84 FR 33176 - Regulations and Procedures Under the Plant Variety Protection Act

Comments are invited on proposed revisions to the regulations, fees for services, and procedures established under the Plant Variety Protection Act. The proposed revisions are needed to conform with recent amendments to the Plant Variety Protection Act, which added authority for the Plant Variety Protection Office to issue certificates of protection for varieties of plants that are reproduced asexually. The proposed rule would add references to the term ``asexual reproduction'' to the regulations established under the Act. The proposed rule would also modernize the regulations by simplifying the fee schedule for PVPO services and updating the regulations relating to administrative procedures to reflect current business practices.

[Federal Register Volume 84, Number 134 (Friday, July 12, 2019)]
[Proposed Rules]
[Pages 33176-33182]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2019-14799]



[[Page 33176]]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 97

[Document Number AMS-ST-19-0004]
RIN 0581-AD86


Regulations and Procedures Under the Plant Variety Protection Act

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Comments are invited on proposed revisions to the regulations, 
fees for services, and procedures established under the Plant Variety 
Protection Act. The proposed revisions are needed to conform with 
recent amendments to the Plant Variety Protection Act, which added 
authority for the Plant Variety Protection Office to issue certificates 
of protection for varieties of plants that are reproduced asexually. 
The proposed rule would add references to the term ``asexual 
reproduction'' to the regulations established under the Act. The 
proposed rule would also modernize the regulations by simplifying the 
fee schedule for PVPO services and updating the regulations relating to 
administrative procedures to reflect current business practices.

DATES: Comments on the proposed rule must be received by September 10, 
2019.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. All comments must be submitted through 
the Federal e-rulemaking portal at http://www.regulations.gov and 
should reference the document number and the date and page number of 
this issue of the Federal Register. All comments submitted in response 
to this proposed rule will be included in the record and will be made 
available to the public. Please be advised that the identity of the 
individuals or entities submitting comments will be made public on the 
internet at the address provided above.

FOR FURTHER INFORMATION CONTACT: Jeffery Haynes, Deputy Commissioner, 
Plant Variety Protection Office, AMS Science and Technology Program, 
USDA; 1400 Independence Avenue SW, Room 4512-S, Stop 0274, Washington, 
DC 20250-0002; telephone: (202) 260-8983; email: 
[email protected].

SUPPLEMENTARY INFORMATION: Section 10108 of the Agriculture Improvement 
Act of 2018 (Pub. L. 115-334) (2018 Farm Bill) amended the Plant 
Variety Protection Act of 1970, as amended (7 U.S.C. 2321-2582) (Act), 
by adding a definition for the term ``asexually reproduced'' as it 
pertains to plant propagation and adding authority to offer 
intellectual property protection to breeders of new varieties of plants 
developed through asexual reproduction. This rule proposes 
corresponding changes to the plant variety protection regulations 
established under the Act. The Plant Variety Protection regulations at 
7 CFR part 97 (regulations) are administered by the Plant Variety 
Protection Office (PVPO), under the Agricultural Marketing Service's 
(AMS) Science and Technology Program.

Background Information

    The Act authorizes the PVPO to provide intellectual property 
protection to breeders of new plant varieties to facilitate the 
marketing of those new varieties. Currently, breeders can apply for and 
receive certificates that protect new varieties of seed and tuber 
propagated plants for 20 years, or 25 years for seed propagated vines 
and trees. A Certificate of Protection is awarded to an owner of a 
variety after examination by PVPO indicates that it is new, distinct 
from other varieties, genetically uniform, and stable through 
successive generations. PVPO-issued certificates are recognized 
worldwide and facilitate filing for plant variety protection in other 
countries. Certificate owners have the right to exclude others from 
marketing and selling protected varieties, manage the use of their 
varieties by other breeders, and enjoy legal protection of their work.
    Asexually reproduced varieties are those derived using vegetative 
material, other than seed, from a single parent including cuttings, 
grafting, tissue culture, and propagation by root division. These 
varieties are a significant and growing portion of the industry. 
Developers of asexually reproduced varieties desire intellectual 
property rights recognized internationally that can only be obtained 
through PVPO-issued certificates.

