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Genetically Modified Organisms Act 2004

 The Genetically Modified Organisms Act 2004. No. 3 of 2004

LEGAL SUPPLEMENT to the Government Gazette of Mauritius No. 40 of 30 April, 2004

______________________________________________________________________

THE GENETICALLY MODIFIED ORGANISMS ACT 2004

Act No. 3 of 2004

I assent

A R BUNDHUN

Ag. President of the Republic

15th April 2004

____________

ARRANGEMENT OF SECTIONS

Section

1. Short title

2. Interpretation

3. Application of Act

4. National Biosafety Committee

5. Objects of the Committee

6. Functions of the Committee

7. Application for GMO permit

8. Grant or refusal of GMO permit

9. Suspension or revocation of GMO permit

10. Prohibition notice

11. Stop order

12. Consultation on notices

13. Variation notice

14. Service of notice

15. Revocation of notices

16. Appeals

17. Confidentiality

18. Registration of facilities

19. Monitoring powers

20. Accidents

21. Labelling and identification

22. Offences

23. Jurisdiction

24. Regulations

25. Commencement

____________

AN ACT

To provide for measures to regulate the responsible planning, development, production, use, marketing and application of genetically modified organisms

Enacted by the Parliament of Mauritius, as follows -

1. Short title

The Act may be cited as the Genetically Modified Organisms Act 2003.

2. Interpretation

In this Act -

“accident” means an incident involving an unintended release of genetically

modified organisms which could have an immediate or delayed adverse impact

on the environment or human and animal health;

“applicant” means a person in control of a facility involving the genetic

modification of organisms, or of activities involving genetically modified

organisms, who applies for a GMO permit;

“authorised officer” means a public officer designated as such by the Permanent

Secretary;

“Chairperson” means the Chairperson of the Committee;

“Committee” means the National Biosafety Committee set up under section 4’

“contained use” means any operation undertaken within a facility which involves

genetically modified organisms that are controlled by specific measures to

effectively limit their contact with, and their impact on, the external environment;

“environment” has the same meaning as in the Environment Protection Act 2002;

“facility” includes, but is not limited to, the following:

(a) a building or part of a building;

(b) a laboratory;

(c) a green house;

(d) a glasshouse;

(e) an insectary;

(f) an animal house;

(g) a field;

(h) any other place,

where activities involving genetically modified organisms are carried on.

“general release” means the introduction of genetically modified organisms into

the environment by whatever means where the organisms are no longer

contained by any system of barriers or under any person’s control, so that the

organisms are likely to survive and be disseminated;

“genetically modified organism (GMO)” –

(a) means an organism, the genes or genetic material of which has

been modified in a way that does not occur naturally through

mating or natural recombination, or both; and

(b) includes any of its derivatives;

“GMO permit” means a permit issued by the Permanent Secretary under section

8;

“member” –

(a) means a member of the Committee; and

(b) includes the Chairperson;

“Minister” means the Minister to whom responsibility for agriculture is assigned;

“monitoring” means the maintaining of regular surveillance over, the checking of,

the warning about, or the recording of, any activity involving genetically modified

organisms;

“organism” –

(a) means a cellular or non-cellular biological entity, capable of

metabolism, replication, reproduction or of transferring genetic

material; and

(b) includes a microorganism;

“Permanent Secretary” means the Permanent Secretary of the Ministry;

“trial release” means the deliberate release of genetically modified organisms in

confinement into the environment under conditions where the degree of

dissemination of the genetically modified organisms is restricted by chemical,

physical or built-in barriers which prevent the survival of such organisms outside

the confined area;

“user” means a person responsible for the use of genetically modified organisms,

and includes an end-user or a consumer.

3. Application of Act

(1) This Act shall apply to the genetic modification of organisms which occurs

through –

(a) recombinant nucleic acid techniques involving the formation of

new combinations of genetic material;

(b) techniques involving the direct introduction into an organism of

foreign nucleic acid molecules; or

(c) cell fusion, including protoplast fusion, beyond the same

taxonomic family or hybridization techniques where live cells with

new combination of genetic material are formed.

