[Nhcoll-l] Nagoya is coming down the pike

Tue Mar 1 03:57:11 EST 2016

Dear all,

even though the US is not party of the CBD (and NP), US colleagues 
wishing to access genetic resources in Providing Countries outside the 
US are obliged to follow national access laws of Providing Countries. 
Access and benefit sharing will be laid down in mutual contracts, which 
are of course legally binding, also for colleagues & institutions in the US.

The only difference is that Providing Countries cannot open law cases at 
US courts directly (which is possible between NP parties), but US 
colleagues might be tied to US courts indirectly under the Lacey Act. 
Also, there is a huge reputational risk for researchers and institutions 
which could negatively impact existing collaborations.

We (CETAF & the Legislation and Regulations Committee of SPNHC) are 
currently working on practicable solutions (voluntary Best Practices 
open for researchers and institutions inside and outside CETAF), which 
will be presented during an own workshop during the SPNHC Meeting in 
Berlin this June.

Further reading:
SPNHC Connection: 
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.spnhc.org_media_assets_ABS-2DGlobalImplications-5FSPNHC-2DSep2014Vol28.pdf&d=AwID-g&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=CLFZJ3fvGSmDp7xK1dNZfh6uGV_h-8NVlo3fXNoRNzI&m=2EPwe4xdJVV76n1tDCnsjB6uCx8wzMP0R-28g6lqZ24&s=_RzOipiQo3I1E9gcXcToCdhqneM_N5eZbhQJIyeWHWk&e= 
CETAF Code of Conduct: 
https://urldefense.proofpoint.com/v2/url?u=http-3A__cetaf.org_sites_default_files_final-5Fcetaf-5Fabs-5Fcoc.pdf&d=AwID-g&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=CLFZJ3fvGSmDp7xK1dNZfh6uGV_h-8NVlo3fXNoRNzI&m=2EPwe4xdJVV76n1tDCnsjB6uCx8wzMP0R-28g6lqZ24&s=izvgUs_9OvECoutTGyJ5GcyoMSCV_bT8FjMr_vTw3qA&e= 

and
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.spnhc.org_37_best-2Dpractices&d=AwID-g&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=CLFZJ3fvGSmDp7xK1dNZfh6uGV_h-8NVlo3fXNoRNzI&m=2EPwe4xdJVV76n1tDCnsjB6uCx8wzMP0R-28g6lqZ24&s=GoPUmwVTwhvw2uNbOZ2zXtfZyPogc7L5CPiPt_RlxnI&e= 