Proposed Provisions

    AMS proposes to revise the Plant Variety Protection regulations by 
adding references to asexual plant reproduction as appropriate to the 
current regulations that apply to the protection of seed and tubers. 
This proposed rule would revise Sec.  97.1 to extend the protection 
breeders can obtain from PVPO to plants propagated through asexual 
means. As with other plants covered by the Act, plant breeders would 
receive certificates that would protect asexually reproduced plant 
varieties for 20 years, or 25 years for trees and vines. Proposed 
revisions to the definition of the term sale for other than seed 
purposes in Sec.  97.2 would add ``propagating material'' to that term 
as used in the regulations. Proposed revisions to Sec.  97.6 would 
require that with an application for plant variety protection of an 
asexually propagated variety, a deposit of propagating material must be 
made to a public depository approved by the Commissioner and maintained 
for the duration of the certificate.
    A proposed revision to Sec.  97.7(d) would specify that original 
deposits of materials for tuber- or asexually reproduced plants must be 
made within three months of the notice of certificate issuance. Tuber-
reproduced plants are currently eligible for plant variety protection 
under the Act and regulations. Addition of the reference to tuber-
reproduced plants in Sec.  97.7(d) is proposed at this time to correct 
inadvertent omission of that reference in previous revisions to the 
regulations. Revised Sec.  97.7(d) would also address situations--as 
suggested by stakeholder feedback--in which it is technically 
infeasible to deposit or store propagating materials for certain 
asexually reproduced plants. In such situations, applicants would be 
allowed to request delay waivers, and would need to agree to provide a 
specimen, when one is needed, within three months of PVPO's request. 
PVPO would consider a certificate abandoned if the applicant failed to 
provide the requested specimen within the three-month timeframe.
    A proposed revision to Sec.  97.19(c) would replace the reference 
to ``name of the kind of seed,'' which appears on PVPO posts about 
pending applications, with the more generic reference to ``name of the 
crop,'' to accommodate all types of plant material that could be 
protected, including asexual reproduction material. The proposed rule 
would replace references to seed deposits in Sec.  97.104 with 
references to seed and propagating material deposits made in the 
application and certification processes. Currently, Sec.  97.141 of the 
regulations allows owners of plant varieties for which certificates 
have been issued to prohibit unauthorized multiplication of the seed of 
those varieties. Proposed revisions to Sec.  97.141 would extend that 
protection to prohibit the unauthorized multiplication of propagating 
material of those varieties. Similarly, proposed revisions to Sec.  
97.142 would allow owners of protected plant varieties to

[[Page 33177]]

