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    • Understanding the ABS world – infographic
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    • ABS Stories
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ABS – dealing with practical challenges

For some researchers, the ABS process is smooth sailing. Others face a range of challenges that cause uncertainty about how to proceed, whether they are potentially doing the wrong thing etc. This can lead to significant delays in research or, in the worst case, research projects being abandoned.

Slide While there is no magic ABS wand, it's not all doom and gloom!

There are practical ways of dealing with some of the common ABS challenges. We’ve listed some of them here.

Finding out about ABS
Contacting the provider country
Navigating the ABS process
After the research ends

Challenges with finding out about ABS

 

Challenge: Incomplete, out of date or no information about ABS/contact details in the ABS Clearing House (ABSCH)

Possible ways to deal with this:

  • Try contacting the national focal point of the Convention on Biological Diversity (CBD), whose contact details can be found under the respective country profile. This person might be able to direct you to the relevant national authority.

 

  • Look for alternative information sources (e.g. websites of national authorities, fact sheets, publications  etc.)

 

  • Contact the Competent Authority in your own country, e.g. the German Federal Agency for Nature Conservation in Germany. These authorities often have information about ABS or may be able to provide some relevant information.

 

  • Notify the ABS Clearing House if the information provided is inaccurate, out of date or unhelpful so that the relevant authorities in the provider country can contacted and asked to update the information.

 

  • Engage personal contacts or local collaboration partners in the provider country and ask them to make enquires with the national authorities on your behalf. Experience of German researchers has shown that this is often more effective than making enquiries themselves.

 

  • Reach out to the GNP HuB – Participants in our network have gathered ABS experiences from all over the world. There may be someone in our network who has worked in the country of interest before and can point you in the right direction.

 

  • Have you looked at our ABS Stories? There may be relevant information there.

 

 

 

 

 

 

It is important to remember that not all countries (including both Parties and non-Parties to the Nagoya Protocol) include information about ABS in the ABS Clearing House but ABS laws still apply, even if they are not listed there.

Do not be surprised if the person listed in the ABS Clearing House does not have an official governmental email address. In some countries, it is not uncommon for some people to use, for example, a yahoo or gmail account for their work.

Some Parties to the Convention on Biological Diversity (CBD) also have ABS laws. Don’t forget to look at their country profile for further information. Contacting the CBD Focal Point could also be an important step when checking whether there are ABS laws in that country.

Conducting research on material in the absence of information is done at your own risk.“Ignorance of the law” is no excuse anywhere in the world. If you obtain and use material for research without first clarifying whether ABS laws apply to you, you may infringe the national laws of the provider country and you could be punished accordingly in that country. Some countries take this very seriously, imposing high fines, refusing future entry to the country (or specific regions) or jail terms for taking biological material without permission and in the absence of benefit-sharing.

Challenges when contacting the provider

 

Challenge: No response from a national focal point, long waiting times between replies or the contact person listed in the ABS Clearing House is not responsible.

Possible ways to deal with this:

  • Start early with contacting national authorities about ABS laws and procedures, i.e. long before the project starts in order to buffer any delays.

 

  • Sometimes the contact details in the ABS Clearing House are out of date and the person listed no longer works in that position. Your email may even bounce. Is a government department or ministry is listed in the profile? Try looking at the website of this government organization. You might be able to find a general contact person and can start with your enquiry there.

 

  • Contact the Competent Authority in your own country, e.g. the German Federal Agency for Nature Conservation in Germany. These authorities may be able to support your enquiry.

 

  • Use the local language in communications with the authority (if possible).

 

  • Ask local collaboration partners to make enquiries on your behalf. They may find it easier to engage with the local authorities (including in person) and are not restricted by language barriers etc.

 

  • Send friendly and respectful reminders.

 

  • Be transparent about your research so that the person receiving the enquiry knows how to deal with it.

