[Federal Register Volume 70, Number 96 (Thursday, May 19, 2005)]
[Rules and Regulations]
[Pages 28783-28786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9963]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 97

[Docket Number ST-02-02]
RIN 0581-AC31


Plant Variety Protection Office, Supplemental Fees

AGENCY: Agricultural Marketing Service, USDA

ACTION: Final rule.

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SUMMARY: The Agricultural Marketing Service (AMS) is establishing 
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 is increased also to 
recover the costs of enhancing the PVP program's electronic archiving 
capabilities. Also, technical amendments are made which revise or 
remove obsolete language.

DATES: Effective June 20, 2005.

FOR FURTHER INFORMATION CONTACT: Janice M. Strachan, USDA, AMS, Science 
and Technology (S&T), PVP

[[Page 28784]]

Office, NAL Building, Room 401, 10301 Baltimore Avenue, Beltsville, MD 
20705-2351, telephone 301-504-5518, fax 301-504-5291, and e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Order 12866

    This rule has been determined to be not significant for the 
purposes of Executive Order 12866, and therefore, was not 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 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 will 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 establishes new fees charged 
to users of plant variety protection for administrative services. AMS 
estimates that the 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 established to recover costs. AMS 
determined the new fees by analyzing the costs for providing the listed 
services, including salaries and materials. Comments concerning the 
proposed rule are discussed later in this document.
    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 rule makes 
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 was 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 rule. There are 
no administrative procedures that must be exhausted prior to any 
judicial challenge to the provisions of the rule.

IV. Paperwork Reduction Act

    This 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 were previously approved under OMB control No. 0581-0055.

Background Information

    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 rule amends 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 is 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 PVP fees and 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 fees in this 
rule will 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 rule makes 
changes in the regulations to implement these new supplemental fees.
    This rule amends 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'' also is clarified by 
specifying that the owner is the person who developed or discovered and 
developed a variety, or the breeder's successor, as the PVP Act 
provides.
    The address of the PVP Office is given in Sec.  97.5(c). This rule 
updates the address of the Office.
    Section 97.6(d)(1) is 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.
    Section Sec.  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

[[Page 28785]]

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 PVP Office has 
granted exceptions to applicants so that the cell culture need not be 
deposited until the examination has been completed. This rule 
regularizes this practice by providing that applicants declare that the 
cell culture will be deposited. A similar change is 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 
rule allows a waiver of the requirement that the sample be submitted at 
the time of the application; but 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 are removed.
    The provision for priority contests, Sec. Sec.  97.205 through 
97.222, are obsolete and are 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 amendment of the 
PVP Act 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 PVP Act 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 also are removed.
    Section 97.175 is 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 is revised to remove a 
reference to an obsolete statutory provision.

Summary of Public Comment

    A notice of the proposed rule was published in the Federal Register 
(70 FR 1835) on January 11, 2005. A 30-day comment period was 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. The comment period expired 
on February 10, 2005, and four comments were received on the proposed 
rule.
    Three comments were received which expressed concern about the 
impact of the supplemental fees on small businesses. Only one new fee 
will be routinely charged. That is the additional fee to recover the 
costs of improving electronic archiving capabilities, which service is 
frequently requested by users. This $250 fee will be added to the 
allowance and issuance fee since only issued certificates are open to 
public access. All other fees are paid only if the user requests that 
the service be performed. It is expected that these fees will be 
assessed very infrequently based on past requests for these types of 
services. When these fees were set, the salary costs and time needed to 
perform the services were considered. In accordance with the PVP Act, 
new supplemental fees are reasonable and will allow the PVP program to 
recover the actual costs of performing the requested services. The 
costs to small businesses should be proportional to their use of the 
services. It is necessary that the program recover the costs of 
services. Accordingly, no changes are made based on these comments.
    Finally, one comment was received from an individual who had 
concerns about Invasive Species, a program that is not administered by 
the PVP Office.

List of Subjects in 7 CFR Part 97

    Plants, Seeds.

0
For reasons set forth in the preamble, 7 CFR part 97 is amended as 
follows.

PART 97--PLANT VARIETY PROTECTION

0
1. The authority citation for part 97 is revised to read as follows:

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


Sec.  97.2  [Amended]

0
2. Section 97.2 is amended by:
0
a. Revising the word ``Division'' to read ``Programs'' in the 
definition of the term Office or Plant Variety Protection Office.
0
b. Adding the words ``and developed'' after the word ``discovered'' in 
the definition of term Owner.

0
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]

0
4. Section 97.6 is amended by:
0
a. Adding the words ``, unless a waiver has been granted for good 
cause'' immediately following the word ``variety'' in paragraph (d)(1).
0
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).
0
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]

0
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]

0
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]

0
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]

0
8. Section 97.158 is removed.

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0
9. Section 97.175 is revised to read as follows:


Sec.  97.175  Fees and charges.

    (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) Revive 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 June 20, 2005)--$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 inspections 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 also will be made for 
materials, space, and administrative costs.


Sec. Sec.  97.205-97.222  [Removed]

0
10. Sections 97.205 through 97.222 are removed.

    Dated: May 13, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-9963 Filed 5-18-05; 8:45 am]
BILLING CODE 3410-02-P