prohibit unauthorized increases of all propagating material released 
for testing or increase. Currently, Sec.  97.142 only specifies such 
prohibition for seed and reproducible plant material released for 
testing or increase.
    The proposed rule would also modernize the regulations to reflect 
current industry and government practices. The current regulations were 
most recently revised in 2005 and contain obsolete or incomplete 
references to processes that have changed over the years. For instance, 
when color is a distinguishing characteristic of a plant variety, the 
color can be described according to any recognized color charts used in 
the industry for that purpose. Section 97.9 currently provides one 
example of a named color chart--the Nickerson Color Fan, which has long 
been in use. The proposed rule would expand the list of examples in 
Sec.  97.9 to identify two additional color charts that could be 
referenced, the Munsell Book of Color and the Royal Horticultural 
Society Colour Chart, as well as any other commonly recognized color 
charts.
    Many of the proposed changes pertain to PVPO's application process, 
including the timing of different steps in the process. PVPO expects 
the proposed changes to simplify the requirements for applicants and to 
expedite the issuance of variety protection certificates, which would 
be a benefit to their customers. Currently, applicants pay fees 
associated with certain steps of the application process as they go 
through the process, but a proposed revision to Sec.  97.6(c) would 
require the portions of the application fee for filing an application, 
for application examination by PVPO, and for certificate issuance to 
all be paid at the time of application. Corresponding revisions are 
proposed to Sec. Sec.  97.103(a) and 97.104(a) and (c). A proposed 
revision to Sec.  97.20(a) would specify that, subject to certain 
exceptions, filing and examination fees would not be refundable after 
an application is deemed by PVPO to be abandoned. A proposed revision 
to Sec.  97.23(c) would require payment of new filing and examination 
fees for reconsideration of an original application that had been 
withdrawn by the applicant. Currently, Sec.  97.101--Notice of 
Allowance specifies that an applicant must pay the certificate fee 
within one month of the notice of allowance. The proposed rule would 
revise Sec.  97.101 by requiring the applicant to verify the names of 
the plant variety and the owner and would give the applicant an 
opportunity to withdraw the application before the certificate is 
issued. After 30 days, a fee for delayed response would be charged to 
the applicant. Proposed revisions to Sec.  97.178 would remove 
references to searches and search fees and would specify that the 
examination fee could be refunded if an application is either 
voluntarily withdrawn or abandoned before the examination has begun. 
Section 97.178 would be further revised to provide that the certificate 
issuance fee would be refunded if an application is voluntarily 
withdrawn or abandoned after an examination, but before a certificate 
is issued.
    This proposed rule would reorganize and simplify the schedule of 
fees and charges for PVPO services in Sec.  97.175. The proposed 
revisions would consolidate and simplify the fee schedule to reflect 
the proposed revisions described above. Fee amounts for filing an 
application, examination, certificate issuance, application 
reconsideration, revival of abandoned applications, and filing appeals 
with the Commissioner or the Secretary would not change from the 
current fee schedule. However, fees for PVPO services like reproducing 
records, authentication, and correction or reissuance of a certificate 
would no longer be specified separately in the fee schedule in the 
regulations and would be charged at rates prescribed by the 
Commissioner, not to exceed $97 per employee hour. Currently those 
services are estimated to average $107 per employee hour. Office 
automation and other process improvements make the proposed decreases 
feasible. One such improvement is the ability to process fee payments 
through electronic payment methods. The proposed revision to Sec.  
97.177 would specify that payments could be made through the Plant 
Variety Protection system or through pay.gov, although payments by 
check or money order would still be allowed.
    The proposed rule would replace obsolete references in the 
regulations to the Official Journal of the Plant Variety Protection 
Office with references to the PVPO website, which is the current 
business portal used by PVPO to provide service to its customers. 
Another revision would add a reference to the PVPO website to the 
section. Such changes are proposed for Sec. Sec.  97.5(c), 97.7(c)(5), 
97.14(d), 97.19, 97.403(d), and 97.800. Such changes would also be made 
to what are currently paragraphs (b) and (d) of Sec.  97.104, but which 
would be redesignated paragraphs (a) and (c) through other revisions to 
the section. A further proposed revision to Sec.  97.5(c) would provide 
that applicants could request forms and information at a PVPO email 
address. A proposed revision for Sec.  97.12 would clarify that PVPO 
could use mail or email to notify applicants of the filing number and 
effective filing date of applications received by PVPO. Section 
97.23(c) would be revised to specify that refiling a voluntarily 
withdrawn original application must be accompanied by payment of a new 
filing and examination fee, while Sec.  97.23(d) would be removed 
altogether, as it contains obsolete references to applications pending 
on April 4, 1995. An additional revision to Sec.  97.104 (a) would 
remove reference to the return of seed samples deposited with 
applications since that is no longer the practice of PVPO and would 
provide that samples of seed and propagating material associated with 
abandoned applications and certificates would be retained or destroyed 
by the depository. Finally, the proposed rule would correct the 
reference in Sec.  97.500 to the U.S. Court of Appeals for the Federal 
Circuit, to whom applicants may appeal if they are dissatisfied with 
decisions of the Secretary related to plant variety protection issues.

Regulatory Flexibility Act

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601 et seq.), the Agricultural Marketing Service 
(AMS) has considered the economic impact of this action on small 
business entities. The affected industry falls under the North American 
Industry Classification System (NAICS) as code 54171--Research and 
development in the physical, engineering, and life sciences. This 
classification includes firms that are not plant breeders/plant 
research; however no detailed industry data was available for the 
analysis.
    Table 1 shows the most recent descriptive data for the industry, 
obtained from the County Business Pattern 2016 survey. This data set 
provides information on the number of establishments, number of 
employees and total annual payroll.

[[Page 33178]]



Table 1--Number of Establishments, Revenue and Payroll by Employee Count, NAICS Code 54171, 2016 County Business
                                                  Patterns \1\
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                                                           Number of        Number of paid      Annual payroll
                                                        establishments         employees           ($1,000)
----------------------------------------------------------------------------------------------------------------
All establishments..................................             17,292             695,810         $82,865,611
----------------------------------------------------------------------------------------------------------------

    The Small Business Administration (SBA) determines firm size for 
this industry by number of employees, but on a per firm basis, with 
small firms defined as having fewer than 1,000 employees and 1,000 or 
more employees per firm classified as large. Because firms may own more 
than one establishment, and the County Business Patterns data are 
compiled on an establishment rather than a firm basis, we must use the 
Economic Census data to determine the number of small and large firms 
for the industry.
---------------------------------------------------------------------------

    \1\ Geography Area Series: County Business Patterns by 
Employment Size Class, 2016 Business Patterns, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=BP_2016_00A3&prodType=table.
---------------------------------------------------------------------------

    Table 2 shows the most recent data available on the breakdown 
between small (<1,000 employees) and large (1,000 or more employees) 
firms in this industry, according to the SBA's guidance.\2\ The data 
are from the 2002 Economic Census, with monetary values converted to 
2016 dollars. More recent Economic Census data is not available at this 
level of detail for this industry.
---------------------------------------------------------------------------

    \2\ ``Table of Small Business Size Standards Matched to North 
American Industry Classification System Codes'', Small Business 
Administration, effective January 1, 2017, https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
    \3\ Professional, Scientific, and Technical Services: Subject 
Series--Establishment and Firm Size: Employment Size of Firms for 
the United States: 2002 Economic Census of the United States, 
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2002_US_54SSSZ5&prodType=table.