(2) This Act shall not apply –

(a) to techniques involving genetic manipulation of human cells; or

(b) in cases where recombinant nucleic acid molecules or genetically

modified organisms are not employed.

4. National Biosafety Committee

(1) There is established for the purpose of this act a National Biosafety

Committee, which shall consist of –

(a) a Chairperson, with expertise in biotechnology and related fields,

appointed by the Minister;

(b) a representative of the Ministry;

(c) a representative of the Ministry responsible for environment;

(d) a representative of the Ministry responsible for health;

(e) a representative of the Ministry responsible for international trade;

(f) a representative of the Mauritius Sugar Industry Research

Institute;

(g) a representative of the University of Mauritius;

(h) a representative of the Food and Agricultural Research Council;

(i) a representative of the Mauritius Research Council;

(j) a law officer designated by the Attorney-General;

(k) a representative of consumer associations, appointed by the

Minister.

(2) (a) Every member, other than the ex-officio members, shall hold office

for 2 years and shall be eligible for reappointment.

(b) The Minister may revoke the appointment of a member referred to

in subsection 1(a) or 1(k) for any reason specified in section

37(3)(b) of the Interpretation and General Clauses Act or where

he is of opinion that the person is no longer qualified to be a

member.

(3) (a) The Committee shall meet as and when required by the

Chairperson, or upon request of not less than 3 members, but not

less than 4 times a year.

(b) 6 members shall constitute a quorum.

(4) The Committee may, with the Minister’s approval, co-opt any other

person to attend its meetings for a specific purpose, or period of time, but

without the right to vote.

(5) Where any matter is being or is to be, considered by the Committee and a

member has a direct or indirect interest in it or there is likely to be a

conflict of interest as a result of his participation in the debate, he shall

forthwith declare his interest and abstain from participating in the debate.

(6) The Minister may, at the request of the Committee, appoint independent

professionals or consultants to assist the Committee in the discharge of

its functions under this Act.

5. Objects of the Committee

The objects of the Committee shall be to advise the Minister on –

(a) all aspects concerning the importation, exportation, transit,

development, research, production, use, application, marketing,

sale and release of genetically modified organisms; or

(b) any other matter concerning genetically modified organisms that

may be referred to it.

6. Functions of the Committee

(1) The Committee shall have such functions as are necessary to further

most effectively the objects of the Committee, and in particular to –

(a) publish guidelines and a code of practice, with the approval of the

Minister, for all uses of genetically modified organisms;

(b) encourage public participation in decision-making while

maintaining confidentiality of information;

(c) advise the Permanent Secretary, as and when required, on the

appropriate strategy in cases of emergency;

(d) examine any application made pursuant to section 7, and make its

recommendations to the Permanent Secretary.

(2) In examining an application under subsection 1(d), the Committee shall

take account of the proposed activity of the GMO in respect of its likely –

(a) direct or indirect effects on the environment and human and

animal health; and

(b) social and economic effects on people and society.

7. Application for GMO permit

(1) Notwithstanding any other enactment, no person shall develop, use,

market, produce, release into the environment, transit, import or export

genetically modified organisms unless he holds a GMO permit issued

under this Act.

(2) An application shall be made to the Permanent Secretary in the form set

out in the First Schedule and on payment of a prescribed application fee.

(3) (a) The applicant shall submit a risk assessment report and a

contingency plan in the form set out in the Second Schedule.

(b) A risk assessment for the purpose of paragraph (a) shall be

carried out in a scientifically sound manner.

(4) On receipt of an application under subsection (2),

(a) the Permanent Secretary shall –

(i) cause a notice of any application for a GMO permit to be

published in the Gazette and for 3 consecutive days, in not

less than two daily newspapers;

(ii) invite all interested persons, who so wish, to lodge with the

Permanent Secretary such objections as they may have

against the application.

(b) the Minister shall make a statement in the National Assembly

informing it of such application.

(5) Any person who wishes to object to an application shall, not later than 21

days after the last date of the publication specified in subsection (4),

lodge his objection in writing with the Permanent Secretary.

