17188 Federal Register / Vol. 60, No. 64 / Tuesday, April 4, 1995 / Rules and Regulations

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 97

[SD–95–001]

RIN 0581–AB39

Plant Variety Protection Regulations;

Amendments To Conform to Change in

the Law and To Increase Certification

Fees

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule revises

the Plant Variety Protection Regulations

to conform to changes made in the Plant

Variety Protection Act (PVPA). The

amendments to the PVPA become

effective April 4, 1995. Fees are

increased to recover the cost of

administering the Act and to maintain

the program as a fully user funded

program.

DATES: Effective April 4, 1995;

comments received by May 4, 1995 will

be considered prior to issuance of a final

rule.

ADDRESSES: Comments should be sent to

Kenneth H. Evans, Commissioner, Plant

Variety Protection Office, Science

Division, Agricultural Marketing

Service, U. S. Department of

Agriculture, Room 500, National

Agricultural Building, Beltsville,

Maryland 20705–2351. Telephone (301)

504–5485. Comments will be available

for public inspection at this location

during regular business hours, Monday

through Friday.

FOR FURTHER INFORMATION CONTACT:

Kenneth H. Evans, Commissioner, Plant

Variety Protection Office,

Telephone:(301)504–5518, FAX

(301)504–5291

SUPPLEMENTARY INFORMATION:

I. Executive Order 12866; Executive

Order 12778

This interim final rule has been

reviewed under Executive Order 12866.

The 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.

This rule has also been reviewed

under Executive Order 12778, Civil

Justice Reform. This action is not

intended to have retroactive effect. This

rule will not preempt any State or local

laws, regulations, or policies, unless

they present an irreconcilable conflict

with this rule. There are no

administrative procedures which must

be exhausted prior to any judicial

challenge to the provisions of this rule.

II. Regulatory Flexibility Act

The Administrator, Agricultural

Marketing Service, has determined that

this action will not have a significant

economic impact on a substantial

number of small entities as defined by

the Regulatory Flexibility Act (5 U.S.C.

601–612). The fees provided for in this

document merely reflect a minimal

increase in the costs currently borne by

those entities which utilize Plant

Variety Protection services.

III. Paperwork Reduction Act

In accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501

et seq.) the information collection

requirements included in 7 CFR Part 97

have been approved previously by the

Office of Management and Budget and

have been assigned OMB control

number 0581–0055.

IV. Background Information

The Plant Variety Protection Act (7

U.S.C. 2321 et seq.) (PVPA) authorizes

the Secretary to issue Certificates of

Plant Variety Protection which afford

variety ownership rights similar to

patent rights. As a member of the

International Union for the Protection of

New Varieties of Plants (UPOV) the

United States participated in

negotiations which resulted in the

March 19, 1991 UPOV Convention. The

PVPA was amended on October 6, 1994

to conform to the new UPOV

Convention and the amendments will be

effective on April 4, 1995. This interim

final rule revises the regulations to

conform to the amendments of the

PVPA. The regulations must be revised

so that they are in place when the

amended Act becomes effective. It is

also necessary that the program be

maintained as a fully user-fee funded

program. Therefore, pursuant to 5 U.S.C.

553, it is found and determined upon

good cause that it is impractical,

unnecessary, and contrary to the public

interest to give preliminary notice prior

to putting this rule into effect and that

good cause exists for not postponing the

effective date of this rule until 30 days

after publication in the Federal

Register.

Section 97.1 (a general statement of

the scope of the regulations) is revised

in three respects. First, the phrase

‘‘novel varieties’’ is replaced by ‘‘new,

distinct, uniform, and stable varieties’’

because the term ‘‘novel variety’’ is no

longer used in the PVPA. Second, a

reference to tuber reproduced plants is

added to reflect the extension of the

PVPA to tuber reproduced as well as

sexually reproduced plant varieties.

Third, the description of the rights

afforded by a certificate is revised by

adding conditioning and stocking as

actions which require the authorization

of the owner, as provided in the PVPA.