   Table 2--Number of Firms and Establishments, Revenue and Payroll by Employee Count, NAICS Code 54171, 2002
                                               Economic Census \3\
----------------------------------------------------------------------------------------------------------------
  Size of firm by number of       Number of        Number of      Number of paid     Revenue *    Annual payroll
          employees                 firms        establishments      employees       ($1,000)       * ($1,000)
----------------------------------------------------------------------------------------------------------------
Small--Firms with less than            10,200             11,753         273,601     $49,702,793     $24,780,487
 1,000 employees.............
Large--Firms with 1,000                    79              1,380         283,816      30,095,258      27,776,903
 employees or more...........
----------------------------------------------------------------------------------------------------------------
All firms....................          10,279             13,133         557,417      79,798,051      52,557,389
----------------------------------------------------------------------------------------------------------------
* Adjusted to 2016 values.

    The 2002 Economic Census reported that fewer than one percent of 
firms were considered large (79 of 10,279 firms, or 0.54 percent). The 
10,279 firms at that time owned a total of 13,133 establishments, with 
1,380 (nearly 11 percent) of these facilities owned by the 79 large 
firms.
    The tables show the extent of growth in the industry over time. The 
number of establishments has grown from 13,133 in 2002 to 17,292 in 
2016 (32 percent, or 2.3 percent per year). Total employment increased 
from 557,417 workers to 695,810 (25 percent, or 1.8 percent per year), 
and total annual payroll from $52,557,389 to $82,865,611 (58 percent, 
or 4 percent per year). These figures indicate that the industry has 
seen small to moderate growth, with a more highly paid work force over 
time. There do not appear significant changes in the structure of the 
industry between 2002 and 2016.
    In reviewing PVPO's list of customers, AMS found evidence that the 
size distribution of the firms affected by this rule was consistent 
with data reported in the 2002 Economic Census. AMS estimates that most 
PVPO customers would be considered small business entities under the 
criteria established by SBA (13 CFR 121.201), while fewer than 5% of 
the plant breeders and plant research and development firms using PVPO 
services would be considered large businesses with 1,000 or more 
employees.
    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 it is new, distinct from other 
varieties, genetically uniform, and stable through successive 
generations. PVP is a voluntary service.
    This proposed rule would amend the regulations to add application 
and certification procedures for asexually reproduced plants that 
mirror procedures currently in use for sexually reproduced and tuber 
propagated varieties. The proposed rule is intended to give breeders of 
new plant varieties additional tools for protecting new and emerging 
crops that were not previously available. This benefit would accrue to 
breeders of all sizes. As well, the proposed rule would simplify the 
fee schedule for services provided by the PVPO and would reduce fees 
for some services from $107.00 per hour to $97.00 per hour. The new fee 
schedule and rates would streamline the certification process and 
reduce the cost of maintaining a PVP Certificate of Protection and 
would apply to applicants of all sizes. Finally, proposed modernization 
of business processes under the regulations is intended to improve 
service delivery to PVPO customers of all sizes.
    There are currently more than 800 users of the plant variety 
protection service, of whom about 95 file applications in a given year. 
Some of these users are small business entities under the criteria 
established by SBA (13 CFR 121.201). With this action, the number of 
users is expected to increase by roughly 40 firms. The new applicants 
are expected to submit an additional 50 new applications on a yearly 
basis.
    PVP applicants are subject to an application fee of $5,150 per 
certificate. This proposed rule would allow firms that withdraw their 
applications to be reimbursed $768. Additional services are available 
from the PVPO at the

