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DENR Administrative Order ______
Series of 2004

SUBJECT: Rules for the Administrative Adjudication of Illegal Possession, Handling, Transporting and Conveying Hazardous and Toxic Chemicals and Chemical Substances

. Legal Authority

Pursuant to the provision of Republic Act 6969 and DENR Administrative Order No. 29, Series of 1992, and pertinent policies, rules and regulations, these Rules for the administrative apprehension, seizure , confiscation and disposition of illegally possessed, handled, transported and of the conveyance used to move or otherwise transport the same, are hereby promulgated.

II. Objectives

The objectives of these Rules are;

1) To compel handlers and transporters of hazardous and toxic chemicals in securing the environmental permits and other requirements.

2) To provide procedural guidelines to be followed by the various stakeholders for the seized and confiscated hazardous and toxic chemicals.

3) To minimize the potential risks posed by the proliferation of illegal transport and storage of hazardous and toxic chemicals to the safety and welfare of the public and the environment.

III. Definition

As used in these Rules

1) “Republic Act 6969” means an act to control Toxic Substances and Hazardous and Nuclear Wastes providing penalties for violations thereof, and for other purposes.

2) “DAO 29” means Implementing Rules and Regulations of Republic Act 6969.

3) “Chemical substance” means any organic or inorganic substance of a particular molecular identity excluding radioactive materials and includes – any element or uncombined chemical and any combination of such substances, or any mixture of two or more chemical substances.

4) “New chemicals” means any chemical substance imported into or manufactured in the country after December 31, 1993 and which are not included in the Philippine Inventory of Chemicals and Chemical Substances as published by the Department.

5) “Illegal chemicals” means those regulated hazardous and toxic chemicals and chemical substances which are considered new chemicals not listed in the Philippine Inventory of Chemicals and Chemical Substances, those listed in Priority Chemical List under the DENR Administrative Order No. 98-58 and those subject under Chemical Control Orders which do not have the proper permitting requirements.

6) “Apprehension” means interception and taking into custody over the chemical substances for inspection and/or investigation.

7) “Hazardous and toxic substances” means substances which present either:

• short–term acute hazards such as acute toxicity by ingestion, inhalation or skin absorption, corrosivity or other skin or eye contact hazard or the risk of fire or explosion.

• Long-term environmental hazards, including chronic toxicity upon repeated exposure, carcinogenicity (which may in some case result from acute exposure but with a long latent period), resistance to detoxification process such as biodegradation, the potential to pollute underground or surface waters, or aesthetically objectionable properties such as offensive odors.

8) “Seizure” means the official act of temporarily possessing and controlling those listed items in Section 2 hereof by authorized personnel of the government and pending formal administrative proceedings for the disposition.

9) “Confiscation” means sequestration after the determination of guilt in administrative proceedings as outlined in these Rules.

10) “Forfeiture” means a form of penalty or punishment, handing over or surrendering the confiscated products and becomes the property of the government of the Republic of the Philippines.

11) “Apprehending Officer” means the authorized personnel who conducts surveillance/inspection, investigation and apprehension of any suspected items/products.

12) “Seizure Officer” authorized and/or deputized by the DENR Secretary who assumes possession and control of apprehended items/products

13) Conveyance” means any mode or type or class of vehicle or craft or any other means used for transportation either on land, water, air or any combination thereof, whether motorized or not, used for in taking and/or maintaining temporary or permanent possession or control, gathering collecting, processing, disposing, or otherwise transporting, moving or transferring illegal chemicals.

14) “PICCS” means Philippine Inventory of Chemicals and Chemical Substances that listed all existing chemicals and chemical substances used, sold, distributed, imported, processed, manufactured, stored, exported, treated or transported in the Philippines.

15) “CCO” means Chemical Control Order that prohibit, limit, or regulate the use, manufacture, import, export, transport, processing, storage, possession and wholesale of those priority chemicals that DENR determined to be regulated, phased-out or banned because of the serious risks that posed to public health, workplace, and environment.

16) ”Liens” means a legal right to hold another’s property , specially to
satisfy a debt.

IV. Scope and Coverage

These Rules applies to the list of chemicals and chemical substances and products subject to apprehension, seizure, confiscation and forfeiture.

1) New chemicals that are not included under the Philippine Inventory of Chemicals and Chemical Substances. (PICCS)

2) Priority chemicals as listed in DAO 98-58 subject under the Chemical Control Order (CCO) without the requisite Registration Certificate and Importation Clearance.