All the best
Dirk

Am 29.02.2016 um 18:16 schrieb Ellen Paul:
> Please forgive the vagueness of this information but I'm only now 
> beginning to wrap my head around Nagoya and what it will mean for 
> importing into and exporting from the U.S. I wanted to share what I 
> learned from my conversation with the State Dept. staffer who is the 
> U.S. point of contact (and herself holds a Ph.D in evolutionary 
> biology, so she speaks the language, so to speak).
>
> Realize that the U.S. is not a party to the Convention on Biological 
> Diversity and therefore can't ratify the Nagoya Protocol on Access to 
> Genetic Resources and the Fair and Equitable Sharing of Benefits 
> Arising from their Utilization (ABS). The ABS is a supplementary 
> agreement to the Convention on Biological Diversity. It provides a 
> transparent legal framework for the effective implementation of one of 
> the three objectives of the CBD: the fair and equitable sharing of 
> benefits arising out of the utilization of genetic resources.
>
> However, the U.S. (through the State Dept.) attends the meetings as an 
> observer and does the best it can in that constrained role to 
> represent the interests of the U.S. and its citizens.
>
> Nagoya has been in force since 2014 but as with all international 
> agreements, it takes a while for the parties to get their internal 
> acts together, i.e., developing in-country implementing legislation, 
> regulations, procedures (witness CITES - about 1/3 of the countries do 
> not yet have internal legislation - and that's been 30 plus years).
>
> To keep up with Nagoya's development, there is a webpage: 
> https://urldefense.proofpoint.com/v2/url?u=https-3A__absch.cbd.int_&d=AwID-g&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=CLFZJ3fvGSmDp7xK1dNZfh6uGV_h-8NVlo3fXNoRNzI&m=2EPwe4xdJVV76n1tDCnsjB6uCx8wzMP0R-28g6lqZ24&s=sRJZrLRdPMGBN8imB-tzgS2yc86INBdFbm59aFsaVwo&e= 
>
> For each country, you can determine if there is a
> - focal point (contact person)
> - competent national authority (agency designated to implement)
> - internal legislation, regulation, or procedure
>
> In theory, this will generally affect scientific exports in that you 
> will have to show that you have met the requirements of the exporting 
> country in terms of
>
> - having a valid access agreement, if one is required
>  and
> - prior informed consent (of the owner of the resource) - in other 
> words, before getting permission to collect, you told that owner that 
> the resource might be
> used for commercial benefit and that you would meet the requirements 
> of the owner, if any, for sharing of those benefits
>
> Where this gets messy in a hurry is pre-Nagoya "stuff" because each 
> country is going to have its own rules. One would hope that the 
> countries realize that anything but prospective application is going 
> to be a huge problem. You can't retroactively get prior informed 
> consent once something was already collected. But even prospectively, 
> each country may have a different starting date.
>
> Right now, in the U.S., the only federal landowner with a benefits 
> sharing agreement is the National Park Service. Therefore. if you 
> collect on NPS lands, be sure to keep both the permits and the 
> benefits sharing agreements. In perpetuity. Because you never know 
> when someone will export that material. If it is going to a Nagoya 
> country, it is going to be a legal requirement.
>
> In terms of private landowners in countries, such as the U.S., if the 
> U.S. law does not require prior informed consent, then in theory, you 
> will not have to prove prior informed consent in order to export to a 
> Nagoya country.
>
> Really, in a way this is similar to the way the U.S. Lacey Act works 
> in requiring that in order to import, you have to have complied with 
> all the laws of the exporting country. That could be collecting and/or 
> export permits, but in countries like India and Brazil, it is benefits 
> sharing agreements, too.
>
> What is even more worrisome is that the Nagoya Protocol doesn't define 
> utilization in a precise manner:
>
> /Utilization of genetic resources” means to conduct research and 
> development on the genetic and/or biochemical composition of genetic 
> resources, including through the application of biotechnology as 
> defined in Article 2 of the Convention//
>
> /Which is:
>
> /"Genetic resources" means genetic material of actual or potential value.
>
> /(Pretty much anything with nucleic acids)
>
> So to be on the safe side, you pretty much have to assume that you are 
> going to be dealing with Nagoya. If exporting from the U.S., that 
> means having to prove compliance with U.S. law, which at this point, 
> except for the NPS, does not require benefits sharing agreements. To 
> the best of my knowledge, there are no prior consent requirements in 
> any state, but I haven't researched it. It may (probably will) require 
> proof that the material was collected lawfully and if that requirement 
> is retrospective, that could be a problem.
>
> However, it is definitely going to be prospective, so from now on, you 
> are going to need to keep (paper or scan? who knows?) all documents 
> associated with specimens and samples. Forever.
>
> If a country's requirement is retroactive and the material was 
> collected before permits were required, it is not clear how you will 
> be able to prove that. It is not yet known if some U.S. government 
> agency will issue documentation to verify that no permit was needed. 
> If a permit was needed but you have no copy, and the issuing agency 
> has no copy...who knows.
>
> FWIW, here's the EU regulation, which may very well be a model for 
> other countries: 
> https://urldefense.proofpoint.com/v2/url?u=http-3A__eur-2Dlex.europa.eu_legal-2Dcontent_EN_TXT_HTML_-3Furi-3DCELEX-3A32014R0511-26from-3DEN&d=AwID-g&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=CLFZJ3fvGSmDp7xK1dNZfh6uGV_h-8NVlo3fXNoRNzI&m=2EPwe4xdJVV76n1tDCnsjB6uCx8wzMP0R-28g6lqZ24&s=7LurzSsZDQy-ONi2Kjca4TWzrFt97MHtCd_PBxb1kp4&e= 
>
> Ellen
> -- 
> Ellen Paul
>
> Ellen Paul
>
> Executive Director
>
> Ornithological Council 
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.nmnh.si.edu_BIRDNET&d=AwMDaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=CLFZJ3fvGSmDp7xK1dNZfh6uGV_h-8NVlo3fXNoRNzI&m=3oM8knvzjelrZwQJfOG0G0ggb15GLtssw7Npv88neMg&s=eUQMyB3ky8FmOQ5MOp3HSBdsmg3mKC1ATTpFj5JsNJ0&e=> 
>
> Providing Scientific Information about Birds
>
>
>
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-- 
Dirk Neumann

Tel: 089 / 8107-111
Fax: 089 / 8107-300
email: Dirk.Neumann(a)zsm.mwn.de

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Staatliche Naturwissenschaftliche Sammlungen Bayerns
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---------

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Tel: +49-89-8107-111
Fax: +49-89-8107-300
email: Dirk.Neumann(a)zsm.mwn.de

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