[[Page 33179]]

request of the applicant. Applicants using these services are subject 
to fees as listed in the rule schedule (7 CFR 97.175), with the 
inclusion of the reduction in fees for specified services. It is 
expected that new applicants will also participate in the Germ Plasm 
Deposit, at a cost of $3,000 per applicant.
    The burden on the new entrants is calculated by multiplying the 
cost of application, $5,150, by the number of expected new applicants 
(50), for an additional cost of $5,150 * 50 = $257,500. The cost to new 
applicants for the Germ Plasm Deposit is $3,000 * 50 = $150,000. In 
total this represents an additional cost to industry for this proposed 
rule of $407,500. The estimate is an upper boundary made without 
including the cost savings that result from the reduced hourly fee for 
additional services or the reimbursement for withdrawn applications, as 
these cost reductions are expected to be needed infrequently.
    Due to the limited cost of the proposed rule expanding a voluntary 
program, AMS has determined that this action would not have a 
significant economic impact on a substantial number of these small 
business entities.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), the information collection requirements for this program 
will be submitted as a new collection to OMB for approval and will be 
reported in the final rule.
    This proposed rule would revise the list of plant varieties 
eligible for PVPO certification and protection to include asexually 
reproduced plants. This proposed rule would also simplify the fee 
schedule for applicants and would lower the fees for some services. 
Finally, this rule would modernize the PVPO regulations to reflect 
current industry and government business operations. Reports and forms 
used in PVPO operations are periodically reviewed to reduce information 
requirements and duplication by industry and public sector agencies.

E-Gov

    AMS is committed to complying with the E-Government Act to promote 
the use of the internet and other information technologies, to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

Executive Orders 12866 and 13771

    This proposed rule does not meet the definition of a significant 
regulatory action contained in section 3(f) of Executive Order 12866 
and is not subject to review by the Office of Management and Budget 
(OMB). Additionally, because this proposed rule does not meet the 
definition of a significant regulatory action, it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling Costs' 
'' (February 2, 2017).

Executive Order 13175

    This proposed rule has been reviewed under Executive Order 13175--
Consultation and Coordination with Indian Tribal Governments. Executive 
Order 13175 requires Federal agencies to consult and coordinate with 
tribes on a government-to-government basis on: (1) Policies that have 
tribal implication, including regulation, legislative comments, or 
proposed legislation; and (2) other policy statements or actions that 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes.
    AMS has assessed the impact of this proposed rule on Indian tribes 
and determined that this rule would not have tribal implications that 
require consultation under Executive Order 13175. AMS hosts a quarterly 
teleconference with tribal leaders where matters of mutual interest 
regarding the marketing of agricultural products are discussed. 
Information about the proposed changes to the regulations will be 
shared during an upcoming quarterly call, and tribal leaders will be 
informed about the proposed revisions to the regulation and the 
opportunity to submit comments. AMS will work with the USDA Office of 
Tribal Relations to ensure meaningful consultation is provided as 
needed with regards to the PVPO regulations.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988--Civil 
Justice Reform. This proposed action is not intended to have 
retroactive effect, nor would it preempt any state or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with the proposed rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 63 of the Act, 
when an application for plant variety protection has been refused by 
the PVPO, the applicant may appeal to the Secretary. The Secretary must 
seek the advice of the Plant Variety Protection Board on all appeals 
before deciding an appeal. The Act provides that an applicant can 
appeal the Secretary's decision in the U.S. Court of Appeals for the 
Federal Circuit, or institute a civil action in the U.S. District 
Court, provided that such action is taken within 60 days of the 
Secretary's decision, or such further time as the Secretary allows.

List of Subjects in 7 CFR Part 97

    Plants, Seeds.

    For the reasons set forth in the preamble, USDA proposes to amend 7 
CFR part 97 as follows:

PART 97--PLANT VARIETY AND PROTECTION

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

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

0
 2. Revise Sec.  97.1 to read as follows:


Sec.  97.1   General.

    Certificates of protection are issued by the Plant Variety 
Protection office for new, distinct, uniform, and stable varieties of 
sexually reproduced, tuber propagated, or asexually reproduced plants. 
Each certificate of plant variety protection certifies that the breeder 
has the right, during the term of the protection, to prevent others 
from selling the variety, offering it for sale, reproducing it, 
importing or exporting it, conditioning it, stocking it, or using it in 
producing a hybrid or different variety from it, as provided by the 
Act.
0
 3. Amend Sec.  97.2 by removing the definition for Official Journal 
and revising the definition for Sale for other than seed purposes to 
read as follows:


Sec.  97.2   Meaning of words.

* * * * *
    Sale for other than seed or propagating purposes. The transfer of 
title to and possession of the seed or propagating material by the 
owner to a grower or other person, for reproduction for the owner, for 
testing, or for experimental use, and not for commercial sale of the 
seed, reproduced seed, propagating material, or reproduced propagating 
material for planting purposes.
0
 4. Amend Sec.  97.5 by revising paragraph (c) to read as follows:


Sec.  97.5   General requirements.

