[Senate Executive Report 111-7]
[From the U.S. Government Publishing Office]
111th Congress Exec. Rept.
SENATE
2d Session 111-7
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INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES FOR FOOD AND
AGRICULTURE
_______
December 15, 2010.--Ordered to be printed
_______
Mr. Kerry, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 110-19]
The Committee on Foreign Relations, to which was referred
the International Treaty on Plant Genetic Resources for Food
and Agriculture (Treaty Doc. 110-19), having considered the
same, reports favorably thereon with one understanding and one
declaration, as indicated in the resolution of advice and
consent, and recommends that the Senate give its advice and
consent to ratification thereof.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Key Provisions........................................3
IV. Entry Into Force.................................................8
V. Implementing Legislation.........................................8
VI. Committee Action.................................................8
VII. Committee Recommendations and Comments...........................8
VIII.Text of Resolution of Advice and Consent to Ratification........10
I. Purpose
The International Treaty on Plant Genetic Resources for
Food and Agriculture (the ``treaty'') aims to promote global
food security through conservation and the promotion of
sustainable agricultural practices. The centerpiece of the
treaty is the establishment of a multilateral system by which
all parties make available the genetic information that they
have accumulated pertaining to agricultural products included
in the list attached to the treaty. The treaty further
endeavors to employ a fair and equitable sharing of benefits
derived from the use and commercialization of plant genetic
resources for food and agriculture (``PGRFA'') among parties to
the treaty.
II. Background
A. THE TREATY
The development of sustainable, higher-yielding crop
supplies is an integral part of ensuring global food security.
By 2050, the world's population is estimated to reach 9.1
billion, 34% higher than today. The United Nations Food and
Agriculture Organization (FAO) predicts that farmers will have
to increase production by at least 70% by 2050 to satisfy the
demand for food due to the world's growing population,
urbanization, and rising incomes. Global agriculture has
addressed challenges of growth on a similar scale in recent
decades largely as a result to advances in plant genetics.
The FAO took up these issues in 1983 when it adopted the
International Undertaking on Plant Genetic Resources (IU). A
voluntary, non-binding instrument, the IU sought to ``ensure
that plant, genetic resources of economic and/or social
interest, particularly for agriculture, will be explored,
preserved, evaluated, and made available for plant breeding and
scientific purposes.'' In 1993, the FAO initiated an effort to
revise the IU to take into consideration outstanding issues
related to access to plant genetic resources for food and
agriculture. The FAO's intergovernmental Commission on Genetic
Resources for Food and Agriculture was tasked with negotiating
a new agreement that would maintain adherence to intellectual
property rights, retain the emphasis placed on sharing of
genetic information between countries, and move from a
bilateral to a multilateral approach with regard to the
dispensing of genetic information among nations. The result was
the Treaty on Plant Genetic Resources for Food and Agriculture,
which was adopted at the thirty-first session of the Conference
of the FAO on November 3, 2001, and entered into force on June
29, 2004. There are currently 127 contracting parties.
The treaty represents a shift from a fragmented bilateral
approach to plant genetic cooperation to a more systematic
multilateral framework that will permit member states to be co-
beneficiaries of advances in their respective knowledge and
understanding of plant genetic compositions. The treaty
recognizes that plant genetic resources are essential for
achieving global food security through efficient and reliable
agriculture, and establishes a multilateral system by which all
parties make available certain PGRFA. It is limited in scope in
two significant ways: (1) it applies only to plant genetic
resources for food and agriculture (``PGRFA'') and does not
cover plant genetic resources for chemical, pharmaceutical and/
or other non-food industrial applications; and, (2) it applies
only to international transfers of PGRFA (e.g. between two
Parties to the treaty or a party and a private entity within
another party). It is not applicable to transfer of PGRFA of a
purely domestic nature.
The United States signed the treaty on November 1, 2002,
and it was submitted to the Senate by President George W. Bush
on July 7, 2008. The executive branch has indicated that the
treaty can be implemented under existing authorities.
B. THE U.S. APPROACH TO PGRFA
The United States' food supply is based on intensive
agriculture. Intensive agriculture benefits from genetic
uniformity in crops, but it can also increase the potential for
crop vulnerability to new pests, diseases and environmental
stresses. Following an outbreak of Southern corn blight in 1970
that devastated 15 percent of the nation's corn crop, Congress
established the National Plant Germplasm System (NPGS) within
the United States Department of Agriculture's (USDA)
Agricultural Research Service (ARS). The NPGS is a national
network of public (federal and state) agencies (including more
than 20 federal gene banks located across the country), private
institutions and individuals. It is the primary entity in the
U.S. effort to conserve and utilize crop germplasm for crop
improvement. With a collection that includes about 85 crops,
the NPGS collects plant germplasm from all over the world and
is devoted to the free and unrestricted exchange of germplasm
with all nations and permits access to U.S. collections by any
person with a valid use, such as for research or breeding.
