H. R. 3555
IN THE HOUSE OF REPRESENTATIVES
December 2, 2011
Mr. Kucinich (for himself, Mr. Grijalva, and Mr. Stark) introduced the following bill; which was referred to the Committee on Agriculture, and in addition to the Committees on Energy and Commerce and the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To provide additional protections for farmers and ranchers that may be harmed economically by genetically engineered seeds, plants, or animals, to ensure fairness for farmers and ranchers in their dealings with biotech companies that sell genetically engineered seeds, plants, or animals, to assign liability for injury caused by genetically engineered organisms, and for other purposes.
Short title; table of contents
This Act may be cited as the
Genetically Engineered Technology Farmer Protection
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Title I—Genetically engineered crop and animal farmer protection
Sec. 101. Short title; findings.
Sec. 102. Information requirements regarding sale of genetically engineered seeds, plants, and animals.
Sec. 103. Contract limitations regarding sale of genetically engineered seeds, plants, and animals.
Sec. 104. Prevention of noncompetitive practices involving technology fees.
Sec. 105. Measures to avoid cross pollination involving genetically engineered seeds or plants.
Sec. 106. Resistance of agricultural pests to certain naturally occurring pesticides.
Sec. 107. Prohibition on labeling certain seeds as non-genetically engineered.
Sec. 108. Prohibition on certain non-fertile plant seeds.
Sec. 109. Prohibition on loan discrimination.
Sec. 110. Civil penalties for violation.
Sec. 111. Citizen suits.
Sec. 112. Definitions.
Title II—Genetically engineered organism liability
Sec. 201. Short title.
Sec. 202. Findings.
Sec. 203. Liability.
Genetically engineered crop and animal farmer protection
Short title; findings
This title may be cited as the
Engineered Crop and Animal Farmer Protection Act.
Congress finds the following:
Agribusiness and biotechnology companies have rapidly consolidated market power while the average farmer’s profits and viability have significantly declined.
Policies promoted by biotech corporations, such as the patenting of seeds, depriving farmers the right to save seeds, unreasonable seed contracts, and intrusion into everyday farm operations, have systematically revoked basic farmer rights, which have been enjoyed by farmers since the beginning of the practice of agriculture and which are essential for agricultural sustainability and the survival of family farms.
The introduction of genetically engineered crops has also created obstacles for farmers, including the loss of markets and increased liability concerns.
In Monsanto v. Geerston Farms, the United States Supreme Court determined that the threat of transgenic contamination is so harmful and onerous to organic and conventional farmers to give such farmers standing to challenge future biotech crop commercialization.
To mitigate the abuses upon farmers, a clear set of farmer’s rights must be established.
Information requirements regarding sale of genetically engineered seeds, plants, and animals
Full disclosure of risks of use
A biotech company that sells any genetically engineered animal, genetically engineered plant, or genetically engineered seed that the biotech company knows, or has reason to believe, will be used by a purchaser in the United States to produce an agricultural commodity shall provide written notice to the purchaser that fully and clearly discloses the possible legal and environmental risks that the use of the genetically engineered animal, genetically engineered plant, or genetically engineered seed may pose to such purchaser.
Effect of disclosure
The provision of written notice under subsection (a) regarding the risks of using a genetically engineered animal, genetically engineered plant, or genetically engineered seed does not relieve the biotech company from any liability that may result from the release of genetically engineered material into the environment. The receipt of the written notice by the purchaser shall not be construed to create any liability for the purchaser.
The Secretary shall issue such rules as may be necessary to implement and enforce this section.
Contract limitations regarding sale of genetically engineered seeds, plants, and animals
Certain contract terms and limitations unenforceable
If a contract for the sale of a genetically engineered animal, genetically engineered plant, or genetically engineered seed to a purchaser for use in agricultural production contains a provision described in subsection (b), the provision is hereby declared to be against public policy and therefore void and unenforceable as a matter of law.
Prohibited terms and limitations
The provisions referred to in subsection (a) are any of the following:
In the case of a sale of a genetically engineered plant or genetically engineered seed, a provision that prohibits the purchaser from retaining a portion of the harvested crop for future crop planting by the purchaser or that charges a fee to retain a portion of the harvested crop for future crop planting.
A provision that limits the ability of the purchaser to recover damages from the biotech company for a genetically engineered animal, genetically engineered plant, or genetically engineered seed that does not perform as advertised.
A provision that shifts any liability from the biotech company to the purchaser.
A provision that requires the purchaser to grant agents of the seller access to the property owned by the purchaser.
A provision that mandates arbitration of any disputes between the biotech company and the purchaser.
A provision that mandates any court of jurisdiction for the settlement of disputes.
A provision that mandates that the purchaser pay liquidated damages of more than a technology fee or similar fee, including any interest charged on such fees.
A provision that imposes any unfair condition upon the purchaser, as determined by the Secretary or a court.