* * * * *
    (c) Application and exhibit forms shall be issued by the 
Commissioner.

[[Page 33180]]

(Copies of the forms may be obtained from the Plant Variety Protection 
Office by sending an email request to [email protected] or 
downloading forms from the PVPO website (https://www.ams.usda.gov/PVPO).
* * * * *
0
 5. Amend Sec.  97.6 by revising paragraphs (c) and (d)(3) and adding 
paragraph (d)(4) to read as follows:


Sec.  97.6   Application for certificate.

* * * * *
    (c) The fees for filing an application, examination, and 
certificate issuance shall be submitted with the application in 
accordance with Sec. Sec.  97.175 through 97.178.
    (d) * * *
    (3) With the application for a hybrid from self-incompatible 
parents, a declaration that a plot of vegetative material for each 
parent will be established in a public depository approved by the 
Commissioner and will be maintained for the duration of the 
certificate, or
    (4) With the application for an asexually propagated variety, a 
declaration that a deposit of propagating material in a public 
depository approved by the Commissioner will be made and maintained for 
the duration of the certificate.
0
6. Amend Sec.  97.7 by revising paragraphs (c)(5) and (d) to read as 
follows:


Sec.  97.7   Deposit of Voucher Specimen.

* * * * *
    (c) * * *
    (5) Once a depository is recognized to be suitable by the 
Commissioner or has defaulted or discontinued its performance under 
this section, notice thereof will be published on the Plant Variety 
Protection Office website (https://www.ams.usda.gov/PVPO).
    (d) Time of making an original deposit. An original deposit of 
materials for seed-reproduced plants shall be made within three months 
of the filing date of the application or prior to issuance of the 
certificate, whichever occurs first. An original deposit of materials 
for tuber-propagated plants or asexually reproduced plants shall be 
made within three months from the notice of certificate issuance date. 
A waiver from these time requirements may be granted for good cause, 
such as delays in obtaining a phytosanitary certificate for the 
importation of voucher sample materials. A delay waiver may also be 
granted to address the technical infeasibility of depositing 
propagating materials for certain asexually reproduced plants.
    (1) When the original deposit is made, the applicant must promptly 
submit a statement from a person in a position to corroborate the fact, 
stating that the voucher specimen material which is deposited is the 
variety specifically identified in the application as filed. Such 
statement must be filed in the application and must contain the 
identifying information listed in paragraph (b) of this section and:
    (i) The name and address of the depository;
    (ii) The date of deposit;
    (iii) The accession number given by the depository; and
    (iv) A statement that the deposit is capable of reproduction.
    (2) When a delay waiver is granted due to technical difficulties 
with depositing propagating materials for asexually reproduced plants, 
the applicant is required to make a declaration that a voucher specimen 
will be provided within three months of a request by the Plant Variety 
Protection Office. Failure to provide a specimen as requested shall 
result in the certificate being regarded as abandoned.
* * * * *
0
7. Amend Sec.  97.9 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  97.9   Drawings and photographs.

* * * * *
    (b) Drawings or photographs shall be in color when color is a 
distinguishing characteristic of the variety, and the color shall be 
described by use of Nickerson's color fan, the Munsell Book of Color, 
the Royal Horticultural Society Colour Chart, or other recognized color 
chart.
    (c) Drawings shall be sent flat, or may be sent in a suitable 
mailing tube, in accordance with instructions furnished by the 
Commissioner.
* * * * *
0
 8. Amend Sec.  97.12 by revising paragraph (a) to read as follows:


Sec.  97.12   Number and filing date of an application.

    (a) Applications shall be numbered and dated in sequence in the 
order received by the Office. Applicants will be informed in writing, 
by mail or email, as soon as practicable of the number and effective 
filing date of the application.
* * * * *
0
9. Amend Sec.  97.14 by revising paragraph (d) to read as follows:


Sec.  97.14   Joint applicants.

* * * * *
    (d) If a joint owner refuses to join in an application or cannot be 
found after diligent effort, the remaining owner may file an 
application on behalf of him or herself and the missing owner. Such 
application shall be accompanied by a written explanation and shall 
state the last known address of the missing owner. Notice of the filing 
of the application shall be forwarded by the Office to the missing 
owner at the last known address. If such notice is returned to the 
Office undelivered, or if the address of the missing owner is unknown, 
notice of the filing of the application shall be published once on the 
Plant Variety Protection Office website (https://www.ams.usda.gov/PVPO). Prior to the issuance of the certificate, a missing owner may 
join in an application by filing a written explanation. A certificate 
obtained by fewer than all of the joint owners under this paragraph 
conveys the same rights and privileges to said owners as though all of 
the original owners had joined in an application.
0
10. Amend Sec.  97.19 by revising the introductory text and paragraph 
(c) to read as follows:


Sec.  97.19   Publication of pending applications.

