BREAKING NEWS - Consultation on UK Implementation of Nagoya Protocol launched by DEFRA

The IPKat and Merpel are delighted to learn that DEFRA (which is the lead ministry charged with the matter of the Nagoya Protocol) has today announced a CONSULTATION on the UK implementation of the Nagoya Protocol.

You can access the consultation here.

Of course, the consultation cannot affect the scope of the Regulation on Access and Benefit Sharing that is being enacted at EU level.  This Regulation is, incidentally, linked to on the main page of the consultation webpage, linked to above, and at this address also: http://tinyurl.com/ABS-EU-Text .  The wording appears to be that of the draft that was the result of the Trilogue,  reported on by the IPKat here and here. It seems that this text was voted on and approved by the European Parliament on Tuesday 11 March 2014, according to consultation document itself and the Parliament website.  Since the Trilogue document indicated that Council would adopt this wording of the Regulation if approved by Parliament, we can be reasonably confident that this will be the final text.  It is expected to finally pass into law in May 2014, according to the Commission website.

However, the EU has decided to leave several matters to the member states.  These include:

• The issue of traditional knowledge associated with genetic resources that is held by indigenous and local communities (Nagoya Protocol Articles 7 and 16)
• The appointment of the competent authority to administer the Nagoya regime in the member state
• Details of how declarations of due diligence are to be made 
• Enforcement and sanctions for failure to comply with due diligence obligations - civil sanctions and criminal offences

Therefore, UK legislation will be needed as well, and this is the reason for the Consultation just announced.  Or, as the Consultation document puts it:

The Nagoya Protocol is a mixed agreement, meaning it was signed both by the EU and by its Member States, and responsibility for implementing it is split between the two. The United Kingdom must implement those of the Protocol’s provisions that fall under Member State competence, while an EU Regulation that will implement the Protocol’s obligations that fall within EU competence has been agreed in principle in Brussels. 

To give a flavour, here are the questions that the Consultation asks:

1. Do you think this is an effective way to meet the UK’s remaining obligations under the Nagoya Protocol? Do you have any alternative proposals?
2. Are you content with the proposed due diligence process? Do you foresee any difficulties that you or other users may face in meeting their obligations?
3. Are you content with the proposed set of limited powers to be given to the NMO?
4. Do you think that the mix of criminal and civil penalties outlined here is a proportionate means for the UK to enforce the Nagoya Protocol?
5. Should there be a cap on Variable Monetary Penalties? If so, should the cap be set at £250,000? What other level would you consider appropriate?
6. Are you satisfied with the mix of civil sanctions set out above? If not, how could the enforcement mix be improved?
7. Do you agree with the proposed procedures for issuing notices of intent, Compliance Notices, Stop Notices and VMPs? If not, what would you change?
8. Are you satisfied with the proposed procedures for appeals? If not, in what way could they be improved?
9. Are there specific elements of the EU Regulation or Protocol on which you or your sector would seek particular training or guidance?
10. What costs and/or benefits do you estimate you or your organisation will incur from the Regulation? Can you provide numerical figures?
11. How many genetic resource samples (and TK) does your organisation typically access per year/ in the last year?
12. How many separate agreements do you typically enter into per year with countries supplying genetic resources?

The consultation document is a useful digest of the Nagoya protocol issues, and the IPKat commends it to anyone with an interest in Nagoya.  The consultation remains open until Monday 21 April 2014.  Katsandra reminds readers - respond now or forever hold your peace.