In § 97.2 (a list of definitions), the

term ‘‘hybrid’’ is removed. The

definition is no longer necessary

because the PVPA now extends to

hybrid varieties.

Section 97.5(a)(2) is revised to specify

that the member states of UPOV include

those countries which are members of

an intergovernmental organization

which is a UPOV member. This

clarification is made because nationals

of such countries would in any event be

fully eligible for protection under

section 97.5(a)(3).

Section 97.6(d), which deals with the

requirement that the application must

be accompanied by a seed sample, is

revised by adding that, for a tuber

propagated variety, the application be

accompanied by ‘‘verification that a

viable cell culture will be deposited in

a public depository before the issuance

of the certificate and will be maintained

for the duration of the certificate.’’ This

reflects the extension of the PVPA to

tuber propagated varieties where the

reference to seeds would be

inapplicable. Additionally, seed

samples provide information on seed

characteristics and demonstrate the

uniformity of the deposit. No such

information is gained from a cell

culture.

Section 97.7 is removed. This section

relates to the statements of the applicant

in signing a completed application. It is

unnecessary because the applicant in

signing the application states what is

stated on the completed application.

Further, the provision mentions items

which are no longer applicable because

of the amendment of the PVPA.

Section 97.11(b), which relates to the

length of time an incomplete or

defective application will be held, is

revised to provide for holding for three

months rather than six months, to

reflect a change in the statute.

The heading of § 97.15 is revised by

removing the word ‘‘novel’’ so that it

would read ‘‘Assigned varieties and

certificates.’’ As mentioned above, the

amended PVPA no longer uses the term

‘‘novel variety.’’

Section 97.19 is revised by replacing

the word ‘‘novel’’ with ‘‘distinctive’’ for

the same reason. Similar changes would

be made in §§ 97.100(b), 97.104(b),

97.105, 97.106, 97.130, 97.140, 97.141,

97.201(e), and 97.800.

Section 97.20, relating to

abandonment for failure to respond to
Federal Register / Vol. 60, No. 64 / Tuesday, April 4, 1995 / Rules and Regulations 17189

requests for information, is revised by

changing the time period from 6 months

to 30 days to reflect the amendment of

the PVPA. This only changes the

automatic period of time provided;

extensions may still be granted. In

connection with this change, the

reference in § 97.20(c) to a ‘‘shortened’’

period of 30 days is removed.

The amendments to the PVPA provide

that certificates which have been

granted and applications which are

pending as of the effective date of the

amendments will continue to be

governed by the Act as it was prior to

the amendments. There is an exception

for applications which are withdrawn

and refilled under the new amendments

to the law. Section 97.23 (relating to the

withdrawal of applications) is revised

by adding a provision which simplifies

the withdrawal of a pending application

for the purpose of refiling under the

amended PVPA. All that is required is

written notice and payment of the

application fee. Completion of a new

application form would not be

necessary.

Sections 97.140 and 97.141 (which

relate to notice on the label that

protection has been applied for or

granted, respectively) are also revised to

clarify that the notice may, where

applicable, specify ‘‘PVPA–1994’’ so as

to give notice that the variety is subject

to the new infringement provisions.

Section 97.142 (which relates to

notice accompanying seed released for

testing or increase only) is revised so

that it would also apply to tuber

reproducing plants.

A footnote is added to the provisions

relating to priority contests (beginning

at § 97.205) stating that they apply only

to varieties protected under the PVPA as

it was prior to the 1994 amendments.

The amendments removed the date of

determination of a variety a deciding

factor in eligibility for protection. The

provisions are not removed, however,

because there could be a possibility that

there may be a priority contest involving

applications under the PVPA prior to

the 1994 amendments.

Similarly, §§ 97.303 and 97.500

(relating to appeals from the decisions

of the Secretary) are revised to remove

references to specific sections of the

PVPA. These references are unnecessary

and may be confusing because there is

a possibility of an appeal from the

decision of the Secretary which would

be governed by the PVPA as it was prior

to the 1994 amendments.