 

  • Read the information available in the ABS Clearing House first. Some enquiries may not be necessary because the answer has been provided in the Clearing House. Such “nuisance” enquiries may not be answered or only as a low priority.

 

 

 

 

Are you being impatient? Some people expect an immediate response to their enquiry, which is not always possible. Perhaps you will get an answer but it might take a couple of weeks. National focal points and the people working at competent national authorities are busy. Some people have various functions, which in Germany are spread across multiple full-time positions. These people may be sick or take and in some countries, it is not uncommon that they are not substituted at these times.

The person tells you they are not responsible? No problem. The Focal Point is the first port of call to get information about ABS but that person may have nothing to do with the permitting process itself. If they are not responsible, just ask that person to forward you on to the right authority.

 

Challenge: Language barriers

Possible ways to deal with this:

  • Although most people use English in international settings, it may be useful to try contacting the national focal point in the local/official language. Some researchers in Germany have found that they receive a response more quickly if they do this.

 

  • Think about who can help overcome language barriers. This might be someone from your institution who speaks the language or a collaboration partner in the provider country could help.

 

  • Use an online translator to get you started, however, some caution is needed when engaging in formal communications and relying on online tools.

Challenges with navigating the ABS process

 

Challenge: Organizing application documents, including supporting documentation

Possible ways to deal with this:

  • Having an incomplete application can slow the ABS process down. Checking which documents you need to support your application and making a list will help you to make sure that your application is complete and correct. Supporting documentation might include, e.g. cooperation agreements, formal documents about your institution, the project proposal etc.

 

  • Make sure that all translations are done. Documents may only be accepted in the official language of the provider country, i.e. you cannot submit them in English. Check whether an official translation of certain documents is required at the beginning of the process and if so, organize it as soon as possible.

 

  • In your application you may need to specify exactly where sampling will be conducted and/or which species will be sampled. This is, of course, not always possible from the outset. Be transparent with the authorities about why this information cannot be provided in your application and ask how to proceed.

 

 

 

Challenge: No support in the provider country

Possible ways to deal with this:

  • Find a local institution that can act as a contact point or offer support services for the research project, even if the institution is not a scientific collaborator.

 

  • Having a local actor supporting your enquiries and the ABS process can be extremely helpful for German researchers. Sometimes having a local partner is even a pre-condition to getting an ABS permit. Consider finding a scientific collaborator in the country who may be more invested in supporting the ABS process, e.g. because the person and institute will benefit from the collaboration directly. The benefits of the collaboration and supporting ABS should be clearly communicated.

 

  • Even for research cruises, having an observer on the ship from the provider country could be helpful.

 

  • If establishing a new existing collaboration, start early with the negotiations. It may take some time to establish a collaboration agreement and if this is a pre-condition for applying for an ABS permit, negotiating the agreement can lead to delays.

 

  • The ABS process may require a considerable investment of time and resources by collaboration partners in the provider country who are supporting you. It is therefore important to take the costs of their engagement into account and to compensate these if necessary (e.g. travel costs).

 

 

 

Challenge: Communicating the benefits and importance of non-monetary benefit-sharing

Possible ways to deal with this:

  • If the authorities do not understand the nature of your research and how the research outputs can be used, they may have unrealistic expectations about the type of benefits that can be shared. It is important that you clearly communicate the non-commercial nature of your research and that the implications of this research are understood on both sides.

 

  • Be transparent about funding mechanisms, the scope of project, who is involved and what can be offered. This is key to building trust in the process.

 

  • Emphasize the relevance and utility of non-monetary benefits for the provider country, local community members and researchers etc.

 

  • Ask local actors, e.g. researchers, NGOs etc. to help demonstrate the usefulness of the research and any non-monetary benefits that will be delivered.

 

Challenge: Lack of experience with formal documentation (permits) and negotiating benefit-sharing agreements (contracts)

Possible ways to deal with this:

  • Model agreements and clauses may be helpful. Model clauses developed by funding bodies and professional associations usually include useful explanations about the purpose of the clauses, what needs to be considered etc. and can be a helpful resource, even if these clauses are not used directly as the basis for a benefit-sharing agreement. Check out the model clauses on our benefit-sharing page.