    Information relating to pending applications shall be published 
periodically as determined by the Commissioner to be necessary in the 
public interest. With respect to each application, the Plant Variety 
Protection Office website (https://www.ams.usda.gov/PVPO) shall show:
* * * * *
    (c) The name of the crop; and
* * * * *
0
11. Amend Sec.  97. 20 by revising paragraph (a) to read as follows:


Sec.  97.20   Abandonment for failure to respond within the time limit.

    (a) Except as otherwise provided in Sec.  97.104, if an applicant 
fails to advance actively his or her application within 30 days after 
the date when the last request for action was mailed to the applicant 
by the Office, or within such longer time as may be fixed by the 
Commissioner, the application shall be deemed abandoned. The filing and 
examination fees in such cases will not be refunded.
* * * * *
0
12. Amend Sec.  97.23 by revising paragraph (c) to read as follows, and 
by removing paragraph (d).


Sec.  97.23   Voluntary withdrawal and abandonment of an application.

* * * * *
    (c) An original application which has been voluntarily withdrawn 
shall be returned to the applicant and may be reconsidered only by 
refiling and

[[Page 33181]]

payment of new filing and examination fees.
0
13. Revise Sec.  97. 101 to read as follows:


Sec.  97.101   Notice of allowance.

    If, on examination, PVPO determines that the applicant is entitled 
to a certificate, a notice of allowance shall be sent to the applicant 
or his or her attorney or agent of record, if any, requesting 
verification of the variety name and of the name of the owner. The 
notice will also provide an opportunity for withdrawal of the 
application before certificate issuance. The applicant must respond 
within 30 days from the date of the notice of allowance. Thereafter, a 
fee for delayed response shall be charged as specified in Sec.  
97.175(f).
0
14. Amend Sec.  97.103 by revising paragraph (a) to read as follows:


Sec.  97.103   Issuance of a certificate.

    (a) After the notice of allowance has been issued and the applicant 
has clearly specified whether or not the variety shall be sold by 
variety name only as a class of certified seed, the certificate shall 
be promptly issued. Once an election is made and a certificate issued 
specifying that seed of the variety shall be sold by variety name only 
as a class of certified seed, no waiver of such rights shall be 
permitted by amendment of the certificate.
* * * * *
0
15. Amend Sec.  97.104 by removing paragraph (a), redesignating 
paragraphs (b) through (d) as paragraphs (a) through (c), and revising 
redesignated paragraphs (a) through (c) to read as follows:


Sec.  97.104   Application or certificate abandoned.

    (a) Upon request by the Office, the owner shall replenish the seed 
or propagating material of the variety and shall pay the handling fee 
for replenishment. Samples of seed or propagating material related to 
abandoned applications or certificates will be retained or destroyed by 
the depository. Failure to replenish seed or propagating material 
within 3 months from the date of request shall result in the 
certificate being regarded as abandoned. No sooner than 1 year after 
the date of such request, notices of abandoned certificates shall be 
published on the Plant Variety Protection Office website (https://www.ams.usda.gov/PVPO), indicating that the variety has become open for 
use by the public and, if previously specified to be sold by variety 
name as ``certified seed only,'' that such restriction no longer 
applies.
    (b) If the seed or propagating material is submitted within 9 
months of the final due date, it may be accepted by the Commissioner as 
though no abandonment had occurred. For good cause, the Commissioner 
may extend for a reasonable time the period for submitting seed or 
propagating material before declaring the certificate abandoned.
    (c) A certificate may be voluntarily abandoned by the applicant or 
his or her attorney or agent of record or the assignee of record by 
notifying the Commissioner in writing. Upon receipt of such notice, the 
Commissioner shall publish a notice on the Plant Variety Protection 
Office website (https://www.ams.usda.gov/PVPO) that the variety has 
become open for use by the public, and if previously specified to be 
sold by variety name as ``certified seed only,'' that such restriction 
no longer applies.
0
16. Revise Sec.  97.141 to read as follows:


Sec.  97.141   After issuance.

