North Dakota Emergency HG1442

Protecting Farmers' Rights 22feb01

HB 1442 would put limits on the rights of companies who hold patents on GMO crops to collect samples from farmers without permission. This bill was also heard on February 8th and is waiting committee action.

10702.0200 FIRST ENGROSSMENT

ENGROSSED HOUSE BILL NO. 1442

Fifty-seventh Legislative Assembly of North Dakota

Introduced by Representatives Lemieux, Kempenich, Lloyd, Pietsch

Senators G. Nelson, Wardner

A BILL for an Act relating to the sampling of genetically modified crops; and to declare an

emergency.

1      BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:

2      SECTION 1. Genetically modified seed - Patent infringement - Sampling -Mediation.

3      1. For purposes of this section, farmer means the person responsible for planting a

4      crop on, managing the crop, and harvesting the crop from land on which a patent

5      infringement is alleged to have occurred.

6      2. a. Before a person holding a patent on a genetically modified seed may enter

7      upon any land farmed by another for the purpose of obtaining crop samples to

8      determine whether patent infringement has occurred, the person holding the

9      patent:

10    (1) Shall notify the agriculture commissioner in writing of the person's belief

11    that a patent infringement has occurred and include facts justifying the

12    belief;

13    (2) Shall notify the farmer in writing of the person's belief that a patent

14    infringement has occurred and request written permission to enter upon

15    the farmer's land; and

16    (3) Must obtain the written permission of the farmer.

17    b. If the farmer withholds written permission, the person holding a patent may

18    petition the federal district court having jurisdiction over that portion of this

19    state in which the farmer's land is located for an order granting permission to

20    enter upon the farmer's land.

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1      3. Unless a shorter period of time is agreed to in writing or ordered by the federal

2      district court, samples may not be collected until a period of at least five days has

3      passed from the time the farmer gave written permission or from the date of the

4      court order. The farmer may accompany the person holding the patent at the time

5      any samples are taken.

6      4. An independent agent agreed to by both parties also must accompany the person

7      holding the patent at the time any sample is taken.

8      5. If the person holding a patent believes that the crop from which samples are to be

9      taken may be subject to intentional damage or destruction, the person may seek a

10    protection order from the federal district court. The protection order may not

11    interrupt or interfere with normal farming practices, including harvest and tillage.

12    6. The person holding the patent may take crop samples from only a standing crop or

13    representative standing plants in the field. Upon a showing of good cause, the

14    person holding the patent may collect seed samples from crops remaining in the

15    field after harvest.

16    7. The person holding the patent may obtain no more samples than those reasonably

17    necessary to make a determination regarding patent infringement. An equal

18    number of samples must remain in the custody of the independent agent agreed to

19    by both parties for future comparison and verification purposes. All samples taken

20    must be placed in containers, labeled as to the date, time, and location from which

21    they were taken, and the labels must be signed by the farmer, the person holding

22    the patent, and the independent agent agreed to by both parties. The person

23    holding the patent shall supply the containers for that person's samples. The

24    independent agent shall supply the containers for the agent's samples and the

25    farmer shall bear the cost of the agent's containers.

26    8. Within sixty days from the date the samples are taken, an independent laboratory

27    shall conduct all tests to determine whether patent infringement has occurred. The

28    person holding the patent shall notify the farmer of the test results, by certified mail

29    or by any other method of delivery for which a signature is required, within ten

30    days from the date the samples were analyzed. If the person holding the patent

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1      fails to comply with the dates set forth in this subsection, the crop samples may not

2      be used as evidence in any claim alleging patent infringement.

3      9. If a dispute between the farmer and the person holding the patent remains after

4      the samples have been analyzed, the farmer may require the person holding the

5     patent to participate in mediation of the matter. The mediation must be conducted

6      by a mediator jointly selected by the farmer and the person holding the patent. If

7      the farmer and the person holding the patent are unable to select a mediator, the

8      mediation must be conducted by the agricultural mediation service.

9      10. If the case is not settled after mediation, either party may file a claim with the state

10    seed arbitration board. The board may require that additional independent tests

11    be conducted.

12    11. If the case is not settled after arbitration, either party may file a claim for relief with

13    the federal district court having jurisdiction over that portion of this state in which

14    the farmer's land is located. This requirement, if the claim is based on a contract,

15    is deemed to be part of the contract, regardless of whether the contract is written

16    or oral.

17    SECTION 2. EMERGENCY. This Act is declared to be an emergency measure.

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