 

  • Researchers should ask the national authority in the provider country whether that country has a model benefit-sharing agreement which is used and if so, this should probably be used as the basis for negotiations before proposing an alternative agreement. These agreements may be on the website of the national authority or included in the relevant regulation, for example.

 

  • Many people have never seen an ABS permit or benefit-sharing agreement and real examples are not widely shared. Sharing such documents within or between institutions may be helpful, although there is some caution, e.g. due to confidentiality.

 

  • Ask colleagues about their experiences.

 

  • Check out our checklist – Build your ABS Strategy! Parts 2, 3 and 4 might help you prepare for negotiations by pointing our some of the important things you need to keep in mind!

 

  • Be transparent with the national authorities and clear in your communications. This can build trust in the process.

 

 

 

Challenge: Long delays in your research project

Possible ways to deal with this:

  • Contact your donor agency as soon as possible to inform them about the delay and the reasons. You may need to make changes to the project or apply for an extension.

 

  • Go up the chain of command at your institution and try to get high level support for the process, e.g. legal department, director’s office etc. Having others involved in the process may move things forward.

 

  • Consider the implications for people involved in the project, e.g. PhD candidates, and take appropriate steps to ensure that their needs are met.

Challenges after the research ends

 

Challenge: Using material again in future and repeating time-consuming ABS processes

Possible ways to deal with this:

  • The ABS process can cost time and money and many researchers would like to avoid repeating the process if possible. Some scientists may want to create a culture collection and reuse material in future for further research. Explore options with the provider country to allow future use under the existing ABS documentation.

 

  • Some providers may be concerned about future use and publication of further data, e.g. beyond taxonomic identification. Transparency with the provider about what is possible/intended in current and possible future research is essential. It may be necessary to notify the provider country that further research is taking place and to involve local researchers in that research.

In some countries, negotiations over future use of material cannot be avoided. There are restrictions in place that do not allow additional uses of the material without first applying for an additional permit.

 

The German Nagoya Protocol HuB is financed by the Federal Agency for Nature Conservation (Bundesamt für Naturschutz) with funds from the Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection (Bundesministerium für Umwelt, Naturschutz, nukleare Sicherheit und Verbraucherschutz)

 

 

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  • Some countries also have ABS laws even though they are NOT Party to the Nagoya Protocol. You still must comply with these laws!
  • Some countries in the EU also have specific national ABS laws.
  • If your research will involve traditional knowledge, you must take into account the national ABS rules in this regard.

In cases of non-compliance the National Authority (BfN) can:

  • confiscate the material.
  • prohibit further use and transfer of the material for research.
  • prohibit the publication or sharing of any results of utilization.
  • issue a fine of up to 50,000 EUR.

Check out more about the implications of non-compliance.

How do I check?

  • Start with the country profile in the ABS Clearing House (ABSCH).
  • Check out the legislative, administrative or policy measures section. If no measures can be found here, the interim reports might also contain relevant information. Tip! filter by country.
  • Be careful though. This information is not always complete or up to date. Some countries have ABS laws but they are not listed in the ABSCH.

To play safe and ensure legal clarity, always contact the ABS national focal point and/or the competent national authority. Tip! filter by country.

No answer?

  • Try contacting the national focal point of the Convention on Biological Diversity (CBD).
  • Ask collaboration partners in the country for help – easier for them to contact the authorities in their own country and language!
  • Ask colleagues who have worked in that country before.
  • Use the internet to find resources.
  • Contact the German Federal Agency for Nature Conservation (BfN). They have information about ABS and may be able to assist.

For research done in Germany, the German Federal Agency for Nature Conservation recommends using the DECLARE portal.

An account is required. Check with your institution as it may already have one.

