[Federal Register Volume 70, Number 7 (Tuesday, January 11, 2005)]
[Proposed Rules]
[Pages 1835-1837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-472]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 97

[Docket Number ST02-02]
RIN  0581-AC31


Plant Variety Protection Office, Supplemental Fees

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Agricultural Marketing Service (AMS) proposes supplemental 
fees for the Plant Variety Protection (PVP) Office covering a variety 
of administrative services that are not currently charged by the 
program. These include administrative service requests for: 
replenishment of seed low in germination or seed number; submission of 
new application data after notice of allowance, but prior to 
certificate issuance; recording any revision, withdrawal, or revocation 
of an assignment; and protest to the issuance of a certificate. The 
allowance and issuance fee will be increased also to recover the costs 
of enhancing the PVP program's electronic archiving capabilities. Also, 
technical amendments are proposed which would revise or remove obsolete 
language.

DATES: Comments must be received on or before February 10, 2005.

ADDRESSES: Interested persons are invited to submit comments concerning 
this proposed rule. Comments should be sent in triplicate to Dr. Paul 
M. Zankowski, Commissioner, PVP Office, Room 401, NAL Building, 10301 
Baltimore Avenue, Beltsville, MD 20705-2351, telephone (301) 504-5518, 
fax (301) 504-5291, and should refer to the docket title and number 
located in the heading of this document. Comments received will be 
available for public inspection at the same location, between the hours 
of 10 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Janice M. Strachan, USDA, AMS, Science 
and Technology (S&T), PVP Office, 10301 Baltimore Avenue, NAL Room 401, 
Beltsville, MD 20705-2351, telephone (301) 504-5518, and fax (301) 504-
5291.

SUPPLEMENTARY INFORMATION: 

I. Executive Order 12866

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866, and therefore, has not been 
reviewed by the Office of Management and Budget (OMB).

II. Regulatory Flexibility Act

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601 et seq.), the AMS has considered the economic 
impact of this action on small business entities. There are more than 
800 potential users of the Plant Variety Protection (PVP) Office's 
service, of whom about 100 may file applications in a given year. Some 
of these users are considered small business entities under the 
criteria established by the Small Business Administration (13 CFR 
121.201). The AMS has determined that this action would not have a 
significant economic impact on a substantial number of these small 
business entities.
    The PVP Office administers the PVP Act of 1970, as amended (7 
U.S.C. 2321 et seq.), and issues Certificates of Protection that 
provide intellectual property rights to developers of new varieties of 
plants. A Certificate of Protection is awarded to an owner of a variety 
after examination indicates that the variety is new, distinct from 
other varieties, genetically uniform, and stable through successive 
generations. The Act requires that reasonable fees be collected in 
order to maintain the program. This action will add new fees charged to 
users of plant variety protection for administrative services. AMS 
estimates that the proposed rule will yield an additional $96,000 of 
new revenue in fiscal year (FY) 2006. The costs to private and public 
business entities will be proportional to their use of the 
administrative services. The PVP program is a voluntary service, so any 
decision by developers to discontinue the use of plant variety 
protection will not hinder private and public entities from marketing 
their varieties in commercial markets.
    AMS regularly reviews its user-fee-financed programs to determine 
their fiscal condition. In a recent review of the PVP program, the cost 
analysis indicated that there are a number of administrative services 
for which there are no fees available to recover costs. AMS determined 
the new fees by analyzing the costs for providing the listed services, 
including salaries and materials.
    The PVP Advisory Board has been informed of customer services for 
which the PVP Office is not reimbursed, and consulted on new 
supplementary fees in November 2001 and again in March 2003. The Board 
recommended that new supplemental fees be put in place. This proposed 
rule will make changes in the regulations to implement the supplemental 
fees.
    Without the supplemental fees in FY 2006, the PVP Office revenues 
are projected at $1,496,000, operational expenses are estimated at 
$1,614,720, and trust fund balances would be down to $966,458. On the 
other hand, if supplemental fees are established, the trust fund 
balance would be $1,243,658 at the end of FY 2006, which would begin to 
replenish the program reserves.

III. Civil Justice Reform

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This action is not intended to have retroactive effect, 
nor will it preempt any State or local laws, regulations, or policies, 
unless they present an irreconcilable conflict with the proposed rule. 
There are no administrative procedures that must be exhausted prior to 
any judicial

[[Page 1836]]

challenge to the provisions of the proposed rule.

IV. Paperwork Reduction Act

    This proposed rule does not contain any information collection or 
recordkeeping requirements that are subject to the Office of Management 
and Budget approval under the Paperwork Reduction Act of 1995 (44 
U.S.C. Chapter 35).
    The current information collection and recordkeeping requirements 
in part 97 have been previously approved under OMB control No. 0581-
0055.

