The interested party or their representative must duly complete the form called: "Application Form and Technical Guide for the basic research, bioprospecting, or economic exploitation project for access to the genetic or biochemical elements or resources of biodiversity or associated traditional knowledge," and attach the documents indicated in this article, which, if in a foreign language, must be presented with a translation into Spanish.
1. Application and Technical Guide Form.
The following information and documentation must be provided:
- a)Name and full identification of the interested party, including the place and means for receiving notifications. If it is not the interested party themselves, they must indicate the details of the legal representative and the power of attorney under which they are acting.
- b)If the applicant(s) are natural or legal persons domiciled abroad, a legal representative resident in the country shall be designated.
- c)Name and full identification of the principal investigator or the project coordinator in the case of economic exploitation, when this person is not the same as the interested party.
- d)Name and full identification of the scientific collaborator, national or foreign, in the activities of basic research, bioprospecting, or economic exploitation, if applicable.
- e)Name and full identification of the researchers, assistants, or authorized persons who will enter the place where the materials will be collected.
- f)Type of permit requested: basic research, bioprospecting, or economic exploitation.
- g)Title of the basic research, bioprospecting, or economic exploitation project.
- h)General and specific objectives of the project, and description of the purpose of the basic research (basic research), bioprospecting, or economic exploitation.
- i)The type of material of interest and the approximate quantity required. In the case of access to ex situ collections, also include the data from the collection of the materials.
- j)The material collection methodology, procedures, experimental techniques, laboratory techniques, and data analysis to be used in the access permit.
- k)Location of the place where the basic research, bioprospecting, or economic exploitation will be carried out, indicating the possessor or owner of the property where the materials are found in in situ condition, the person responsible for the materials maintained in ex situ conditions, including geographical coordinates and an indication of whether it is a protected wild area, an indigenous territory, a marine or freshwater area.
- l)The estimated timeline for the project development (material collection, analysis, and obtaining results) and the maximum number of times the site will be entered.
- m)Estimated budget of the basic research, bioprospecting, or economic exploitation project and source of financing.
- n)Indication of the destination of the materials or associated traditional knowledge.
- o)Indication of the utilization of local or indigenous traditional knowledge associated with the use of biodiversity resources, in the case of access to this type of knowledge.
- p)Indication of the studies or research that support prior knowledge about the elements or resources or associated traditional knowledge that is intended to be accessed.
- q)How the basic research, bioprospecting, or economic exploitation activities will contribute to the conservation of species and ecosystems, with emphasis on the species indicated in Articles 55 to 57 of the Biodiversity Law No. 7788.
- r)Possible risks of environmental or cultural impact that may occur due to the access, extraction, and processing of the material, as a result of granting the requested access permit to biodiversity resources, such as: genetic erosion, detriment to biodiversity, indirect harm to endangered species or species with reduced populations or subject to a ban (veda). Also, indicate the measures that will be taken during the project to reduce, mitigate, or compensate for the potential environmental or cultural risk.
- s)Schedule of activities and scope of the research.
- t)Declaration that everything stated has been made under oath.
- u)Attach the following documentation:
1. Copy of the project or preliminary project to be carried out.
2. Original certification of legal status, issued no more than one month prior, unless it indicates a shorter validity period, in the case that the interested party or the provider is a legal entity.
3. Photocopy of the identity card or passport of the interested party or their legal representative, of the principal investigator, or of the project coordinator in the case of economic exploitation, in cases where they do not appear in person at the Technical Office.
4. Documents or powers of representation, when applicable.
5. Present, if it exists, the agreement or contract, as stipulated in Article 22 of this regulation.
6. Proof of deposit made into the bank account of CONAGEBIO, corresponding to the payment of processing fees, administrative rates, and other expenses stipulated by the Technical Office in accordance with Article 17 of this Regulation.
7. A sworn statement when access to the genetic elements and resources of biodiversity is for research, development, and production purposes of living modified organisms of confined use, indicating that said activities will not be carried out with the purpose of causing adverse effects on human health, species, and ecosystems, nor for military and terrorist purposes.