(6) The Permanent Secretary -

(a) may, on receipt of an application, request the applicant to furnish

such additional information as he may consider appropriate;

(b) may, if he deems necessary, seek the views of any public

department, non-government organisation or any other person on

the application; and

(c) shall refer the application, together with any additional information

and views expressed thereon, to the Committee for its

recommendations.

(7) The Committee shall endeavour to identify and evaluate the possible

adverse effects of the genetically modified organisms on the environment

and on human and animal health.

8. Grant or refusal of GMO permit

(1) The Permanent Secretary, after taking into consideration the

recommendation of the Committee, may –

(a) Subject to subsection (3), grant a GMO permit and issue such

permit on payment of the prescribed fees and on such terms and

conditions as he may deem appropriate;

(b) reject the application, giving his reasons for so doing, with a

direction to communicate the decision together with the reasons to

the applicant.

(2) The reasons on which a decision under subsection (1)(b) is made shall be

communicated, by registered post, to the applicant, within 7 days of the

decision.

(3) No GMO permit shall be issued under subsection (1) (a) except after the

relevant particulars of the intended GMO permit holder shall have been

specified in regulations made to that effect.

(4) Any regulations made under subsection (3) may be subject to a motion

for disallowance under section 20 of the Interpretation and General

Clauses Act.

9. Suspension or revocation of GMO permit

(1) Where –

(a) a permit holder changes the type of activity allowed by his permit

or otherwise breaches any of the terms and conditions of his

permit;

(b) a permit holder moves his activity from a facility specified in his

application form to a facility which, in the opinion of the Permanent

Secretary, is not a fit and proper facility;

(c) the activity of the permit holder impacts adversely on the

environment or on human and animal health, the Permanent

Secretary may by notice in writing require the GMO permit holder

to show cause, within 7 days from date of service of the notice,

why his permit ought not to be suspended or revoked.

(2) Where the Permanent Secretary is satisfied that, having regard to all the

circumstances of the case, it is expedient to do so, he may suspend the

permit for such period as is reasonable in the circumstances, or revoke

the permit.

(3) The Permanent Secretary shall communicate, by registered post, any

decision under subsection (2) to the GMO permit holder within 7 days of

the decision.

10. Prohibition notice

(1) Where he is of the opinion that a facility or the manner in which the facility

is carrying on its activities involves a serious risk to environment or to

human or animal health, the Permanent Secretary may serve, or cause to

be served, a prohibition notice on the person owning, or managing, or in

charge of, or in control of the facility.

(2) A prohibition notice may be served whether or not –

(a) the facility, or the manner in which the activity is carried on,

constitutes a contravention of this Act;

(b) there is in force in relation to the facility a GMO permit issued

under this Act;

(c) there is before any Court of law or before a Judge sitting in

Chambers any case involving the subject matter in relation to

which a notice is being issued, unless the Court or Judge has

issued an order preventing the Permanent Secretary from issuing

the prohibition notice.

(3) A prohibition notice shall –

(a) state the Permanent Secretary’s opinion;

(b) specify the risk involved, as well as the way in which the facility, or

the manner in which the activity is carried on, is suspected to give

rise to the risk;

(c) specify the measures that shall be taken to eliminate the risk and

the period within which they shall be implemented;

(d) specify –

(i) the facility, or any aspect of the facility, that is prohibited

from operation or performance; or

(ii) any conditions subject to which the activity may be

resumed.

(4) A prohibition notice shall not be a bar to a prosecution for any offence,

even if there are consultations with the person served with the notice.

(5) Any person who fails to comply with a prohibition notice, shall commit an

offence.

11. Stop order

(1) Where a person commences or carries on any development or activity

without the relevant GMO permit issued under this Act, the Permanent

Secretary may, where such development or activity contravenes this Act,

serve, or cause to be served, on that person, or any person responsible

for the giving of instructions for the carrying on of such development or

activity, a stop order prohibiting the development or the activity.

(2) Any person who fails to comply with a stop order issued under subsection

(1) shall commit an offence.

12. Consultation on notices

(1) Before or at any time after issuing a notice, the Permanent Secretary

shall as far as he deems practicable, consult –

(a) the person affected;

(b) the Committee.

(2) The Permanent Secretary may consult a technical advisory committee set

up by him, or any public department, on a notice.