The fees set forth in § 97.175 are

increased. The application fee is

increased from $275 to $300, the search

fee from $2,050 to $2,150, and the

issuance fee from $275 to $300. The fees

for reviving an abandoned application,

correcting or reissuance of a certificate

are increased from $275 to $300. The

charge for granting an extension for

responding to a request is set at $50.

The hourly charge for any other service

not specified is increased from $40 to

$60. The fee for appeal to the Secretary

(refundable if appeal overturns the

Commissioner’s decision) is increased

from $2,600 to $2,750.

These fee increases are necessary to

maintain the program as a fully user

funded program.

The Plant Variety Protection Advisory

Board has been consulted on a fee

increase on September 23, 1992. The

fees were not increased at that time. The

Board was also consulted and advised

that the regulations should be revised to

conform to any amendments made in

the PVPA to conform to the new UPOV

Convention. This interim final rule

makes the minimum changes in the

regulations to implement the PVPA and

increase fees to maintain the program as

a fee funded program.

List of Subjects in 7 CFR Part 97

Plants, Seeds.

For reasons set forth in the preamble,

7 CFR part 97 is amended as follows.

PART 97—PLANT VARIETY AND

PROTECTION

1. The authority citation for part 97 is

revised to read as follows:

Authority: Secs. 6, 22, 23, 26, 31, 43, 56,

57, 91(c), Plant Variety Protection Act, as

amended; 7 U.S.C. 2321, 2326, 2352, 2353,

2356, 2371, 2402b, 2403, 2426, 2427, 2501(c);

Sec. 14, Plant Variety Protection Act

amendments of 1994; 7 U.S.C. 2401 note; 29

FR 16210, as amended, 37 FR 6327, 6505.

§ 97.1 [Amended]

2. Section 97.1 is amended by

removing the word ‘‘novel’’ and adding

in its place ‘‘new, distinct, uniform, and

stable’’; adding ‘‘or tuber propagated’’

after the word ‘‘reproduced’’ and adding

‘‘conditioning it, stocking it,’’ after the

words ‘‘exporting it,’’.

§ 97.2 [Amended]

3. Section 97.2 is amended by

removing the definition of ‘‘hybrid’’.

§ 97.5 [Amended]

4. Section 97.5(a)(2) is amended by

adding the words ‘‘(including states

which are members of an

intergovernmental organization which is

a UPOV member)’’ after the word

‘‘Plants’’.

§ 97.6 [Amended]

5. Section 97.6(d) is amended by

adding the words ‘‘or with the

application for a tuber propagated

variety, verification that a viable cell

culture will be deposited in a public

depository before the issuance of the

certificate and will be maintained for

the duration of the certificate’’ after the

word ‘‘variety’’.

§ 97.7 [Removed and Reserved]

6. Section 97.7 is removed and

reserved.

§ 97.11 [Amended]

7. Section 97.11 (b) is amended by

removing the number ‘‘6’’ and adding a

‘‘3’’ in its place.

§ 97.15 [Amended]

8. Section 97.15 heading is revised to

read as follows: Assigned varieties and

certificates.

§ 97.19 [Amended]

9. Section 97.19 is amended by

removing the word ‘‘novel’’ from the

undesignated paragraph at the end of

the section and adding the word

‘‘distinctive’’ in its place.

§ 97.20 [Amended]

10. Section 97.20(a) is amended by

removing the words ‘‘6 months’’ and

adding the words ‘‘30 days’’ in their

place; and paragraph (c) is amended by

removing the word ‘‘shortened’’.

§ 97.23 [Amended]

11. Section 97.23 is amended by

adding a new paragraph (d) as follows:

§ 97.23 Voluntary withdrawal and

abandonment of an application.

* * * * *

(d) Transitional provision. An

applicant whose application is pending

on April 4, 1995, may notify the Plant

Variety Protection Office in writing that

he or she wishes to withdraw the

application and refile it under the Plant

Variety Protection Act as amended in

1994. Payment of the current

application fee is required but no other

formalities are necessary.

§ 97.100 [Amended]

12. Section 97.100(b) is amended by

removing the word ‘‘novel’’ and adding

the words ‘‘new, distinct, uniform, and

stable’’ in its place.

