accordance with a schedule of fees formulated by
the Inter-Agency Committee;
k. The maximum
term
for a Commercial Research Agreement shall be for three years and
renewable
upon review by the Inter-Agency Committee.
l. In case of
endemic
species, there must be a statement that the technology must be made
available
to a designated Philippine institution and can be used commercially and
locally without paying royalty to a Collector or Principal. Provided,
however,
that where appropriate and applicable, other agreements may be
negotiated.
Provided, further,
that the following terms shall be considered in an Academic Research
Agreement;
m. The Academic
Research
Agreement may be comprehensive in scope and cover as many areas as may
be projected. It may stipulate that all scientists and researchers
affiliated
with a duly recognized university, academic institution, governmental
and
intergovernmental entity need not apply for a different Research
Agreement
but may conduct research and collection activities in accordance with
an
existing Academic Research Agreement. In such cases, the university,
academic
institution and governmental entity shall ensure that all terms and
conditions
of the government are complied with by the affiliated scientist or
researcher.
In all cases, the university institution or governmental entity must
ensure
that affected communities have given their prior informed consent to
the
activities to be undertaken;
n. There must be a
provision requiring the Academic Collector to apply for a commercial
research
agreement when it becomes clear that the research and collection being
done has commercial prospects;
o. A minimal fee
must
be paid to the Philippine government in accordance with a schedule of
fees
by the Inter-Agency Committee; and
p. The maximum
term
for an Academic Research Agreement shall be for five years and
renewable
upon review by the Inter-Agency Committee.
Section 6
Composition and
Functions
of the Inter-Agency Committee on Biological and Genetic Resources
An Inter-Agency Committee
on Biological and Genetic Resources attached to the DENR is hereby
created
as the regulatory body to ensure that the provisions of this Executive
Order are enforced and implemented. The Inter-Agency Committee shall be
composed of the following:
1. An
Undersecretary
of the Department of Environment and Natural Resources designated by
the
DENR Secretary who shall be the Chairperson of the Committee.
2. An
Undersecretary
of the Department of Science and Technology (DOST) designated by the
DOST
Secretary who shall be Co-Chairperson of the Committee.
3. A permanent
representative
of the Secretary of the Department of Agriculture, who must be
knowledgeable
about biodiversity or biotechnology.
4. Two permanent
representatives
of the Philippine science community from the academe and who must be
experts
in any of the following fields: biodiversity, biotechnology, genetics,
natural products chemistry or similar disciplines, shall be appointed
by
the DOST Secretary after nominations from and consultations with the
science
community.
5. A permanent
representative
of the Secretary of the Department of Health who must be knowledgeable
about pharmaceutical research and development.
6. A permanent
representative
of the Department of Foreign Affairs who has to facilitate
international
linkage relative to bio-prospecting.
7. A permanent
representative
of the National Museum who has expertise on natural history and/or
biological
diversity.
8. A
representative
from a Non-Government Organization (NGO) active in biodiversity
protection
to be selected by the NGO community through a process designed by
themselves
and later endorsed by the Philippines Council for Sustainable
Development.
9. A
representative
from a People’s Organization (PO) with membership consisting of
indigenous
cultural communities and/or their organizations to be selected by the
PO
community through a process designed by themselves and through the
endorsement
of the Philippine Council for Sustainable Development.
All members of the Inter-Agency
Committee shall serve for a period of three years which may be renewed
for another three years. In case of death, resignation, removal or
other
circumstance which requires the replacement of a member, said member
may
be succeeded by another person with the same qualifications and
appointed
in a similar process. The replacement shall serve the unexpired term of
the member replaced.
A Technical Secretariat,
to be headed by the PAWB, shall be created to support the work of the
Inter-Agency
Committee. The Technical Secretariat shall be staffed with personnel
from
the PAWB and other agencies who shall be designated by the members of
the
Inter-Agency Committee.
