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the open market at a negotiated price which is lower than the lowest rejected bid of a responsible bidder, without further observance of the provisions requiring bids or notice. The commission shall adopt rules and regulations to provide for purchasing from the lowest responsible bidder when sealed bids, notice, and publication are not rec^uired by this section. The commission may suspend and waive the provisions of this section requiring competitive bids whenever: " 1. The purchase is to be made from or the contract to be made with the Federal or any state government or agency or political subdivision thereof or pursuant to any open and bulk purchase contract of any of them; "2. The public exigency requires the immediate delivery of the articles or performance of the service; "3. Only one source of supply is available; "4. The equipment to be purchased is of a technical nature and the procurement thereof without advertising is necessary in order to assure standardization of equipment and interchangeability of parts in the public interest; or "5. Services are to be provided of a specialized or professional nature. "15.10—INSURANCE. The commission may self-insure or purchase insurance and pay the premium therefor against loss or damage to any of its properties; against liability for injury to persons or property; and against loss of revenue from any cause whatsoever. Such insurance coverage shall be in such form and amount as the commission may determine, subject to the requirements of any agreement arising out of the issuance of bonds by the commission. "15.11—ANNUAL INDEPENDENT AUDIT.

" (a) As soon as practical after the closing of the fiscal year an audit shall be made of the financial accounts of the commission. The audit shall be made by qualified certified public accountants selected by the commission, who have no personal interest direct or indirect in the financial affairs of the commission or any of its officers or employees. The report of audit shall be prepared in accordance with accepted accounting practices and shall be filed with the chairman and such other officers as the commission may direct. Copies of the report shall be distributed to each commissioner and shall be made available for public distribution. " (b) Each signatory party by its duly authorized officers shall be entitled to examine and audit at any time all of the books, documents, records, files, and accounts and all other papers, things, or property of the commission. The representatives of the signatory parties shall have acoess to all books, documents, records, accounts, reports, files, and all other papers, things, or property belonging to or in use by the commission and necessary to facilitate the audit and they shall be afforded full facilities for verifying transactions with the balances or securities held by depositaries, fiscal agents, and custodians. "(c) The financial transactions of the commission shall be subject to audit by the General Accounting Office in accordance with the principles and procedures applicable to commercial corporate transactions and under such rules and regulations as may be prescribed by the Comptroller General of the United States. The audit shall be conducted at the place or places where the accounts of the commission are kept. " (d) Any officer or employee who shall refuse to give all required assistance and information to the accountants selected by the commission or to the authorized officers of any signatory party or who shall

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refuse to^ submit to them for examination such books, documents, records, files, accounts, papers, tilings, or property as may be requested shall forfeit his office. "15.12—KEPORTS. The commission shall make and i^ublish an annual report to the legislative bodies of the signatory parties and to the public reporting on its programs, operations, and finances. I t may also prepare, publish, and distribute such other public reports and informational material as it may deem necessary or desirable. ''15.18—GRANTS, LOANS, OR PAYMENTS BY STATES OR POLITICAL SUBDIVISIONS.

" (a) Any or all of the signatory parties or any political subdivisions thereof may: " 1. Appropriate to the commission such funds as may be necessary to pay preliminary expenses such as the expenses incurred in the making of borings, and other studies of subsurface conditions, in the preparation of contracts for the sale of water and in the preparation of detailed plans and estimates required for the financing of a project; "2. Advance to the commission, either as grants or loans, such funds as may be necessary or convenient to finance the operation and management of or construction by the commission of any facility or project; "3. Make payments to the commission for benefits received or to be received from the operation of any of the projects or facilities of the commission. " (b) Any funds which may be loaned to the commission either by a signatory party or a political subdivision thereof shall be repaid by the commission through the issuance of bonds or out of other income of the commission, such repayment to be made within such period and upon such terms as may be agreed upon between the commission and the signatory party or political subdivision making the loan. "15.14—CONDEMNATION PROCEEDINGS.

" (a) The commission shall have the power to acquire by condemnation the fee or any lesser interest in lands, lands lying under water, development rights in land, riparian rights, water rights, waters and other real or personal property within the basin for any project or facility authorized pursuant to this compact. This grant of power of eminent domain includes but is not limited to the power to condemn for the purposes of this compact any property already devoted to a public use, by whomsoever owned or held, other than property of a signatory party. Any condemnation of any property or franchises owned or used by a municipal or privately owned public utility, unless the affected public utility facility is to be relocated or replaced, shall be subject to the authority of such state board, commission, or other body as may have regulatory jurisdiction over such public utility. " (b) The power of condemnation referred to in subsection (a) shall be exercised in accordance with the provisions of the state condemnation law in force in the signatory state in which the property is located. If there is no applicable state condemnation law, the power of condemnation shall be exercised in accordance with the provisions of Federal condemnation law. "(c) Any award or compensation for the taking of property pursuant to this article shall be paid by the commission, and none of the signatory parties nor any other agency, instrumentality or political subdivision thereof shall be liable for such award or compensation.

