[Federal Register: May 19, 2005 (Volume 70, Number 96)]
[Rules and Regulations]
[Page 28783-28786]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my05-2]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
Janice.Strachan@usda.gov.
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.
[[Page 28786]]
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