Germplasm users in other countries have the same privileges as
those in the United States. According to ARS, this policy has
grown out of the belief that germplasm, like the oceans and
air, is a world heritage to be freely shared for the benefit of
all humanity. Through these efforts, NPGS assists in improving
the quality and productivity of crops in the United States and
in the world. In 1990, Congress authorized establishment of a
National Genetic Resources Program (NGRP). NGRP has the
responsibility to acquire, characterize, preserve, document,
and distribute to scientists, germplasm of all life forms
important for food and agricultural production, which in
addition to plants includes animals, microbes, and
invertebrates.
III. Summary of Key Provisions
A detailed article-by-article discussion of the proposed
treaty is attached to the Letter of transmittal from the
Secretary of State to the President (the ``Letter of
Transmittal''), which is reprinted in full in Treaty Document
110-19. A summary of the key provisions of the proposed treaty
is set forth below.
INTRODUCTORY PROVISIONS
Objectives and Definitions (Articles 1-2)
The objectives of the treaty are the conservation and
sustainable use of PGRFA and the fair and equitable sharing of
the benefits arising out of their use for sustainable
agriculture and food security. The treaty defines ``Genetic
material'' as ``any material of plant origin, including
reproductive and vegetative propagating material, containing
functional units of heredity.'' Article 1 contains references
to the Convention on Biological Diversity, including the
statement that the treaty's objectives will be attained by
``closely linking this treaty to the Food and Agriculture
Organization of the United Nations and to the Convention on
Biological Diversity.'' The United States is not a party to the
Convention on Biological Diversity. References to the
Convention on Biological Diversity in the treaty do not create
any obligations under that Convention and do not affect or
enhance the status of that Convention as a matter of United
States or international law.
GENERAL PROVISIONS
General Obligations (Article 4)
Article 4 provides that each state party must ensure the
conformity of its laws, regulations, and procedures with its
obligations under the treaty. The executive branch has
indicated that the United States currently has all necessary
authority to implement the treaty. The U.S. Department of
Agriculture (USDA) and Agency for International Development
(USAID) will be the agencies primarily responsible for
implementation.
Conservation, Collection, Evaluation, and Documentation of PGRFA
(Article 5)
Article 5 lists the main tasks for Contracting Parties
regarding PGRFA and calls for the promotion of an integrated
approach to the exploration, conservation and sustainable use
of PGRFA. Each party, subject to its national legislation, must
take steps such as the survey and inventory of its PGRFA and
the promotion of the collection of threatened or potentially
useful PGRFA.
Sustainable Use of PGRFA (Article 6)
Article 6 obligates Parties to develop and maintain
appropriate policies and legal measures that promote
sustainable use of PGRFA, and it provides a non-exhaustive list
of measures that constitute such sustainable use. The executive
branch has indicated that the activities described in Articles
5 and 6 ``are consistent with current U.S. practice and would
be implemented using existing USDA authorities to operate the
National Plan Germplasm System and for the Agricultural
Research Service's (ARS) research activities derived from,
inter alia, 7 U.S.C. Sec. Sec. 1621-27, 2201, 2204, 3291, and
5841.''
National Commitments, International Cooperation, and Technical
Assistance (Articles 7-8)
Article 7 requires each party, as appropriate, to integrate
the measures referred to in Articles 5 and 6 into their
domestic agricultural and development policies and to cooperate
with other Parties in the conservation and sustainable use of
PGRFA. Under Article 8, States Parties agree to promote the
provision of technical assistance to Parties, especially those
that are developing countries, to facilitate treaty
implementation.
The activities described in Articles 7 and 8 are consistent
with current U.S. practice, including U.S. participation in the
FAO, USDA provision of technical assistance to further the
sustainability of global agriculture (provided pursuant to 7
U.S.C. Sec. 3291, and USAID program support for International
Agricultural Research Centers and national agricultural
research systems in developing countries (provided pursuant to
the Foreign Assistance Act of 1961, as amended).