V. General Requirements and Procedures

In addition to the general requirements under Title II and III of R.A. 6969. DAO 29, the following requirements and procedures are hereby provided:

1) Apprehending Authority

The following persons are authorized to apprehend items in Section 2 hereof:

a. DENR Apprehending/Inspection and Seizure Officers
b. Deputies (other government officials, members of law enforcement agencies and private citizens duly deputized by the DENR Secretary, his duly authorized representative or any Senior Officers/Personnel of the Pollution Control Division in collaboration with local governments)

c. Seizure Officers

Any DENR Officer designated as Seizure Officer takes the apprehended items/products from the apprehending officer and assumes possession and control of items apprehended pursuant thereto. The following positions are designated to effect the administrative seizure of items listed in Section 2 hereof within their respective areas of operation and jurisdiction,

a. The Regional Executive Director (RED) or, in his absence, the Regional Director for Environment
b. Any Senior Environmental Management Specialist (SEMS) actually assigned to the area of apprehension at the time thereof.
c. The DENR Secretary may from time to time, designate in writing such other DENR officers for the purpose

In cases of uncertainty, verification and confirmation be made from the EMB Central Office.

2) On-Site Determination of Probable Cause

Upon encountering a possible violation of RA 6969 and DAO 29, the apprehending officer shall establish his bona fides by identifying himself to any person (s) witnessing the activity by stating his full name, rank and official designation, exhibiting his current DENR Identification Card. He will invoke these Rules and announce the commencement of verification procedures. He shall then verify the existence of probable cause for an apprehension through on-site inspection and determination.
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3) On-Site Inspection and Immediate Release

The Apprehending Officer will conduct an ocular inspection of all required authorization, permits and clearances of chemicals and conveyances as well as labeling and containment. When all required authorization, permits and accompanying documents are verified to be in order and the probable cause for an apprehension is absent, the release of all items inspected must be effected immediately. In such cases, the official DENR seal of inspection/verification must be rubber stamped or otherwise affixed on all transport documents inspected. Apprehending Officers should always have in their possession, DENR seal in making apprehension. Documents inspected should be stamped/sealed and complete facts of inspection and release and all other pertinent information be stated at all times, with signature and full printed names.

4) On-Site Recording and Preservation of Data and Evidence

`` Should inspection indicate a violation of environmental laws, rules and regulations and the probable cause for an apprehension is present, the apprehending officer shall immediately

a. Inform the person (s) apprehended of the DENR Officer’s findings and state the cause of his apprehension in accordance with these Rules.

b. Record of the names, addresses and other available data of all persons found in possession, exercising control and/or supervision over, or performing or otherwise involved in the possession, supervision, control, gathering, processing and/or transporting the items.

c. Itemize/list all on-site machinery and tools and implements used in the commission of or otherwise connected with the offense.

d. Indicate the date and sign the on-site record and request the offender to sign the same above their printed names. In case of refusal to sign as required, such refusal shall be written thereon in their presence as proof of such action.

5) On –Site Determination of Fraudulent Misrepresentation

a. The quantity or volume of shipment exceeds what is authorized, documented, manifested and declared.
b. Discovery of misrepresentation on the quantity being verified pursuant thereto.
c. Discovery of false documentation i.e. permits and other requirements

In both cases, the entire shipment shall be considered illegal due to fraudulent misrepresentation with intent to prejudice the Government. Such shipments shall be apprehended, seized and subject to confiscation or forfeiture proceedings. The apprehending officer shall effect the apprehension and proceed even if the requisite authorization and supporting documents for all or parts of said shipments are verified to be otherwise in order.

6) On-Site Report of the Apprehension

The following information shall be reported upon apprehension:

a. Time, date and place of apprehension
b. Full name and address of the offenders(s) on-site
c. Full names of all persons accompanying or providing on-site assistance the apprehending officer.
d. Circumstances that led to the apprehension
e. Names of local government officials present and other person witnessing the apprehension.
f. Preliminary description of the item(s) or chemicals and conveyance being apprehended.
g. Place, time and date of origin and intended destination, consignor and consignees of the items being apprehended
h. Comments, observations and recommendations.
i. Full name, ID Number and signature of Apprehending Officer.

VI Procedures for Summary Administrative Apprehensions

1) Upon completion of the foregoing procedure and finding the existence of the probable cause to make an apprehension, the apprehending officer shall issue an Apprehension Receipt, which shall contain the following:

a. The precise nature of the offense cited
b. The time, date and place of issuance of the Apprehension Receipt. The Receipt must be pre-numbered.
c. The full names in print and signatures of both the apprehending officer and of the offender should the offender(s) refuse to sign or acknowledge in writing his receipt of the Apprehension Receipt, or refuse to take delivery thereof. Such fact shall also be stated in writing on the apprehension receipt with an explanation.

