Revised mock up of the Legislative, administrative or policy measures on access and benefit-sharing including the elements of the measure (matrix)

revised common format.

Dear all

All the best to all of you for 2016 and many thanks for the revised mock up for the legislative, administrative or policy measures.

General comment/question:

My understanding of Para. 43 (b) of the IAC report was, that the “scope issue” should be included under each measure, i.e. access, benefit-sharing, and compliance. Now the scope section only relates to access but neither to benefit-sharing nor to compliance. I think that this is important as a certain country’s access regulation might apply to all GR (PIC is needed for all GR) but benefit-sharing measures might only apply to some GR, for instance for using In-situ GR. This information could be very useful to a user. Similarly, a provider might want to find out, whether the compliance measures relate to all GR or just to some.

Or did we agree to address scope issues only in the context of access? If so, apologies for my bad memory or misunderstanding of the approach and just ignore this comment.


Specific comments:

• Para. 9. Does it make sense to have this as a separate question? Would it not provide more information if the questions was included under the elements of the measures, e.g. model clauses for access, model clauses for benefit-sharing, etc.?

• Access:
To me, the initial question “Does it cover access” seems to be redundant, as the subsequent questions “does it cover access to GR” and “does it cover access to TK associated with GR” already cover that.

• Benefit-sharing:
The question whether a measures provides for differentiated procedures for commercial and non-commercial purposes seems also to be relevant in the context of benefit-sharing. E.g. a country might decide to require non-monetary benefit-sharing for non-commercial research purposes (e.g. a requirement to collaborate with a national research institution) but monetary benefit-sharing based on MAT in other cases.

• Compliance:
The first question “does the measure cover compliance” seems again to be redundant.

As indicated in the report para 43 (a) it should be better indicated that these measures relate to Articles 15 to 18 of the NP. Therefore, the second question should read: “Does the measure cover compliance with domestic legislation or regulatory requirements of the other Party”. As an alternative, the questions could also directly address the specific Articles of the Nagoya Protocol. E.g. Does the measure cover compliance according to article 15?  Does the measure cover compliance according to article 16? Etc.

The question “does it cover issues related to monitoring the utilization of GR” is very general. As in the previous version of the format, it might be useful to indicate, whether the measure establishes “one or more checkpoint” and whether it establishes an IRCC.  Some users in Switzerland clearly indicated that they would like to know, in which countries they can get an IRCC, as this gives them a greater legal security.

• Scope:
See general comment/question above.

I would change the order: all types of GR, animals, plants, fungi, microorganisms, wild species, domesticated and/or cultivated species

I do not understand, why the boxes on “competent national authority/ies”, “transboundary cooperation”, awareness-raising”, “capacity” and “other", which existed in the earlier version of the format, have been removed. In particular, it seems important to have a field, where one can include any “other” issues that are relevant to know and that are not covered by the questions.

Best regards to all of you.
Marco

I have one additional comment to Marco's:
Q.7. If the selection is ‘regional/multilateral’ might it be helpful to have a message appear with the subsidiary questions to the effect that “Regional / multilateral measures should be entered only once onto the ABS-CH, and it is recommended that either the regional body or one of the involved Parties is given this responsibility on behalf of the other Parties involved”.

Best wishes

Chris

Dear colleagues,
Greetings to all and my best wishes to you for 2016. On the revised mock up for the legislative, administrative or policy measures, I have the following observations:
- I welcome the addition of distinction of measures to measures which cover access, benefit-sharing or compliance measures; I realise that at this stage we are only requested to provide feedback on the common format, but nonetheless I think it would be opportune to mention that the information whether particular measure covers access/ benefit-sharing or compliance measures could be signalled by using some simple design (like flags) (in the spirit of making the website more intuitive and user-friendly);
- I agree with the comment of Marco that scope issue may be also relevant to measures other than access; I do not have a firm recollection of what we have agreed in details during our meeting, but it would seem logical to have the requirement to provide information whether a particular measure applies to all genetic resource or just to selected ones also for benefit-sharing and compliance measures. This could potentially be achieved by adding a line on applicability of measures to all or selected GR to all three groups as they stand now (rather than multiplying box on Scope for benefit-sharing and compliance);
-  I note that there is nothing in the common format on retired measures – although we agreed to tackle the issue; arguably the common format may not be the best place for that; I would appreciate if you could comment on that;
- Some more specific comments:
* Compliance:
- I find the formulation "does it cover compliance with mutually agreed terms" going beyond the formulation of the Protocol (which refers to ensuring that the mutually agreed terms have been established); this may create false expectations; or do we want to go beyond the Protocol on purpose?
* Scope:
-  should this not explicitly state – scope of access measures?
- we ask in the line before whether the measures are applicable to all genetic resources; is there a need to repeat that in type of genetic resources? It seems to be a relic of the previous common format; 

- Some comments to comments provided by Marco:
* para 9 – from my recollection and notes this is what we agreed to add and in that place; although it may indeed be more appropriate to have it included under specific threads (thus – under access, benefit-sharing and compliance); this would have the additional advantage to inform the users and providers whether such clauses were developed for access or for compliance or for benefit-sharing (as they may concentrate only on one aspect only);
* I don't mind the spotted redundancies in the hope that they contribute to better understanding of those filling in the forms of what is requested from them (so you first fill in the information that your measure covers access as such and then you go to specify on access, i.e. whether it covers access to GR/ access to TKaGR etc.; similarly for compliance) However I don't think it is a big issue either way.
* In agreement that the question on commercial – non-commercial purpose may be relevant also for benefit-sharing measures;
* I fully support that the reference to compliance measures needs to make it clear that we are talking about compliance measures under Articles 15-17 of the Protocol; this should be corrected; I find the wording proposed by Marco (i.e. "Does the measure cover compliance with domestic legislation or regulatory requirements of the other Party") good as it is informative and tells immediately which measures are concerned; reference to Articles of the Protocol are also a possible solution;
* In agreement that under the question asking about monitoring utilization we could ask about checkpoints; I am however not at all convinced that reference to IRCC is appropriate here as it is the provider countries which will make the decision to turn the permits into IRCC (whereas compliance measures will be put in place in users' jurisdictions); so this seems to be more relevant to access measures – or have I missed something?;
* I am not sure whether the information about CNA needs to be provided under legislative measures; if I understand correctly – this information should be available on the ABS CH anyhow; is my understanding correct? It might be however useful to know which authorities are responsible for a given measures (so access/ benefit-sharing/ compliance); I realize however that we have not discussed that;
* on the other deleted points – maybe there could be one group of "others"/ "varia" where the questions currently included in the common format (and under the proposal deleted) could be still kept (i.e. transboundary/ awareness-raising/ capacity/ other – allowing for possibility to comment);
- further I find Chris suggestion useful - this will help to avoid multiple submissions from Parties affected by regional measures.

Best regards,
Alicja