Farmers' Rights (Article 9)
Article 9 expresses recognition of the contribution of
indigenous communities and farmers to the conservation and
development of PGRFA. The article refers to ``farmers' rights''
relating to PGRFA, though it does not attempt to define or
enumerate such rights. Under Article 9, the responsibility for
realizing ``farmers' rights'' with regard to PGRFA rests with
national governments. In accordance with each party's needs and
priorities, each party should, as appropriate and subject to
national legislation, take measures to protect and promote
Farmers' Rights. Such measures could include the protection of
traditional knowledge relevant to PGRFA, the right to equitably
participate in sharing of benefits from PGRFA utilization, as
well as the right to participate in making decisions, at the
national level, on matters related to conservation and
sustainable use of PGRFA.
In response to a question for the record on whether Article
9 requires states parties to afford particular rights to
farmers under their domestic law, the executive branch stated:
No, the treaty does not require states parties to afford any
particular rights to farmers under domestic laws. Instead it
specifically envisions that each party would define its own
particular measures in this regard. The United States already
recognizes the importance of consultation and recognition as
contemplated by this article, including in a variety of
national and state laws, regulations, and orders, including
contract laws, unfair competition laws, intellectual property
laws, and Executive Order 13175 (November 6, 2000)
``Consultation and Coordination with Indian Tribal
Governments.'' Further, USDA has long conveyed extensive non-
monetary benefits to farmers through land grant universities
and extension services authorized under, inter alia, 7 U.S.C.
Sec. Sec. 301 et. seq., 322 et. seq. and 341 et seq. USDA also
provides services specifically to indigenous communities
through, inter alia, Title V of P.L. 103-382 (Oct. 20, 1994);
Title XVI, Sec. 1677, P.L. 101-64 (1990 Farm Bill); 7 U.S.C.
Sec. 3241 and 20 U.S.C. Sec. 1059d.
MULTILATERAL SYSTEM OF ACCESS AND BENEFIT-SHARING
Establishing the MLS (Article 10)
Article 10 recognizes the sovereign rights of States over
their PGRFA, including the right to determine access. It also
establishes a multilateral system (MLS) of access and benefit-
sharing with the twin purposes of facilitating access to PGRFA
and sharing, in a fair and equitable manner, the benefits
arising from use of PGRFA.
Coverage of the MLS (Article 11)
The MLS covers those PGRFA listed in Annex I of the treaty
(currently 64 food crops and forages) that are under the
management and control of the Parties and in the public domain.
The list in Annex I covers many crops of importance to the
United States, including wheat, corn, rice, barley, potatoes,
citrus, apples, peas, oats and yams. Pursuant to Article 24,
any amendments to Annex I must be adopted by a consensus
decision of the treaty's governing body, and enter into force
for a state only after that state has ratified them.
Under Article 11, Parties also agree to take appropriate
measures to encourage natural and legal persons within their
jurisdictions who hold PGRFA listed in Annex I to include such
resources in the MLS. The United States currently does so,
consistent with existing law and policy, by encouraging private
entities in the United States to deposit germplasm in the U.S.
National Plant Germplasm System.
Facilitated Access to PGRFA within the MLS (Article 12)
Article 12 sets forth the treaty's core obligation: to
provide facilitated access to PGRFA under the MLS for other
Parties and legal and natural persons under the jurisdiction of
any party. Under Article 12(3), access to PGRFA is to be
provided in accordance with certain enumerated conditions,
including that (1) access be accorded solely for research,
breeding, and training for food and agriculture (and not for
chemical, pharmaceutical and/or other non-food or feed
industrial uses); (2) access be accorded expeditiously and free
of charge or at minimal cost; (3) recipients may not claim
intellectual property rights that limit access to PGRFA in the
form received from the MLS; and, (4) access to PGRFA under
development remains at the discretion of its developer during
the period of development. Facilitated access is to be accorded
through the Standard Material Transfer Agreement (SMTA) as
adopted by the governing body of the treaty.
As with other aspects of the treaty, the executive branch
will use existing authorities to implement treaty obligations
for the provision of facilitated access to PGRFA. The Letter of
Transmittal states:
USDA's Agricultural Research Service maintains the National
Plant Germplasm System, a network of more than 20 federal
genebanks that operate under authority derived from, inter
alia, 7 U.S.C. Sec. Sec. 2201, 2204, 3125a, 3291, 5841, and
5924. Under these authorities, the USDA Secretary is authorized
to provide, free of charge, samples of germplasm from the
federal genebanks to any requestor, so long as such provision
is not inconsistent with other laws or regulations.