13. Variation notice

(1) Any person affected by a notice, may apply to the Permanent secretary

for an amendment of the notice.

(2) The Permanent Secretary, on his own initiative, or on application, may

amend a notice by causing to be served on the person affected a

variation notice.

(3) A variation notice shall –

(a) refer to the notice which is amended;

(b) specify the amendment to the notice;

(c) where necessary, vary the date specified in the notice.

(4) A variation notice shall supersede the notice to which it refers to the

extent of the amendment.

14. Service of notice

(1) A notice issued under this Act shall be served –

(a) personally on the person affected, or in the case of a body

corporate, at its registered address; or

(b) by registered post sent to, or by leaving a copy at, the last known

address of the person affected.

(2) Where service could not be effected by the means referred to in

subsection (1), the service shall be effected by affixing a copy of the

notice –

(a) at the facility which is the subject matter of the notice;

(b) where a contravention is being committed, or has been

committed, or is suspected to have been committed.

(3) A certificate of an authorised officer or any other officer of the Ministry as

to service under subsection (1) shall be prima facie evidence of effective

service of the notice on the person affected.

15. Revocation of notices

Where he is satisfied that –

(a)(i) the measures required to be taken in a notice have been

implemented; and

(ii) there exists no further risk to the environment or to human

or animal health caused by the activity or the manner in

which the activity is carried on; or

(b) the notice is not, or will not be effectual,

the Permanent secretary may revoke a notice and shall inform the person

affected in writing.

16. Appeals

(1) Any person who feels aggrieved by a decision taken by the Permanent

Secretary may, within 21 days of the communication of the decision to

him, and on payment of the prescribed fee, appeal against the decision to

the Appeal Board appointed under subsection (2) by a written notice

together with the grounds of appeal.

(2) The Minister shall appoint on an ad hoc basis an Appeal Board

comprising a Chairperson, who shall be a barrister with at least 5 years

standing at the bar, and 2 members, being persons with expert

knowledge in the field of biotechnology or related fields.

(3) A person appointed under subsection (2) shall challenge himself if he has

any direct or indirect interest in the subject matter of the appeal.

(4) Any appeal lodged before the Appeal Board shall be dealt with as

expeditiously as possible and the Appeal Board shall endeavour to

dispose of the appeal within 6 months from the date the appeal was

lodged.

(5) The Appeal Board may, after giving the parties to the appeal an

opportunity of being heard, pass such orders as it thinks fit, confirming,

varying or setting aside the decision appeal against.

(6) The Appeal Board shall send, by registered post, a copy of every order

made by it to the parties to the appeal within 7 days.

17. Confidentiality

(1) No person shall disclose any information acquired by him through the

exercise of his powers or the performance of his duties under this Act

other than –

(a) the description of any genetically modified organism, the name

and address of any applicant, the purpose of the contained use or

release and the place of use;

(b) the methods and plans for the monitoring of genetically modified

organisms in case of accident;

(c) the evaluation of any foreseeable disruptive impacts on human or

animal health or on the environment; or

(d) any other information as may be approved by the Permanent

Secretary.

(2) Where an applicant withdraws an application, any person who has

knowledge of the details of the application shall respect the confidentiality

of the information supplied.

(3) Nothing in the subsection (1) or (2) shall prevent the disclosure of

information –

(a) in so far as if is necessary for the proper application of this Act; or

(b) for the purpose of any legal proceedings under this Act.

18. Registration of facilities

(1) The Permanent Secretary shall keep a register of all facilities.

(2) Every GMO permit holder responsible for the management of any facility

shall register the facility with the Permanent Secretary.

(3) The register shall contain the –

(a) name and address of the GMO permit holder;

(b) details of the activities carried on; and

(c) location and description of the facility.

19. Monitoring powers

(1) Subject to subsection (2), where an authorised officer reasonably

believes that a facility is being used for any activity involving genetically

modified organisms, including contained use, trial release or general

release, he may enter and inspect the facility for the purpose of inspecting

and monitoring the activities carried on therein and to ensure compliance

with this Act, any regulations made thereunder and any GMO permit

issued under this Act.