2). Transparency of apprehension proceedings

The documentation activity outlines above shall be undertaken with full transparency and in the presence of the offender (2) owner, custodian, consignor, consignee, or other persons(s) claiming the apprehended items or representatives of any said persons, as well as any other concerned or interested persons. If the documentation activity is undertaken in the absence of anyone interested herein, such fact shall be stated on both the On-site Report and Apprehension Receipt with an explanation, if any. Moreover, the Apprehending Officer shall immediately implement such measures to ensure that any persons known to have an interest in the apprehended items but who are absent are informed without delay of the fact of and reason for the apprehension as well as invite said person to attend the proceedings stating the date, time and date when the documentation activity will resume.

VII. Procedure for Summary Administrative Seizure

Upon receipt from the Apprehending Officer, the authorized Seizure Officer received the delivered item stating the date, place and time, name of Apprehending Officer and an itemized list of the delivery. The Seizure Officer verify the existence of a prima facie case against the offender by examining all the documents submitted to him by the Apprehending Officer as required by the foregoing provisions.

1) He shall confirm that the items delivered to him strictly coincide with the itemized list thereof reflected in the documents of apprehension. Confirmation shall be completed within the sane day. In case of variance between the items delivered and those reflected in the documents of apprehension, he shall require a sworn statement from the apprehending office with a complete, clear and concise explanation for said variation, which shall form an integral part of the permanent records of the case.

2). In verifying the existence of a prima facie case against the offender, the appropriate DENR officer shall personally examine the apprehending officer and any witnesses appearing before him in order to satisfy himself that an offense has been committed, that the evidence at and indicates the offender is probably guilty hereof, and that the terms delivered to him are the proceeds of the violation. Should a prima facie case against the offender be thus found, the Seizure Officer shall immediately declare the fact by issuing a Seizure Order for the apprehended item(s).

3) In case the apprehended conveyance involved is a government vehicle, the aforesaid procedure shall be followed. The vehicle shall be immediately released to the highest regional official of the office who owned the same, upon acknowledging that the said conveyance has been used in violation of RA 6969, Rules and Regulations.

4) In case such delivery of any apprehended item is impracticable for any reasons, the Apprehending Officer shall deposit the same for temporary safekeeping at the nearest coordinated and approved areas of DENR and EMB Offices.

VIII. Procedures for Summary Administrative Confiscation

The following procedures shall be complied with for the summary administrative confiscation of items listed in Section 2 hereof. Immediately upon, or as soon as practicable after issuance of a Seizure Order, the following outline shall be followed in the summary seizure proceedings

1) Notice of Hearing or Technical Conference

The notice shall be issued by the DENR Officer scheduling a formal, summary hearing at a specified place and date within one (1) calendar week from date of the Seizure Order on, upon written request and signature of all interested parties, within two (2) calendar weeks from said date. The scheduled hearing can be postponed through request of the agency, DENR-EMB.

2) Hearing

The DENR Officer who issued the Seizure Order shall preside as the Hearing Officer or his authorized representative. In the said hearing or technical conference, which shall be recorded and of summary nature, all interested parties shall be heard by themselves and/or through counsel of choice.

A complete set of documents and supporting documents are required

IX. Decision

The decision shall be rendered by the Regional Executive
Director upon recommendation of Hearing Officer. Substantial evidence shall suffice to sustain an administrative decision adverse to interested party calling which, a ruling shall be issued dismissing the case, and the controversy deemed closed and ordering that the seized items be returned.

When the evidence of warrants, a ruling shall be issued declaring he seized items to be confiscated in favor of the Government, together with recommendations for further prosecution, if any.

the absence of compelling reasons, which shall in all cases be stated on the record, confiscation proceedings shall be terminated within fifteen (15) regular business days from commencement hereof. A transcript of stenographic notes or minutes taken at these proceedings shall form part of the permanent records of the case together with the Decision issued thereon citing the evidence adduced and reasons supporting the ruling. The Decision shall become final and executory, upon the lapse of fifteen (15) regular business days unless a Motion for Reconsideration is final.

Settlement of Payment

How much?
The basis of payment

Laboratory Testing and Analysis

Proper referral to identified and registered laboratories in the area of apprehension and/or to the EMB Chemists and analysts who are familiar with type of chemicals.