Prevention of noncompetitive practices involving technology fees
Disclosure of technology fees
A biotech company that sells a genetically engineered animal, genetically engineered plant, or genetically engineered seed for use in agricultural production in the United States shall notify the Secretary, at such times and in such manner as the Secretary shall require, of—
the nature and amount of any technology, nonproduction, royalty, or similar fees collected by the biotech company in each country where such genetically engineered animal, plant, or seed is marketed; and
in the case of a genetically engineered plant or genetically engineered seed, the prices charged by the biotech company for herbicides associated with such genetically engineered plant or seed.
Prohibition on noncompetitive practices
A biotech company that sells a genetically engineered animal, genetically engineered plant, or genetically engineered seed for use in agricultural production in the United States may not charge higher technology, nonproduction, royalty, or similar fees for sales of the genetically engineered animal, plant, or seed in the United States than in other countries in which the genetically engineered animal, plant, or seed is sold.
Publication of data
The Secretary shall publish all data received under subsection (a)(1) every six months in the Federal Register and on a publicly available Internet site.
Measures to avoid cross pollination involving genetically engineered seeds or plants
Designation of predominately outcrossed pollinators
The Secretary shall determine which plants are predominately outcrossed pollinators and make such information available to persons who sell or purchase such plants or the seeds of such plants for use in agricultural production.
Minimizing the negative effects of predominately outcrossed pollinators
The Secretary shall issue rules to require effective mitigation strategies for any crop that is a predominately outcrossed pollinator.
Providing instructions To avoid cross pollination
The seller of any genetically engineered plant or genetically engineered seed that has been identified as a predominately outcrossed pollinator shall provide written instructions to each purchaser of the plants or seeds regarding how to plant and cultivate the plants or seeds so as to avoid cross contamination.
Resistance of agricultural pests to certain naturally occurring pesticides
Section 3(c) of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136a(c)) is amended by adding at the end the following paragraph:
Plant-incorporated Bt pesticides
Not later than 180 days after the date of the enactment of this paragraph, the Administrator, in consultation with the subpanel established under subparagraph (B), shall establish the best achievable resistance plan for plant-incorporated pesticides engineered to include toxins derived from the bacterium Bacillus thuringiensis (referred to in this paragraph as plant-incorporated Bt pesticide).
Before establishing the best achievable resistance plan under subparagraph (A), the Administrator shall, in accordance with procedures under section 25(d), establish a temporary subpanel to provide advice to the Administrator on scientific matters involved in establishing the resistance plan described in subparagraph (A).
Once the best achievable resistance plan is established under subparagraph (A), the Administrator shall revoke all Bt registrations that are not in compliance with the plan and may not issue new registrations unless the applicant has achieved the plan.
If pursuant to subparagraph (A) the Administrator determines that plant-incorporated Bt pesticides may have an unreasonable adverse effect on the environment by facilitating the development of Bt-toxin resistance in pests, or that the review has been inconclusive on whether the pesticide facilitates such resistance, the Administrator shall take such actions under this Act as may be necessary to significantly reduce the extent to which such pesticides are used.
Prohibition on labeling certain seeds as non-genetically engineered
A seed company or other person may not sell, or offer for sale, seeds for planting that are labeled as non-genetically engineered or otherwise represented as not containing genetically engineered material if the Secretary finds that any sample of the seeds contains genetically engineered material.
Prohibition on certain non-fertile plant seeds
Notwithstanding any other provision of law, effective 45 days after the date of the enactment of this title, a person may not manufacture, distribute, sell, plant, or otherwise use any seed that is genetically engineered to produce a plant, the seeds of which are not fertile or are rendered infertile by the application of an external chemical inducer.
Prohibition on loan discrimination
A financial institution may not discriminate against an agricultural producer that refuses to use genetically engineered plants or animals or add as condition to a loan the requirement that the producer use genetically engineered plants or animals.
Civil penalties for violation
Authority To assess penalties
The Secretary may assess, by written order, a civil penalty against a biotech company or other person that violates a provision of this title, including a regulation promulgated or order issued under this title. Each violation, and each day during which a violation continues, shall be a separate offense.
Amount and factors in assessing penalties
The maximum amount that may be assessed under this section for a violation may not exceed $100,000. In determining the amount of the civil penalty, the Secretary shall take into account—
the gravity of the violation;
the degree of culpability;
the size and type of the business committing the violation; and
any history of prior violations of this title or other laws administered by the Secretary by such business.
Notice and opportunity for hearing
The Secretary may not assess a civil penalty under this section against a biotech company or other person unless the company is given notice and opportunity for a hearing on the record before the Secretary in accordance with sections 554 and 556 of title 5, United States Code.
An order assessing a civil penalty against a person under subsection (a) may be reviewed only in accordance with this subsection. The order shall be final and conclusive unless the person—
not later than 30 days after the effective date of the order, files a petition for judicial review in the United States court of appeals for the circuit in which the person resides or has its principal place of business or in the United States Court of Appeals for the District of Columbia; and
simultaneously sends a copy of the petition by certified mail to the Secretary.
