99–115 

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 

R E P O R T 

[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. 


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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 


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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. 


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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. §§ 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. § 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. 


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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. §§ 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, 

§ 1677, P.L. 101–64 (1990 Farm Bill); 7 U.S.C. § 3241 and 20 U.S.C. 

§ 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. 


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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. §§ 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 


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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 


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

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. 

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 


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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. 


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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. 

Æ 


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