§ 97.104 [Amended]

13. Section 97.104(b) is amended by

removing the word ‘‘novel’’.

§ 97.105 [Amended]

14. Section 97.105(a) is amended by

removing the word ‘‘novel’’ and adding

the words ‘‘new, distinct, uniform, and

stable’’ in its place and paragraph (b) is

amended by removing the words ‘‘for

want of novelty’’.
17190 Federal Register / Vol. 60, No. 64 / Tuesday, April 4, 1995 / Rules and Regulations

§ 97.106 [Amended]

15. Section 97.106(b) is amended by

removing the word ‘‘novelty’’ and

adding ‘‘the variety being new, distinct,

uniform, and stable’’ in its place; and (c)

is amended by removing the word

‘‘novelty’’ and adding ‘‘the variety is

new, distinct, uniform, and stable’’ in its

place; and removing the word ‘‘novel’’

and adding ‘‘new, distinct, uniform, and

stable’’ in its place.

§ 97.130 [Amended]

16. Section 97.130(c) through (d) are

amended by removing the word ‘‘novel’’

at each occurrence.

§ § 97.140, 97.141 [Amended]

17. Sections 97.140 and 97.141 are

amended by removing the word ‘‘novel’’

and adding a new sentence to the end

of each section reading ‘‘Where

applicable, ‘‘PVPA 1994’’ may be added

to the notice.’’.

§ 97.142 [Amended]

18. Section 97.142 is amended by

removing the words ‘‘other sexually’’

and ‘‘produced from seed’’ and adding

the word ‘‘material’’ before the word

‘‘substantially’’.

§ 97.175 [Revised]

19. Section 97.175 is revised to read

as follows:

§ 97.175 Fees and charges.

The following fees and charges apply

to the services and actions specified

below:

(a) Filing the application and notifying the public of filing ......................................................................................................................... $300

(b) Search or examination ................................................................................................................................................................................ 2,150

(c) Allowance and issuance of certificate and notifying public of issuance ................................................................................................ 300

(d) Revive an abandoned application .............................................................................................................................................................. 300

(e) Reproduction of records, drawings, certificates, exhibits, or printed material (copy per page of material) ......................................... 1

(f) Authentication (each page) ......................................................................................................................................................................... 1

(g) Correcting or reissuance of a certificate .................................................................................................................................................... 300

(h) Recording assignments (per certificate/application) ................................................................................................................................ 25

(i) Copies of 8 x 10 photographs in color ....................................................................................................................................................... 25

(j) Additional fee for reconsideration .............................................................................................................................................................. 300

(k) Additional fee for late payment ................................................................................................................................................................. 25

(l) Additional fee for late replenishment of seed ........................................................................................................................................... 25

(m) Appeal to Secretary (refundable if appeal overturns the Commissioner’s decision) ............................................................................ 2,750

(n) Granting of extension for responding to a request ................................................................................................................................... 50

(o) Field inspections 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, and salary) in accordance with Standardized Government Travel Regulations.

(p) Any other service not covered above will be charged for at rates prescribed by the Commissioner, but in no event shall they exceed $60 per employee-hour.

§ 97.201 [Amended]

20. Section 97.201(e) is amended by

removing the word ‘‘novel’’ in the

second sentence.

21. A footnote number 2 is added to

the undesignated center heading

‘‘PRIORITY CONTEST’’ preceding

section 97.205, as follows: ‘‘2All

provisions relating to priority contests

apply only to varieties protected under

the Act as it was in force prior to April

4, 1995.’’

§ 97.303 [Amended]

22. Section 97.303(b) is amended by

removing ‘‘sections 71, 72, or 73 of’’.

§ 97.500 [Amended]

23. Section 97.500 is amended by

removing ‘‘sections 71, 72, and 73 of’’.

§ 97.800 [Amended]

24. Section 97.800 is amended by

removing the word ‘‘novel’’ and adding

‘‘distinct, uniform, and stable’’ in its

place.

Dated: March 29, 1995.

Lon S. Hatamiya,

Administrator.

[FR Doc. 95–8203 Filed 4–3–95; 8:45 am]

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