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PUBLIC LAW 91-575-DEC. 24, 1970 "15.15—CONVEYANCE FACILITIES.

OF

LANDS

AND

RELOCATION

[84 STAT. OF

PUBLIC

" (a) The respective officers, agencies, departments, commissions, or bodies having jurisdiction and control over real and personal property owned by the signatory parties are authorized and empowered to transfer and convey in accordance with the laws of the respective parties to the commission any such property as may be necessary or convenient to the effectuation of the authorized purposes of the commission. " (b) Each political subdivision of each of the signatory parties, notwithstanding any contrary provisions of law, is authorized and empowered to grant and convey to the commission, upon the commission's request, any real property or any interest therein owned by such political subdivision including lands lying under water and lands already devoted to public use which may be necessary or convenient to the effectuation of the authorized purposes of the commission. "(c) Any highway, public utility, or other public facility which will be dislocated by reason of a project deemed necessary by the commission to effectuate the authorized purposes of this compact shall be relocated and the cost thereof shall be paid in accordance with the law of the state in which the facility is located; provided that the cost of such relocation payable by the commission shall not in any event exceed the expenditure required to serve the public convenience and necessity. "15.16—RIGHTS OF W A Y. Permission is hereby granted to the commission to locate, construct, and maintain any aqueducts, lines, pipes, conduits, and auxiliary facilities authorized to be ac<juired, constructed, owned, operated, or maintained by the commission in, over, under, or across any streets and highways now or hereafter owned, opened, or dedicated to or for public use, subject to such reasonable conditions as the highway department of the signatory party may require. "15.17—PENALTY. Any person, association, or corporation who violates or attempts or conspires to violate any provisions of this compact or any rule, regulation, or order of the commission duly made, promulgated, or issued pursuant to the compact in addition to any other remedy, penalty, or consequence provided by law shall be punishable as may be provided by statute of any of the signatory parties within which the violation is committed; provided that in the absence of such provision any such person, association, or corporation shall be liable to a penalty of not less than $50 nor more than $1,000 for each such violation to be fixed by the court which the commission may recover in its own name in any court of competent jurisdiction, and m a summary proceeding where available under the practice and procedure of such court. For the purposes of this section in the event of a continuing offense each day of such violation, attempt, or conspiracy shall constitute a separate offense. "15.18—TORT LIABILITY. The commission shall be responsible for claims arising out of the negligent acts or omissions of its officers, agents, and employees only to the extent and subject to the procedures prescribed by law generally with respect to officers, agents, and employees of the government of the United States. "15.19—EFFECT ON RIPARIAN RIGHTS. Nothing contained in this compact shall be construed as affecting or intending to affect or in any way to interfere with the law of the respective signatory parties relating to riparian rights. "15.20—AMENDMENTS AND SUPPLEMENTS. Amendments and supplements to this compact to implement the purposes thereof may be adopted by legislative action of any of the signatory parties concurred in by all of the others.

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The provisions of this compact and of agreements thereunder shall be severable and if any phrase, clause, sentence, or provision of the Susquehanna River Basin Compact or such agreement is declared to be unconstitutional or the applicability thereof to any signatory party, agency, or person is held invalid, the constitutionality of the remainder of such compact or such agreement and the applicability thereof to any other signatory party, agency, person, or circumstance shall not be affected thereby. I t is the legislative intent that the provisions of such compact, be reasonably and liberally construed. "15.22—EFFECTIVE D A T E; EXECUTION. This compact shall become binding and effective thirty days after the enactment of concurring legislation by the Federal government, the states of Maryland and Xew York, and the Commonwealth of Pennsylvania. The compact shall be signed and sealed in five identical original copies by the respective chief executive of the signatory parties. One such copy shall be filed with the Secretary of State of each of the signatory parties or in accordance with the laws of the state in which the filing is made, and one copy shall be filed and retained in the archives of the commission upon its organization." "15.21—CONSTRUCTION AND SEVEKABILTTY.