Section 7
Powers and
Functions
of the Inter-Agency Committee
The Inter-Agency Committee
shall meet at least once every quarter and shall have the following
functions:
a. Process
applications
for Research Agreements and recommend for approval thereof to the
Secretary
of DENR, DOH, DA or DOST depending on the nature and character of the
prospecting
activity.
b. Ensure that the
conditions for the Research Agreements are strictly observed;
c. Determine the
list
and amount of biological and genetic materials that may be taken from
the
area and ensure that these are complied with;
d. Deputize and
train
appropriate agencies so as to ensure that no biological and genetic
materials
are taken from the Philippines and exported abroad except under a valid
Research Agreement. It shall be ensured that the specimens collected
have
been deposited in the Philippines;
e. Ensure that the
rights of the indigenous and local communities wherein the collection
or
researches are being conducted are protected, including the
verification
that the consent requirements in Sections 3 and 4 are complied with.
The
Inter-Agency Committee, after consultations with the affected sectors,
shall formulate and issue guidelines implementing the provision on
prior
informed consent;
f. Study and
recommend
to the President and the Congress appropriate laws on the utilization
of
biological and genetic resources including new laws on intellectual
property
rights;
g. Involve local
scientists
in the decision making process by creating a Multi-Disciplinary
Advisory
Body and other entities as may facilitate local involvement in the
research,
collection and utilization of biological and genetic resources;
h. Develop a
conceptual
framework, using the research agreement entered into as well as other
data
as basis, for significantly increasing knowledge of Philippine
biodiversity.
The Inter-Agency Committee shall establish mechanisms to ensure the
integration
and dissemination of the information generated from research,
collection
and utilization activities;
i. Coordinate with
the National Committee on Biosafety when necessary or appropriate;
j. Issue rules and
regulations to effectively carry out the provisions of this Executive
Order;
and
k. Perform such
other
functions as may be necessary to implement this Executive Order;
All decisions of the Inter-Agency
Committee must be by a majority of all its members.
Section 8
Monitoring
Implementation
of the Research Agreement
The Protected Areas and
Wildlife Bureau (PAWB) of the DENR shall be the lead agency in
monitoring
the implementation of the research agreement. The regional offices of
the
DENR shall also participate in the monitoring.
Section 9
Appeals
Decisions of the Secretary
(DENR, DA, DOH or DOST) may be appealed to the Office of the President.
Recourse to the courts shall be allowed after exhaustion of all
administrative
remedies.
Section 10
Sanctions and
Penalties
Undertaking activities in
violation of this Executive Order shall be subject to such criminal
penalties
as may be proper under existing laws including the National Integrated
Protected Areas System Act of 1992 and the Revised Forestry Code.
Failure
to comply with the provisions of the Research Agreements entered into
under
Sections 3, 4 and 5 shall be a valid cause of immediate termination of
the Agreement and the imposition of a perpetual ban on undertaking
prospecting
of biological and genetic resources in the Philippines.
Section 11
Existing
Researches,
Contracts and Agreements
All existing research
projects,
where allowed under existing law, may proceed pending the negotiation
and
entry into force of appropriate research agreement. All valid and
existing
contracts and agreements entered into by the PAWB, the National Museum
or other governmental entities shall remain valid and effective;
Provided,
that all the parties shall be required to enter into a new agreement
conforming
to this Executive Order.
Section 12
Official Depository
The official depository
of all original and official documents such as agreements and minutes
of
the meeting is the PAWB.
Section 13
Funding
The activities of the
Inter-Agency
Committee on Biological and Genetic Resources shall be funded in
accordance
with law. Such funding, where allowed by law, may include savings
coming
from the appropriate and concerned Departments and proceeds from the
fees
imposed on the Research Agreements.
Section 14
Effectivity
This Executive Order and
Rules and Regulations takes effect immediately upon publication in two
newspapers of general circulation and upon filing of three certified
copies
with the U.P. Law Center.
Section 15
Implementing Rules
and
Regulations
The implementing rules and
regulations shall be formulated by the Inter-Agency Committee and
signed
by the Secretary of DENR not later than three months after the
effectivity
of the Executive Order.
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