This video and the user guide are very useful to start!

Starting your project before ABS permits have been granted is a violation of the EU Regulation and can get you in trouble if your institute is being checked by the German National Authority (BfN)!

In this regard, you have obligations under the EU ABS Regulation if:

  • You collected the material…
  • The collaborator who gave you the material collected it…
  • The material obtained from a collection was originally collected…
  • The shop or company where you bought the material collected it…

on or after 12 October 2014

This date is key because it is when the Nagoya Protocol entered into force.

When you obtain material from a collaborator, collection or trader, it is important to verify if there are benefit-sharing obligations linked to it.

For example: research on specific genetic or biochemical properties, gene function, gene expression, genetic modification, genome editing, breeding based on traits and their associated genes, among others.

The EU Regulation does not apply when research does not involve the study of the genetic or biochemical composition, e.g. storing biological materials in a collection, mere culturing of organisms, taxonomic identification, morphological or anatomical characterization, among others.

See the guidance document for more information and examples on “utilisation”.

Also check our FAQs section on it.

ABS obligations may or may not apply depending on the type of research. There could be exemptions for non-commercial or basic research.

Keep in mind that exemptions for local researchers may not apply if they conduct their research abroad (e.g. guest researchers bring material from their home country to study it in Germany).

Within the European Union, obligations stem from Regulation (EU) No 511/2014.

The EU Guidance Document contains information on scope, obligations and understanding whether your material/research is covered, including many practical examples. It is available in all EU languages and is a must-have resource.

Not all countries that are Party to the Nagoya Protocol regulate access, e.g. Germany. In such cases, you are free to use the genetic resources obtained from these countries without getting ABS permits.

You are obliged by the EU and German law to support user checks by the German Federal Agency for Nature Conservation.

Failure to support a user check is an administrative offence.

When you transfer the material to another person or institution:

  • Search if there are ABS documents relating to the material you have.
  • Check if the transfer to third parties is permitted.
  • Transfer also the information, e.g. a copy of the ABS permit or the number of the internationally recognized certificate of compliance (IRCC) published on the ABS Clearing House.

Having a good documentation system will save you headaches in the future.

Read the documents and understand your obligations as well as any conditions and restrictions on use of the material.

Keep in mind your commitments on benefit-sharing!

The due diligence declaration informs the competent authority in Germany that your research and material is Nagoya Protocol relevant and that you have complied with your ABS obligations.

Check out more about it!

“Derivative” means a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.

Some examples are: RNA, proteins (including enzymes), lipids, organic compounds (e.g. essential oils or resins) and other products of metabolism.

Also check our FAQs section on it.

In this regard, you have obligations in the EU if the country where the material comes from was a Party to the Nagoya Protocol and had ABS regulations at the time of access.

Why is ABS important?

Access and Benefit Sharing (ABS) measures ensure that research results support provider countries to:

  • Make informed decisions on conservation, sustainable use and management of their biodiversity.
  • Implement innovative solutions for productive activities, contributing to sustainable development.
  • Build capacities for national research.
  • Other benefits as agreed.

Even if ABS does not apply to your research project, you must be able to provide the German Federal Agency for Nature Conservation with the documentation that supports your conclusion. This will speed up possible compliance checks. Tip! save email correspondence with the provider country authorities on this regard.

For some countries, this can be determined by checking the date of entry into force of the national ABS legislation and compare it with when the material was collected in the field.  If you collected before the legislation went into force, you could be out of scope. However, in some countries “access” can also mean receiving material from an ex-situ collection or even when you start to use it (even if it was collected and left the provider country long ago). Keep this in mind!

Some laws only cover certain types of organisms or organisms collected in certain areas.

Check when:

  • you collect material outside of Germany
  • a collaborator gives you material from another country
  • you get material from a collection in Germany
  • you buy material from a shop or a company
  • traditional knowledge from indigenous peoples or local communities will be used for your research