Background Information and Proposed Changes

    The PVP program is a voluntary, user-fee-funded service, conducted 
under the Authority of the PVP Act (7 U.S.C. 2321 et seq.) of 1970, as 
amended. The Act authorizes the Secretary of Agriculture to provide 
intellectual property rights that facilitate marketing of new varieties 
of seed reproduced or tuber propagated plants. The Act also requires 
that reasonable fees be collected from the users of the services to 
cover the costs of maintaining the program.
    This proposed rule would amend the current fee schedule to cover a 
variety of administrative services for which users are not being 
charged by the program. These include administrative service requests 
for replenishment of seed low in germination or seed number; submission 
of new application data after notice of allowance, but prior to 
certificate issuance; revocation of authorization or change of address 
on assignments, security interests, licenses, grants, or conveyances; 
recording of withdrawal from assignments, security interests, licenses, 
grants, or conveyances; and protest to the issuance of a certificate. 
In addition, the allowance and issuance fee will be increased by $250 
to recover the costs of improving the PVP program's electronic 
archiving capabilities.
    On January 10, 2003, AMS published a rule in the Federal Register 
(68 FR 1359) that increased Plant Variety Protection fees that became 
effective February 10, 2003. In that rule, the fees were revised to 
take into account that from 1995 through 2002, the PVP Office absorbed 
accumulated national and locality salary increases for Federal 
employees. The proposed fees in this rule would yield an estimated 
$96,000 of additional revenue.
    The PVP Advisory Board has been informed of customer services for 
which the PVP Office is not reimbursed, and consulted on new 
supplementary fees in November 2001 and again in March 2003. The Board 
recommended that new supplemental fees be put in place. This proposed 
rule makes changes in the regulations to implement these new 
supplemental fees.
    Section 97.6(d)(1) would be amended by adding a replenishment fee 
for restocking the voucher seed sample. Seeds need to be replenished 
when the germination rate falls below 85%. The germination rate is 
tested periodically and these tests use up the stored seed sample. The 
voucher seed sample is a supplement to the Exhibit C description of the 
variety and is kept for the life of the certificate. Failure to 
replenish the voucher seed sample results in cancellation of the 
certificate.
    This proposed rule would amend Sec.  97.2 by updating the 
definition of the term ``Plant Variety Protection Office'' by noting 
that the Office is part of the Agricultural Marketing Service's Science 
and Technology Programs. The definition of the term ``owner'' would 
also be clarified by specifying that the owner is the person who 
developed or discovered and developed a variety, or the breeder's 
successor, as the PVPA provides.
    The address of the PVPO is given in Sec.  97.5(c). This proposed 
rule would update the address of the office.
    Section 97.6(d) provides that a viable seed sample shall be 
submitted with the application. For tuber propagated varieties, the 
applicant must verify that a viable cell culture has been deposited in 
an approved public depository, and for hybrids from self-incompatible 
parents, verification that a plot of vegetative material for each 
parent has been established in an approved public depository.
    Because of the expense of depositing cell cultures and because cell 
cultures are not useful in the examination process, the PVPO has 
granted exceptions to applicants so that the cell culture need not be 
deposited until the examination has been completed. This proposed rule 
would regularize this practice by providing that applicants declare 
that the cell culture will be deposited. A similar change would be made 
for the establishment of plots of vegetative material for self-
incompatible parents of hybrids.
    There are instances where it is impractical or impossible for the 
applicant to submit a sample of viable seeds with the application. For 
example, requirements for phytosanitary certificates for the 
importation of seed could delay the submission of a sample until the 
variety would no longer be eligible for protection. Accordingly the 
proposed rule would allow a waiver of the requirement that the sample 
be submitted at the time of the application; this is not intended to 
operate so that the certificate could be obtained without submitting 
the seed sample.
    Section 97.158 prohibits, with limited exceptions, advertising by 
attorneys and other persons practicing before the PVPO. Although the 
prohibition of advertising by attorneys was once standard, this is no 
longer the case. Accordingly, the provisions would be removed.
    The provision for priority contests, Sec. Sec.  97.205 through 
97.222, are obsolete and should be removed, together with references to 
those provisions in other sections. When the same variety is 
independently developed by different parties, the right of priority for 
a certificate of protection is determined by filing date. Prior to the 
amendment of the PVPA in 1994, the right of priority was controlled by 
the date of determination of the variety. Because applications pending 
at the time of the amendment of the PVPA continued to be governed by 
the old provisions, it was necessary to leave the priority contest 
regulations in place for a transition period. There are no longer any 
pending applications to which the priority contest procedure could be 
applied. All other references to priority contests would also be 
removed.
    Section 97.175 would be revised by adding new supplemental fees, 
and incorporating language to the present fee schedule to recover the 
costs of administrative service requests for: Replenishment of seed low 
in germination or seed number; submission of new application data after 
notice of allowance, but prior to certificate issuance; revocation of 
authorization, change of address, or recording of withdrawal from 
assignments, security interests, licenses, grants, or conveyances; and 
protest to the issuance of a certificate.
    Finally, the authority citation for part 97 would be revised to 
remove a reference to an obsolete statutory provision.
    A 30-day comment period is provided to allow interested persons the 
opportunity to respond to the proposal, including any regulatory and 
informational impact of this action on organizations considered small 
businesses. Thirty days is deemed appropriate because present fees do 
not properly cover program costs and additional revenues need to be 
generated to effectively operate the program.