The Secretary shall promptly file in the court a certified copy of the record on which the violation was found and the civil penalty assessed.
Collection action for failure To pay assessment
If a person fails to pay a civil penalty after the order assessing the civil penalty has become final and unappealable, the Secretary shall refer the matter to the Attorney General, who shall bring a civil action to recover the amount of the civil penalty in United States district court. In the collection action, the validity and appropriateness of the order of the Secretary imposing the civil penalty shall not be subject to review.
Except as provided in subsection (c), any person may commence a civil action in an appropriate district court of the United States against—
a person who has introduced a genetically engineered organism into the environment without approval under this Act;
the Secretary, where there is alleged a failure of the Secretary to perform any act or duty under this title that is the responsibility of the Secretary and is not discretionary; or
the head of another Federal agency, if there is alleged a failure of the agency head to perform any act or duty under this title that is the responsibility of the agency head and is not discretionary.
In a civil action under this section, the district court involved may, as the case may be—
enforce the compliance of a person with the applicable provisions referred to in the complaint; or
order the Secretary or the agency head to perform the act or duty referred to in the complaint.
Notice to Secretary
A civil action may not be commenced under subsection (a)(1) before the date that is 60 days after date on which the plaintiff has provided to the Secretary notice of the violation involved.
Relation to actions of Secretary
A civil action may not be commenced under subsection (a)(1) against the Secretary if the Secretary has commenced and is diligently prosecuting a civil or criminal action in a district court of the United States to enforce compliance with the applicable provisions referred to in the complaint.
Right of Secretary To intervene
In any civil action under subsection (a)(1), the Secretary, if not a party, may intervene as a matter of right.
Award of costs; filing of bond
In a civil action under subsection (a), the district court involved may award costs of litigation (including reasonable attorney and expert witness fees) to any party whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.
This section does not restrict any right that a person (or class of persons) may have under any statute or common law to seek enforcement of the provisions of this title, or to seek any other relief (including relief against the Secretary or the head of another Federal agency).
In this Act:
Genetically engineered animal
The term genetically engineered animal means an animal that contains a genetically engineered material or was produced with a genetically engineered material. An animal shall be considered to contain a genetically engineered material or to have been produced with a genetically engineered material if the animal has been injected or otherwise treated with a genetically engineered material or is the offspring of an animal that has been so injected or treated.
Genetically engineered plant
The term genetically engineered plant means a plant that contains a genetically engineered material or was produced from a genetically engineered seed. A plant shall be considered to contain a genetically engineered material if the plant has been injected or otherwise treated with a genetically engineered material (except that the use of manure as a fertilizer for the plant may not be construed to mean that the plant is produced with a genetically engineered material).
Genetically engineered seed
The term genetically engineered seed means a seed that contains a genetically engineered material or was produced with a genetically engineered material. A seed shall be considered to contain a genetically engineered material or to have been produced with a genetically engineered material if the seed (or the plant from which the seed is derived) has been injected or otherwise treated with a genetically engineered material (except that the use of manure as a fertilizer for the plant may not be construed to mean that any resulting seeds are produced with a genetically engineered material).
Genetically engineered material
The term genetically engineered material means material that has been altered at the molecular or cellular level by means that are not possible under natural conditions or processes (including recombinant DNA and RNA techniques, cell fusion, microencapsulation, macroencapsulation, gene deletion and doubling, introducing a foreign gene, and changing the positions of genes), other than a means consisting exclusively of breeding, conjugation, fermentation, hybridization, in vitro fertilization, tissue culture, or mutagenesis.
The term biotech company means a person engaged in the business of creating genetically engineered material or obtaining the patent rights to that material for the purposes of commercial exploitation of such material. The term does not include the employees of such person.
The term Secretary means the Secretary of Agriculture.
Genetically engineered organism liability
This title may be cited
Genetically Engineered Organism Liability Act of
Congress finds the following:
The negative consequences of genetically engineered crops may impact farmers who grow these crops, neighbor farmers who do not grow these crops, and consumers.
Biotech companies are selling a technology that is being commercialized ahead of the new and unknown science of genetic engineering.
Farmers may suffer from crop failures, neighbor and nearby farmers may suffer from cross pollination, increased insect resistance, and unwanted volunteer genetically engineered plants, and consumers may suffer from health and environmental impacts.
Therefore, biotech companies should be found liable for the failures of genetically engineered crops when they arise.
Cause of action
A biotech company, including a person acting in accordance with Federal, State, or local law, is liable to any party injured by the release of a genetically engineered organism into the environment if that injury results from such genetic engineering. The prevailing plaintiff in an action under this subsection may recover reasonable attorney’s fees and other litigation expenses as a part of the costs.
The liability created by subsection (a) may not be waived or otherwise avoided by contract.
As used in this section, the term biotech company means a person—
engaged in the business of genetically engineering an organism; or
obtaining the patent rights to such an organism for the purposes of commercial exploitation of that organism.