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111th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                       111-7

======================================================================



 
     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.
---------------------------------------------------------------------------
    \1\A transcript of the November 10, 2009 hearing is included as an 
appendix to Executive Report 111-3.
---------------------------------------------------------------------------

              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.