    Upon issuance of a certificate, the owner of the variety, or his or 
her designee, may label the variety, propagating material of the 
variety, or containers of the seed of the variety or plants produced 
from such seed or propagating material substantially as follows: 
``Unauthorized Propagation Prohibited--(Unauthorized Seed or 
Propagating Material Multiplication Prohibited)--U.S. Protected 
Variety.'' Where applicable, ``PVPA 1994'' or ``PVPA 1994--Unauthorized 
Sales for Reproductive Purposes Prohibited'' may be added to the 
notice.
0
17. Revise Sec.  97.142 to read as follows:


Sec.  97.142   For testing or increase.

    An owner who contemplates filing an application and releases for 
testing or increase seed of the variety or propagating material or 
reproducible plant material of the variety may label such plant 
material or containers of the seed or plant material substantially as 
follows: ``Unauthorized Propagation Prohibited--For Testing (or 
Increase) Only.''
0
18. Revise Sec.  97.175 to read as follows:


Sec.  97.175   Fees and charges.

    The following fees and charges apply to the services and actions 
specified below:
    (a) Application
    (1) Initial fee for filing, examination, and certificate issuance--
$5,150
    (2) Submission of new application data prior to issuance of 
certificate--$432
    (3) Granting extensions for responding to data requests--$89
    (4) Refunds pursuant to Sec.  97.178 may be issued for portions of 
the initial application fee as follows: Examination--$3,864, and 
certificate issuance--$768.
    (b) Reconsideration of application--$589
    (c) Revival of an abandoned application--$518
    (d) Appeals
    (1) Filing a petition for protest to Commissioner--$4,118
    (2) Appeal to Secretary (refundable if appeal overturns protest to 
Commissioner)--$4,942
    (e) 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 regulations.
    (f) Any other service not covered in this section, including, but 
not limited to, reproduction of records, authentication, correction, or 
reissuance of a certificate, recordation or revision of assignment, and 
late fees will be charged for at rates prescribed by the Commissioner, 
but in no event shall they exceed $97 per employee hour. Charges will 
also be made for materials, space, and administrative costs.
0
19. Revise Sec.  97. 177 to read as follows:


Sec.  97.177   Method of payment.

    Payments can be submitted through the electronic Plant Variety 
Protection system or pay.gov. Checks or money orders shall be made 
payable to the Treasurer of the United States. Remittances from foreign 
countries must be payable and immediately negotiable in the United 
States for the full amount of the prescribed fee. Money sent by mail to 
the Office shall be sent at the sender's risk.
0
20. Revise Sec.  97.178 to read as follows:


Sec.  97.178   Refunds.

    Money paid by mistake or excess payments shall be refunded, but a 
mere change of plans after the payment of money, as when a party 
decides to withdraw an application or to withdraw an appeal, shall not 
entitle a party to a refund. However, the examination fee shall be 
refunded if an application is voluntarily withdrawn or abandoned 
pursuant to Sec.  97.23(a) before the examination has begun. The 
certificate issuance fee shall be refunded if an application is 
voluntarily withdrawn or abandoned after an examination has been 
completed and before a certificate has been issued. Amounts of $1 or 
less shall not be refunded unless specifically demanded.

[[Page 33182]]

0
 21. Amend Sec.  97.403 by revising paragraph (d) to read as follows:


Sec.  97.403   Manner of service.

* * * * *
    (d) Whenever it shall be found by the Commissioner or Secretary 
that none of the above modes of serving the paper is practicable, 
service may be by notice, published once on the Plant Variety 
Protection Office website (https://www.ams.usda.gov/PVPO).
0
22. Revise Sec.  97.500 to read as follows:


Sec.  97.500   Appeal to U.S. Courts.

    Any applicant dissatisfied with the decision of the Secretary on 
appeal may appeal to the U.S. Courts of Appeals for the Federal 
Circuit, or institute a civil action in the U.S. District Court as set 
forth in the Act. In such cases, the appellant or plaintiff shall give 
notice to the Secretary, state the reasons for appeal or civil action, 
and obtain a certified copy of the record. The certified copy of the 
record shall be forwarded to the Court by the Plant Variety Protection 
Office on order of, and at the expense of the appellant or plaintiff.
0
23. Revise Sec.  97.800 to read as follows:


Sec.  97.800   Publication of public variety descriptions.

    Voluntary submissions of varietal descriptions of ``public 
varieties'' on forms obtainable from the Office will be accepted for 
publication on the Plant Variety Protection Office website (https://www.ams.usda.gov/PVPO). Such publication shall not constitute 
recognition that the variety is, in fact, distinct, uniform, and 
stable.

    Dated: July 8, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2019-14799 Filed 7-11-19; 8:45 am]
BILLING CODE 3410-02-P