List of Subjects in 7 CFR Part 97

    Plants, seeds.


[[Page 1837]]


    For reasons set forth in the preamble, it is proposed that 7 CFR 
part 97 be amended as follows.

PART 97--PLANT VARIETY PROTECTION

    1. The authority citation for part 97 would be revised to read as 
follows:

    Authority: Plant Variety Protection Act, as amended, 7 U.S.C. 
2321 et seq.


Sec.  97.2  [Amended]

    2. Section 97.2 is amended by:
    (a) Revising the word ``Division'' to read ``Programs'' in the 
definition of the term Office or Plant Variety Protection Office.
    (b) Adding the words ``and developed'' after the word 
``discovered'' in the definition of term Owner.
    3. In Sec.  97.5, paragraph (c) is revised to read as follows:


Sec.  97.5  General Requirements.

* * * * *
    (c) Application and exhibit forms shall be issued by the 
Commissioner. (Copies of the forms may be obtained from the Plant 
Variety Protection Office, National Agricultural Library, Room 401, 
10301 Baltimore Avenue, Beltsville, MD 20705-2351).
* * * * *


Sec.  97.6  [Amended]

    4. Section 97.6 is amended by:
    (a) Adding the words '', unless a waiver has been granted for good 
cause' immediately following the word ``variety'' in paragraph (d)(1).
    (b) Removing the words ``verification that a viable cell culture 
has been deposited'' and adding the words ``a declaration that a viable 
cell culture will be deposited'' in their place in paragraph (d)(2).
    (c) Removing the words ``verification that a plot of vegetable 
material for each parent has been established'' and adding the words 
``a declaration that a plot of vegetative material for each parent will 
be established'' in their place in paragraph (d)(3).


Sec.  97.104  [Amended]

    5. In Sec.  97.104, paragraph (b) the words ``and shall pay the 
handling fee for replenishment'' are added following the words ``sample 
of the variety''.


Sec.  97.107  [Amended]

    6. Sec.  97.107, the words ``within 60 days from the date of 
denial, in accordance with Sec. Sec.  97.300--97.303'' are removed.


Sec.  97.108  [Amended]

    7. In Sec.  97.108, paragraph (b) the words ``to carry into effect 
a recommendation under Sec.  97.302(b)'' are removed and the words ``in 
accordance with the decision'' are added in their place.


Sec.  97.158  [Removed]

    8. Section 97.158 is removed.


Sec.  97.175  [Revised]

    9. Section 97.175 is revised to read as follows:
    (a) Filing the application and notifying the public of filing--
$432.00.
    (b) Search or examination--$3,220.00
    (c) Submission of new application data, after notice of allowance, 
prior to issuance of certificate--$432.00.
    (d) Allowance and issuance of certificate and notifying public of 
issuance--$682.00.
    (e) Revived an abandoned application--$432.00
    (f) Reproduction of records, drawings, certificates, exhibits, or 
printed material (copy per page of material)--$1.50.
    (g) Authentication (each page)--$1.50.
    (h) Correcting or re-issuance of a certificate--$432.00
    (i) Recording an assignment, any revision of an assignment, or 
withdrawal or revocation of an assignment (per certificate or 
application)--$38.00.
    (j) Copies of 8 x 10 photographs in color--$38.00.
    (k) Additional fee for reconsideration--$432.00.
    (l) Additional fee for late payment--$38.00.
    (m) Fee for handling replenishment seed sample (applicable only for 
certificates issued after [insert the effective date of the final 
rule])--$38.00.
    (n) Additional fee for late replenishment of seed--$38.00.
    (o) Filing a petition for protest proceeding--$4,118.00.
    (p) Appeal to Secretary (refundable if appeal overturns the 
Commissioner's decision)--$4,118.00.
    (q) Granting of extensions for responding to a request--$74.00.
    (r) Field inspection or other services requiring travel by a 
representative of the Plant Variety Protection Office, made at the 
request of the applicant, shall be reimbursable in full (including 
travel, per diem or subsistence, salary, and administrative costs) in 
accordance with Standardized Government Travel Regulation.
    (s) Any other service not covered in this section will be charged 
for at rates prescribed by the Commissioner, but in no event shall they 
exceed $89.00 per employee-hour. Charges will also be made for 
materials, space, and administrative costs.


Sec. Sec.  97.205-97.222  [Removed]

    10. Sections 97.205 through 97.222 are removed.

    Dated: January 5, 2005.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-472 Filed 1-10-05; 8:45 am]
BILLING CODE 3410-02-P