X, Motion for Reconsideration and Appeal

A party aggrieved by the decision may file only one (1) Motion for Reconsideration within a non-extendible period of fifteen (15) days from receipt of the Decision, containing a concise statement of the grounds rely upon for the purpose. The Hearing Officer shall issue a ruling on such Motion within fifteen (15) days from receipt thereof, stating the ground therefor. Unless a Notice of Appeal is filed by a Party with the Hearing Officer within a non-extensible period of 15 days from receipt of Notice of Appeal, the Hearing Officer shall transmit the complete rewards of the case to the Office of the Secretary for appropriate action.

Appeal

Within a non-extensible period of 15 calendar days from receipt of the ruling upon a Motion for Reconsideration, a Party, after paying the corresponding Appeal Fee, may file an appeal with the Office of the Secretary, which shall contain a concise statement all the issues of fact and law raised on appeal. Upon receipt hereof, the Appeal shall be forwarded to the Undersecretary who shall submit his recommendations too the Secretary within a period of 15 regular working days.

1) Executive Decision of the DENR Secretary

A party aggrieved by the decision rendered by the Secretary may within 15 days from receipt thereof, file but one Motion for Reconsideration, falling which the same shall become final and executory. However, the aggrieved party may within the same period appeal said Decision to the Office of the President of the Philippines pursuant to Executive Order No, 19 Series of 1996.

When decision becomes final and executory upon the lapse of the reglamentary periods herein prescribed the Undersecretary shall motu propio or upon Motion by any Party, issue a Certification to that effect for submission to the Secretary. The Certification shall cited the items confiscated in accordance herewith.

2) Termination of Case

Upon approval by the Secretary, confiscated items shall become permanent property of the Government. The Secretary’s approval shall be attached to and shall form part of the permanent records of the case, which, from the date hereof is considered terminated and closed.

Provision of Storage for confiscated chemicals

Need to fill up based on the case study

Disposition of Items confiscated in favor of the Government

Need to fill based on the case study
XI. Expenses

1) All expenses incurred by the DENR in transferring apprehended items to the place of safekeeping, the necessary maintenance thereof, and delivery to any other place or person as may be required by the circumstances and/or in the implementation of the procedures shall be added to the value thereof. Such expenses shall attach as primary liens over such items in favor of the Department and shall be deducted from and reimbursed to the DENR as administrative costs from the proceeds of the sale thereof if any.

2) The Department shall allocate a fund to enable field officers to advance expeditiously hauling expenses and avoid deterioration and or loss of economic value of the products/chemicals/conveyances.

3) The Secretary may promulgate such other guidelines, rules and regulations as may, from time to time be deemed necessary or appropriate under the circumstances in order to ensure the recovery of expenses incurred by the Department in this regard.
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XII Remittance of proceeds of Sales

All proceeds from the sale or other disposition of any items confiscated pursuant hereto are property of the Government of the Philippines. Proceeds in cash revert to the General Fund and shall be applied in strict conformity with applicable laws, rules, and regulations.

Immediately upon receipt of payment, or any part thereof for any items sold or otherwise disposed of pursuant to these Rules, the entire amount so received shall, in the form of Cashier’s Cheque or Manager’s Cheque and together with complete documentation and concise explanation therefore be terminated by the Cognizant of the Regional Committee on Bids and Awards to the DENR, Central Office where a separate account shall be established for the purpose.

Quarterly Reports on all funds remitted to Central Office shall be submitted by the cognizant Officer to the Secretary. Quarterly Reports shall be consolidated into an Annual Report to be similarly submitted in the end of the fiscal year.

XIII Central Office Secretariat for Administrative Cases

Regional Level responsible for small and medium scale operation

Central Office for big scale operation.

XIV Implementing Guidelines and Instructions

The Secretaries for Field Operations and for Legal and Legislative Affairs may from time to time, issue such relevant other guidelines, directives and implementing instructions for the orderly and effective implementation of these rules. Any amendments and revision may be done every three years.

XV Penalty Clause

Any violations specified in this Memorandum Circular will subject those persons responsible therefore to administrative and criminal sanctions as specified under Title V, Chapter XI, Sections 41 and 42 of DAO 29, Series of 1992.

XVI Transitory Clause

These Rules shall govern all administrative cases involving chemicals and products containing chemicals, equipment, conveyance used in connection therewith, initiated after the effectivity hereof, as well to further proceedings in cases then pending, except to the extent that, in the opinion of the Secretary or of the Court in appropriate cases, an application hereof would not be feasible or would occasion injustice, in which even the formerly applicable procedures shall be implemented.

XVIII Effectivity

This Order shall take effect thirty days (30) after the publication once a week for two consecutive weeks in a newspaper of general circulation.

MICHAEL T. DEFENSOR
Secretary

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