Benefit-sharing in the MLS (Article 13)
Article 13 sets out the agreed terms for benefit sharing
within the MLS, recognizing that facilitated access to PGRFA
itself constitutes a major benefit. Other mechanisms
contemplated by the treaty include the exchange of information,
access to and transfer of technology, capacity building, and
the sharing of benefits arising from commercialization. With
respect to the exchange of information, the executive branch
indicated, in response to a question for the record, that the
treaty would not require the United States to make any
information available beyond that already freely distributed by
USDA and the National Plant Germplasm System. In relation to
the transfer of technology, the Letter of Transmittal indicates
that the treaty would require that Parties encourage access to
technology, but there is no obligation to ensure that such
access is actually provided. In response to a question for the
record, the executive branch indicated that USDA's existing
programs and practices are consistent with the treaty's
provisions on access to and transfer or technology.
Accordingly, the United States would not be required to take
any additional steps to comply with the treaty in this regard.
With regard to the sharing of benefits arising from
commercialization, the treaty establishes a system in which a
recipient of PGRFA (such as a company) who commercializes a
product that incorporates material accessed from the MLS must
pay an equitable share of the benefits resulting from the
commercialization. The payment is made into a Trust Fund
(established pursuant to Article 19), which is administered by
the treaty's governing body. If a company commercializes a
product containing PGRFA, it can choose either to make the
product freely available for further research and breeding, or
it can pay a small royalty into the Trust Fund. The current
royalty level is 0.77 percent of gross sales, which is
consistent with existing practice with respect to current
industry royalty rates.
U.S. entities that seek to access PGRFA from the MLS must
generally pay these royalties even though the United States is
not a party to the treaty. This is the case because foreign
seed banks already require acceptance of the SMTA terms,
including the royalty provision, as a condition of access to
their PGRFA.
FINANCIAL PROVISIONS (ARTICLE 18)
The parties agree to implement a funding strategy for
implementation of the treaty. The strategy aims to enhance the
availability, transparency, efficiency, and effectiveness of
the provision of financial resources for the treaty. Sources of
funding include, inter alia, funds derived from those transfers
associated with the MLS that require payments, voluntary
contributions, and funds from relevant international
mechanisms, funds, and bodies. There are no assessed
contributions from parties to the treaty. In response to a
question for the record, the executive branch indicated that it
has no plans to make voluntary contributions toward the
treaty's budget at this time.
INSTITUTIONAL PROVISIONS
Governing Body and Secretary (Articles 19-20)
Article 19 establishes a governing body composed of all
parties that functions to promote the full implementation of
the treaty. All decisions are taken by consensus, unless the
body agrees by consensus to another method of decisionmaking.
Adoption of amendments to the text and annexes must be through
consensus.
The governing body's functions include adopting a funding
strategy and budget and maintaining regular communication with
other international organizations to enhance institutional
cooperation on genetic resource issues. The secretary of the
governing body assists the governing body in carrying out its
functions and is appointed by the Director-General of the FAO,
with the approval of the governing body.
Compliance (Article 21)
The governing body is obligated to consider and approve
cooperative procedures to promote compliance with the treaty
and address issues of non-compliance.
Settlement of Disputes (Article 22)
The treaty provides for a non-binding form of dispute
settlement and contains a provision for third-party mediation
when negotiations fail. A party is subject to negotiation and
non-binding conciliation procedures regarding disputes about
the interpretation or application of the treaty, unless at the
time of ratification it declares in writing that it accepts one
of the specified binding forms of dispute settlement. In
response to a question for the record, the executive branch
indicated that it does not propose to make such a declaration.
Amendments to the Treaty (Article 23)
Amendments to the treaty may be adopted only by consensus
of all parties present at the relevant session of the governing
body.
IV. Entry Into Force
The treaty entered into force on June 29, 2004. The treaty
will enter into force for the United States on the ninetieth
day following the deposit of the U.S. instrument of
ratification.
V. Implementing Legislation
As noted above, the executive branch has indicated that the
United States currently has all necessary authority to
implement the treaty. Accordingly, no new legislation is
necessary or is being sought in conjunction with the treaty.
VI. Committee Action
The committee held a hearing to consider the treaty on
November 10, 2009. The hearing was chaired by Senator
Kaufman.\1\ The committee considered the treaty on December 14,
2010, and ordered the treaty favorably reported by voice vote,
with a quorum present and without objection, with the
recommendation that the Senate give advice and consent to its
ratification, as set forth in this report and the accompanying
resolution of advice and consent to ratification.
