Natural Resources, Forestry, Fire and State Lands

Rule R652-150

Utah Bioprospecting Act

Notice of Proposed Rule

(New Rule)

DAR File No.: 34763
Filed: 05/02/2011 03:30:52 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The State of Utah recognizes, that due to the microenvironments present on state lands, there is a potential for unique organisms to have evolved that represent a valuable resource for the residents of the state. This bioprospecting rule has been enacted to foster the discovery and evaluation of these resources in a way that benefits the citizens of Utah. By registration of bioprospecting the state reserves the right for the citizens to share in any future economic value of these resources.

Summary of the rule or change:

This rule establishes the registration process and requirements for bioprospecting on state lands in the State of Utah.

State statutory or constitutional authorization for this rule:

• Section 65A-14-101

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs for the processing of the registration, but any costs incurred will be covered by the registration fee.

local governments:

The proposed rule will not result in direct, measurable costs or benefits for local governments.

small businesses:

There may be a costs to small businesses if the business engages in the act of bioprospecting, as they would be required to register with the division and pay a registration fee.

persons other than small businesses, businesses, or local governmental entities:

A person who engages in bioprospecting will be required to register with the division and pay a registration fee.

Compliance costs for affected persons:

Persons will need to pay a registration fee to the division in the amount of $50.

Comments by the department head on the fiscal impact the rule may have on businesses:

There would be a $50 fee and registration requirement.

Michael Styler, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Natural Resources
Forestry, Fire and State Lands
1594 W NORTH TEMPLE
SUITE 3520
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Jamie Barnes at the above address, by phone at 801-538-5421, by FAX at 801-533-4111, or by Internet E-mail at jamiebarnes@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/14/2011

This rule may become effective on:

06/21/2011

Authorized by:

Richard Buehler, Director

R652. Natural Resources; Forestry, Fire and State Lands.

R652-150. Utah Bioprospecting Act.

R652-150-100. Authority and Purpose.

This rule is adopted pursuant to the authority of Subsection 65A-1-4(2), which requires the Division to promulgate rules, and by Section 65A-14-101 et seq., to clarify the procedure through which operators must register with the Division and notify the Division of the intent to conduct bioprospecting activities.

The State of Utah recognizes, that due to the microenvironments present on State lands, there is a potential for unique organisms to have evolved that represent a valuable resource for the residents of the State. This Bioprospecting rule has been enacted to foster the discovery and evaluation of these resources in a way that benefits the citizens of Utah. By registration of Bioprospecting the State reserves the right for the citizens to share in any future economic value of these resources

 

R652-150-200. Definitions.

1. Bioprospecting: the removal from a natural environment for research or commercial use of a naturally occurring microorganism, plant, or fungus; or information concerning a naturally occurring microorganism's, plant's, or fungus' physical or genetic properties.

2. Nonfederal public land: land within the state that:

(a) is not owned, controlled, or held in trust by the federal government; and

(b)(i) is owned or controlled by:

(A) the state;

(B) a county, city, or town; or

(C) a governmental entity other than the federal government; or

(ii) is school and institutional trust lands, as defined in Section 53C-1-103.

3. Bioprospector: a person who engages in bioprospecting.

4. Person means:

(a) an individual;

(b) a nonprofit or profit corporation;

(c) a partnership;

(d) a sole proprietorship;

(e) other type of business organization; or

(f) any combination acting in concert with one another.

 

R652-150-300. Exceptions.

For purposes of Section 65A-14-101 et seq., and this rule, the following entities and/or activities are exempt from the requirements of this rule:

1. horticultural cultivation, except for horticultural genetic engineering conducted in a manner otherwise constituting bioprospecting;

2. an agricultural enterprise;

3. a forest and range management practice;

4. invasive weed management;

5. Christmas tree and related sales; and

6. incidental removal of a microorganism, plant, or fungus while engaged in bona fide research or commercial enterprises.

This rule does not modify or replace any other requirement under federal, state, or local law related to an act that under Section 65A-14-101 et seq. is considered bioprospecting, including any requirement to obtain the permission of a landowner. In addition, this rule applies only to bioprospecting activities occurring on non-federal public land.

 

R652-150-400. Procedures for Registration.

1. Registration Form. To register for bioprospecting activities, a person or entity shall complete and submit a registration form provided by the Division as specified in R652-3.

2. Time of Filing. The registration form shall be submitted to the Division's headquarter office, at 1594 West North Temple, Suite 3520, PO Box 145703, Salt Lake City, UT 84114-5703 during office hours. Except as provided, all applications received, whether by U.S. Mail or delivery over the counter, shall be immediately stamped with the exact date of filing.

3. Non-refundable Registration Fees. All registration forms shall be accompanied with a non-refundable registration fee, to be determined by the Division, as specified in R652-4.

4. Registration Form Review. Upon receipt of the registration form, the Division will review the form for completeness. If the registration form is deemed complete, the Division will acknowledge receipt and approval of requested registration by providing the person or entity a written correspondence to include a registration number, the date of registration expiration and a copy of the processed registration form included as an attachment.

 

R652-150-500. Term of Registration.

Registration shall be valid until June 30 of the current fiscal year. A registrant must renew the registration with the Division for any continuing activities into the new fiscal year by submitting a completed registration form to the Division as specified in R652-150-400.

 

R652-150-600. Reservation of Economic Interest.

1. The right of a person to engage in an act of bioprospecting is subject to the State's reservation of any right the State may have to an economic benefit derived from:

(a) the act of bioprospecting;

(b) a microorganism, plant, or fungus removed from a natural environment in the state; or

(c) information concerning a microorganism's, plant's, or fungus' physical or genetic properties removed from a natural environment in the state.

2. A person may not engage in an act of bioprospecting in this state if the person, as part of the registration required under Section 65A-14-201, does not agree in writing to negotiate in good faith with the State if the State asserts an economic interest described in R652-150-600-1.

3. Registrants shall record GPS coordinates of the sites where samples are gathered and provide those coordinates to the Division and include those coordinates in any publications resulting from the bioprospecting.

 

R652-150-700. Economic Benefits of Bioprospecting Denied.

1. A person who engages in an act of bioprospecting in violation of Section 65A-14-101 et seq. and this rule is guilty of criminal trespass punishable in accordance with Section 76-6-206.

2. If found guilty of a violation under Section 65A-14-101 et seq. or this rule, a court may in addition to a penalty imposed under Section 76-6-206, order restitution that is proportional to the economic interests the State may have under Section 65A-14-202.

 

KEY: registration, notification, bioprospecting

Date of Enactment or Last Substantive Amendment: 2011

Authorizing, and Implemented or Interpreted Law : 65A-14-101