Section 15 — ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017

(2)

Any activity undertaken under subsection (1) shall be in collaboration with a public higher education institution, public research institution or Government agency, unless the relevant

Competent Authority is satisfied that—

(a)

the applicant is a non-profit organization based or registered in Malaysia;

(b)

local researchers are involved in the activity; and

(c)

a program for capacity building is included in the activity.

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(3)

The Competent Authority may, after receiving the application under subsection (1), approve the application, if the following matters have been satisfied:

(a)

the application is not for commercial or potential commercial purpose;

(b)

in the case of access to a biological resource or traditional knowledge associated with a biological resource, as the case may be, the applicant has obtained the prior informed consent in accordance with section 23;

(c)

the application is not for any threatened taxa;

(d)

the application is not for any endemic species, rare species or any species protected under any Federal or State law;

(e)

the access is not likely to result in adverse effects on the livelihood or cultural practices including religious, ceremonial or other traditional or customary practices of indigenous community and local community;

(f)

in the case of access to human genetic resource, its use is not for the purposes contrary to ethical values or the public interest;

(g)

the access may not result in adverse environmental impact which may be difficult to control and mitigate;

(h)

the access may not cause genetic erosion or affect any function of the ecosystem;

(i)

the access may not adversely affect food security;

(j)

the use of the biological resource is not for the purposes contrary to the national or State interest;

(k)

the use of the biological resource is not for the development of biological or chemical weapons, or for military or terrorist purposes;

(l)

the use of the biological resource is not for the purposes associated with genetic use restriction technology;

Act 795

(m)

the applicant has not committed an offence under this

Act;

(n)

the applicant has not been adjudicated a bankrupt or, in the case of a company, has not been wound up;

(o)

the application complies with the requirements of this

Act or any other written law; and

(p)

the use of the biological resources is not contrary to related international agreements or instruments to which

Malaysia is a party.

(4)

The Competent Authority shall refuse the application if—

(a)

any of the grounds specified in subsection (3) is not fulfilled; or

(b)

after consultation with the National Competent Authority, the applicant is from, or otherwise based or operating in, jurisdictions which do not provide for adequate and effective measures that requires biological resources utilized within its jurisdiction to be accessed in accordance with prior informed consent and that mutually agreed terms to be established as provided under this Act.

(5)

Notwithstanding subsection (4), the Competent Authority may issue a permit relating to paragraphs (3)(c) and (d) if the

Competent Authority is satisfied that the application for permit does not undermine the conservation and sustainable use of biodiversity.

(6)

After giving due consideration to the application under subsections (1) and (3), the Competent Authority may—

(a)

approve the application, with or without condition, and issue a permit to the applicant; or

(b)

refuse the application, stating the grounds for refusal.

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(7)

Any person who accesses a biological resource or traditional knowledge associated with a biological resource without a permit under subsection (1) or contravenes any condition imposed on the permit under subsection (6) commits an offence and shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding one million ringgit.

Issue of permit for non-commercial purpose