(2) Where the authorised officer reasonably believes that any activity

specified in subsection (1) is being carried on in a dwelling house, he may

enter and inspect either with the consent of the owner or occupier of the

dwelling house, or in virtue of a warrant to that effect issued by a

Magistrate.

(3) The authorised officer may, in the course of an inspection –

(a) secure copies of any relevant document kept in the facility;

(b) secure, on reasonable grounds, any material which he believes to

be evidential material.

20. Accidents

(1) Every person who is informed or becomes aware of an accident shall

immediately notify the Permanent Secretary.

(2) Where a GMO permit holder notifies an accident, he shall supply to the

Permanent Secretary –

(a) all relevant information on the circumstances of the accident, the

identity, quantity and quality of genetically modifies organisms

released and any other information necessary to assess the

impact of the accident on the environment and on human and

animal health; and

(b) the details of any emergency measures taken to avoid or mitigate

any adverse impact on the environment and human and animal

health.

(3) The Permanent Secretary shall appoint on an ad hoc basis a Special

Committee comprising a Chairperson and 2 members, being persons

having wide expertise in the field relating to the accident, to enquire into

the circumstances of the accident and make a report with

recommendations to the Permanent Secretary.

(4) The Permanent Secretary may, after taking into consideration the report

and recommendations of the Special Committee, and where he considers

that the accident has had an adverse impact on the environment or on

human or animal health, take a decision under section 9(2).

(5) The Permanent Secretary shall inform as soon as reasonably practicable

any other country of any accident which may have an impact on that

country’s environment or on human and animal health in that country.

21. Labelling and identification

(1) Every GMO permit holder shall ensure that any genetically modified

organisms is clearly identified and labelled, specifying the relevant traits

and characteristics of the product.

(2) The labelling of any genetically modified organisms shall comply with

such requirements as may be prescribed.

22. Offences

(1) A person who –

(a) fails to comply with any condition, permit, or prohibition under this

Act;

(b) obstructs or hinders an authorised officer in the exercise of his

functions under this Act;

(c) provides information under this Act which is false or misleading in

any material particular;

(d) otherwise contravenes this Act,

shall commit an offence and shall, on conviction, be liable –

(i) on a first conviction to a fine not exceeding Rs 50,000 and

to imprisonment for a term not exceeding 2 years;

(ii) on a second or subsequent conviction, to a fine not

exceeding Rs 100,000 and to imprisonment for a term not

exceeding 4 years.

(2) In addition to any penalty under subsection (1), the Court may order the

forfeiture of any animal, plant, organism or any article used in, or

connected in any way with, the commission of an offence.

23. Jurisdiction

(1) An authorised officer may swear an information and conduct prosecution

in respect of an offence under this Act before a Magistrate.

(2) Notwithstanding section 114 of the Courts Act and section 72 of the

District and Intermediate Courts (Criminal Jurisdiction) Act, a magistrate –

(a) shall have jurisdiction to try an offence under this Act; and

(b) may impose any penalty and forfeiture provided by this Act.

24. Regulations

(1) The Minister may make such regulations as he thinks fit for the purposes

of this Act.

(2) Any regulations made under subsection (1) may –

(a) provide for the levying of fees and charges;

(b) lay down requirements for laboratory development of genetically

modified organisms;

(c) set out standards to which facilities for activities involving

genetically modified organisms should conform;

(d) make provision for quarantine, transit, marketing, sale, transport,

handling and packaging of genetically modified organisms;

(e) provide for liabilities of GMO permit holders in respect of prejudice

caused by their activities to other persons;

(f) amend the Schedules.

(3) Regulations made under this Act may provide that any person who

contravenes them shall commit an offence and shall, on conviction, be

liable to a fine not exceeding 50,000 rupees and to imprisonment for a

term not exceeding 2 years.

25. Commencement

(1) Subject to subsection (2), this Act shall come into operation on a date to

be fixed by Proclamation.

(2) Different dates may be fixed for the coming into operation of different

sections of this Act.

Passed by the National Assembly on the twenty-third day of March two thousand

and four.

André Pompon

Clerk of the National Assembly