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\1\A transcript of the November 10, 2009 hearing is included as an
appendix to Executive Report 111-3.
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VII. Committee Recommendations and Comments
The committee believes that the treaty is in the interest
of the United States and urges that the Senate act promptly to
give advice and consent to ratification. The United States has
been a leader in the development and sharing of PGRFA, and
joining the treaty will ensure that the United States continues
in this leadership role. Through the treaty, the United States
will guarantee access for U.S. agricultural interests to
foreign countries' gene banks. Such access is critical to the
research and development of new crop varieties that are
resistant to pests and diseases, show improved yields, and are
more capable of tolerating environmental stresses.
U.S. accession to the treaty is supported by the
Departments of State and Agriculture and USAID. The treaty also
has widespread support among industry, including the American
Seed Trade Association, the National Farmers Union, the
American Soybean Association, the National Association of Wheat
Growers, the National Corn Growers Association, the
Biotechnology Industry Organization, and the Intellectual
Property Owners of America.
The committee considers that U.S. accession to the treaty
will help protect U.S. interests with regard to the sharing of
benefits from commercialization of PGRFA products. As noted
above, a company that commercializes a product containing PGRFA
may either make the product freely available or pay a small
royalty into the treaty's trust fund. The current royalty level
is 0.77 percent of gross sales, which U.S. industry considers
to be reasonable and consistent with industry practice.
At present, U.S. entities that seek to access PGRFA from
the MLS must generally pay these royalties even though the
United States is not a party to the treaty. This is the case
because foreign seed banks already require acceptance of the
SMTA terms as a condition of access to their PGRFA. Joining the
treaty will give the United States influence over how the
royalty funds are spent and a veto over efforts to increase
royalty levels. With these tools, the United States will be in
the best position to protect the interests of U.S. farmers,
researchers, and industry.
The ability to advance and protect U.S. interests with
regard to commercialization and the SMTAs is a core basis for
the widespread support among relevant industries. The American
Seed Trade Association informed the chairman and ranking
member, in a letter dated October 6, 2009, that ``[t]he U.S.
seed industry is committed to developing and marketing new and
improved varieties critical to U.S. producers. We believe the
importance of U.S. ratification of the treaty is reinforced by
the inclusion of the Standard Material Transfer Agreement
(SMTA) under the treaty. ASTA and many in agriculture believe
it essential that the U.S. Government be fully engaged as a
party to the international treaty so that the issues of
importance to the seed industry, and thus American agriculture,
are effectively addressed.'' The Biotechnology Industry
Organization (BIO) conveyed similar views concerning the United
States' ability to participate in the development and
implementation of the SMTAs. In a letter to the chairman and
ranking member, dated June 7, 2010, BIO emphasized that
``[o]nly through ratification does the United States have the
ability to fully engage in the process and to promote the
interests of the U.S. agricultural biotechnology industry.''
A. RESOLUTION OF ADVICE AND CONSENT
The committee has included in the resolution of advice and
consent one understanding and one declaration.
Understanding
The understanding, which will be included in the instrument
of ratification, conveys the U.S. position that Article 12.3(d)
of the treaty does not deny or diminish the availability or
exercise of intellectual property rights under national laws,
including U.S. laws.
Declaration
The declaration states that the treaty is not self-
executing. Prior to the 110th Congress, the committee generally
included such statements in the committee's report, but in
light of the Supreme Court decision in Medellin v. Texas, 128
S. Ct. 1346 (2008), the committee has determined that a clear
statement in the Resolution is warranted. A further discussion
of the committee's views on this matter can be found in Section
VIII of Executive Report 110-12.
VIII. Text of Resolution of Advice and Consent
to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO AN UNDERSTANDING
The Senate advises and consents to the ratification of the
International Treaty on Plant Genetic Resources for Food and
Agriculture, adopted by the Food and Agriculture Organization
of the United Nations on November 3, 2001, and signed by the
United States of America on November 1, 2002 (Treaty Doc. 110-
19), subject to the understanding of section 2 and the
declaration of section 3.
SECTION 2. UNDERSTANDING
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be included
in the United States instrument of ratification:
The United States of America understands that Article
12.3d shall not be construed in a manner that
diminishes the availability or exercise of intellectual
property rights under national laws.
SECTION 3. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This treaty is not self-executing.