8. Document describing biosafety measures in accordance with the standards established by recognized international bodies, when access to the genetic elements and resources of biodiversity is carried out for research, development, and production purposes of Living Modified Organisms of confined use within Costa Rican territory.
2. Prior Informed Consent Prior informed consent may be obtained and negotiated through the signing of agreements, contracts, or arrangements between the parties.
Public institutions shall have a maximum period of three months to decide on the granting of prior informed consent.
2.1 Common clauses. In all instruments, it is recommended to include common clauses that address the following aspects, depending on whether it involves basic research, bioprospecting, or economic exploitation projects. The Technical Office shall ensure that these terms are complied with in accordance with the third objective of the Convention on Biological Diversity:
- a)The general and specific objectives of the basic research, bioprospecting, or economic exploitation.
- b)The place or places where the basic research, bioprospecting, or economic exploitation will be carried out.
- c)Name and full identification of the researchers, assistants, or authorized persons who will enter the place where the materials will be collected.
If the parties agree that guidance and accompaniment from persons from local communities or indigenous peoples are required, these persons must be duly contracted and remunerated for this purpose.
- d)The type of material of interest and the approximate quantity of material required. In the case of access to ex situ collections, also include the original collection information of the materials.
- e)The material collection methodology, procedures, experimental techniques, laboratory techniques, and data analysis to be used in the access permit.
- f)The estimated timeline for the project development (material collection, analysis, and obtaining results).
- g)Mutually agreed terms on the exchange of knowledge associated with characteristics, qualities, uses, procedures, and care regarding the genetic and biochemical elements and resources of biodiversity.
- h)Terms agreed upon any other condition that the practice or the result of the participatory process provided for in Article 83 of the Biodiversity Law by local communities and indigenous peoples indicate as necessary.
- i)An express declaration by the interested party to respect the measures for protecting the knowledge, practices, and associated innovations of local communities and indigenous peoples, as established in the national legal system on sui generis community intellectual rights.
- j)Mutually agreed terms on a possible study of the cultural impact resulting from the access, if applicable.
- k)Mutually agreed terms on the type and forms of technology transfer or generation of information derived from the basic research, bioprospecting, or economic exploitation to the scientific collaborators, local communities and indigenous peoples, and the provider of the resource.
- l)Mutually agreed terms on the fair distribution of monetary and non-monetary benefits, in the short, medium, and long term, including, depending on the type of access permit, possible commercial profits from any product or by-product derived from the acquired material. The provider of the resources and the interested party shall set an amount of money, which may range from zero up to ten percent (10%) of the research budget and up to fifty percent (50%) of the royalties obtained.
The interested party shall undertake to deposit in favor of the provider up to 10% of the budget for basic research or bioprospecting, which shall be established according to the will of the parties, and may range from zero to ten percent.
It must be deposited in a bank account or wherever the direct provider of the elements and genetic and biochemical resources of biodiversity indicates for this purpose. In the event that the interested party does not immediately have the entire agreed-upon percentage available, payment of this percentage may be made in installments, in accordance with the number and percentage of budget disbursements received by the interested party, notifying the deposit in writing to the Technical Office and the provider. In the resolution granting the access permit, the Technical Office shall establish the obligation assumed. To agree upon this percentage, the number and price of the requested samples may be considered, among other criteria.
For economic use (aprovechamiento económico) projects, the interested party shall have the obligation to deposit up to 50% of the royalties it charges, in favor of the provider of the resources: the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación), INCOPESCA, local communities or indigenous peoples, farm owners, owners or those responsible for materials maintained in ex situ conditions, where the economic use will materialize, as defined or established in the prior informed consent (consentimiento previamente informado). Payment thereof may be made in installments, as negotiated in the prior informed consent, notifying the deposit or deposits in writing to the Technical Office and the provider.
When the interested party is the possessor, owner, or legal representative of the place where access to the elements and genetic or biochemical resources of biodiversity materializes, they shall have the obligation to pay up to 50% of the royalties it charges, in favor of the National Commission for Biodiversity Management (Comisión Nacional para la Gestión de la Biodiversidad, CONAGEBIO), for the purpose of investing it in the fulfillment of its legal competencies. The obligations shall be established by the Technical Office in the respective resolution approving the permit, which shall indicate the bank account into which such deposit must be made.
- m)Formal commitment by the interested party to record the origin of the elements and genetic and biochemical resources and the associated knowledge, in any publication, proceeding, or subsequent use given to them, including their eventual commercialization and that of their derivatives.
- n)Signature or fingerprint of the provider and the applicant, thereby formalizing conformity with the terms of access.
- o)Other clauses negotiated between the interested party and the provider of the elements and genetic and biochemical resources of biodiversity.
2.2. Specific clauses for bioprospecting and economic use projects. In addition to the foregoing clauses, for bioprospecting and economic use projects, the following clause must be included:
- a)The destination of materials. The provider may negotiate with the interested party the manner in which subsequent shipments of materials to destinations will be communicated to them, which must be reported to the Technical Office of CONAGEBIO for the corresponding legal proceeding, by the interested party.
2.3. Providers.
The interested party or their duly registered legal representative shall address the representatives of the place where access to the elements and genetic and biochemical resources of biodiversity will materialize, whether: the Director of the corresponding Conservation Area (Área de Conservación)—in the event the property is state-owned—farm owners, the authorities of local communities or indigenous peoples, and the possessors or those responsible for materials maintained in ex situ conditions, to thoroughly discuss the meaning and scope of access; the terms for the protection of traditional knowledge that they demand; and the practical, economic, and logistical aspects of access, in accordance with the stipulations of this article and Transitory Provision 2 of these Regulations.
If access is to occur in a coastal-marine area that is not encompassed by the definition of wetland in Article 40 of the Organic Law of the Environment (Ley Orgánica del Ambiente) or is not within the boundaries of a protected area declared as such, the prior informed consent must be processed before the Executive Presidency of INCOPESCA, which shall request the corresponding technical opinion.
If access is to occur on the edges of public roads and sidewalks, or in rivers, lagoons, and wetlands, the prior informed consent must be processed before the authorities of the corresponding Conservation Area.
In the case of indigenous territories, the information shall be governed by the provisions of Convention 169 of the International Labour Organization concerning Indigenous and Tribal Peoples in Independent Countries, Law No. 7316. The prior informed consent must also be presented in the corresponding indigenous language, if so required by the parties involved.
3. For basic research or bioprospecting In addition to the provisions of points 1 and 2, the interested party must:
- a)Submit a written formal commitment stating that, should the purposes of the permit be modified for either bioprospecting or economic use, the Technical Office will be notified and the respective established requirements will be fulfilled.
- b)Include in the prior informed consent, in accordance with the will of the parties, the commitment of the interested party to deposit in favor of the provider up to 10% of the basic research or bioprospecting budget. Said percentage may range from zero to ten percent.
4. For economic use In addition to the provisions of points 1 and 2, the interested party must:
- a)Provide the description of the commercial use of the elements or genetic and biochemical resources of biodiversity intended for extraction or the associated traditional knowledge.
- b)Provide the financial feasibility study for the product, under sworn statement and certified by a Certified Public Accountant (Contador Público Autorizado). If the interested party is a foreigner not residing in the country, the Public Accountant must be internationally certified. This study must provide a future projection for five years at market prices, which shall include the following data:
1. Estimated demand data for 5 years to determine income 2. Estimated supply data for 5 years to determine expenses-costs 3. Determine the estimated break-even point 4. Projected income statement 5. Projected balance sheet 6. Internal rate of return, net present value, and market discount rate according to the cost of capital estimated by the Central Bank and/or stock exchange 7. Cost of the genetic resource access process and percentage of use in the final product.
- c)Include in the prior informed consent, in accordance with the will of the parties, the commitment of the interested party to deposit up to 50% of the royalties it charges, in favor of the provider of the resource: the National System of Conservation Areas, INCOPESCA, local communities or indigenous peoples, farm owners, owners or those responsible for materials maintained in ex situ conditions, where the economic use will materialize.
(As amended by Article 1 of Executive Decree No. 41591 of September 18, 2018)
Procedure for authorization of permits, follow-up, and control