RESERVATIONS

SEC. 2. In the exercise of the powers reserved to the Congress, pursuant to section 1.4 of the compact, the consent to and participation ^"'e» P« ^^iz. in the compact by the United States is subject to the following conditions and reservations: (a) Notwithstanding any provision of the Susquehanna Eiver Project plans. Basin compact the Susquehanna River Basin Commission shall not l^eTs. ^ ° ^ "" undertake any project (as defined in such compact), other than a project for which State supplied funds only will be used, beyond the planning stage until— (1) such commission has submitted to the Congress such complete plans and estimates for such project as may be necessary to make an engineering evaluation of such project including— (A) where the project will serve more than one purpose, an allocation of costs among the purposes served and an estimate of the ratio of benefits to costs for each such purpose. (B) an apportionment of costs among the beneficiaries of the project, including the portion of the costs to be borne by the Federal Government and by State and local governments, and (C) a proposal for financing the project, including the terms of any proposed bonds or other evidences of indebtedness to be used for such purpose, and (2) such project has been authorized by Act of Congress: Provided, That when a project has been authorized by Congress, such additional or changed uses of storage therein as the commission may desire shall require project reauthorization, with reallocation of project costs to all project purposes served. (b) No provision of section 3.9 of the compact shall be deemed to drawal or diver^ ^^'^ *''^' authorize the commission to impose any charge for water withdrawals 510^ c h a r g e s, on charged, ohlbition. or diversions from the basin if such withdrawals or diversions could prohibition 1516. Ante, p. lawfully have been made without charge on the effective date of the compact or to impose any charges with respect to commercial navigation within the basin, jurisdiction over which is reserved to the Federal Government: Provided, That this paragraph shall be applicable to the extent not inconsistent with section 1.4 of this compact.

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(c) Nothing contained in the compact shall be deemed to restrict the Executive powers of the President in the event of a national emergency. (d) Nothing contained in the compact shall be construed as impairing or in any manner affecting the applicability to all Federal funds budgeted and appropriated for use by the commission of such authority over budgetary and appropriation matters as the President and Congress may have with respect to agencies in the executive branch of the Federal Government. Bonds, taxa(e) Except to the same extent that State bonds are or may continue tion. to be free or exempt from Federal taxation under the internal revenue laws of the United States, nothing contained in the compact shall be construed as freeing or exempting from internal revenue taxation in any manner whatsoever any bonds issued by the commission, their transfer, or the income therefrom (including any profits made on the sale thereof). (f) Nothing contained in the compact shall be construed to obligate the United States legally or morally to pay the principal or interest on any bonds issued by the Susquehanna River Basin Commission. Wages. (g) All laborers and mechanics employed by contractors or subcontractors in the construction, alteration or repair, including painting and decorating of projects, buildings and works which are undertaken by the commission or are financiallv assisted by it, shall be paid wages at rates not less than those prevailing on similar construction in the locality so determined by the Secretary of Labor in accordance with 49 Stat. 1011. the Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5), and every such employee shall receive compensation at a rate not less than one and one half times his basic rate of pay for all hours worked in any workweek in excess of eight hours in any workday or forty hours in any workweek, as the case may be. A provision stating the minimum wages thus determined and the requirement that overtime be paid as above provided shall be set out in each project advertisement for bids and in leach bid proposal form and shall be made a part of the contract covering the project. The Secretary of Labor shall have, with respect to the administration and enforcement of labor standards specified in this provision, the supervisory, investigatory and other authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176, 64 Stat. 1267), and section 2 of the Act of June 13, 1934, as amended (48 Stat. 948, as amended, 50 U.S.C. 276(c)). 63 Stat. 108. 40 USC 276c. Discrimination, (h) The commission shall insure that there is no discrimination on prohibition. the ground of race, color, religion, sex. or national origin in (1) the programs and activities of the commission, (2) the employment practices of the commission, and (3) the employment practices of parties entering into contracts with the commission, including construction contracts and contracts for private concessions in connection with recreational facilities. (i) Contracts for the manufacture or furnishing of materials, supplies, articles and equipment with the commission which are in excess of $10,000 shall be subject to the provisions of the Walsh49 Stat. 2036. Healey Public Contracts Act (41 TT.S.C. 35 et seq.). Water pollution. (j) Nothing Contained in this Act or in the compact shall be construed as superseding or limiting the functions, under any other law, of the Secretary of the Interior or of any other officer or agency of the Ignited States, relating to water pollution: Provided, That the exercise of such functions shall not limit the authority of the commission to control, prevent or abate water pollution.

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(k) The provisions of section 8.4 of article 8 of the compact shall not be construed to apply to facilities operated pursuant to any other Federal law. (1) For the purposes of the Federal Tort Claims Act, of June 25, 1948 (62 Stat. 982), as amended (28 U.S.C. ch. 171 and sections 1346(b) and 2401(b)) and the Tucker Act of March 3, 1887 (24 Stat. 505), as amended (28 U.S.C. 1346(a)(2), 1402, 1491, 1496, 1501, 1503, 2411, 2412, 2501), and the Administrative Procedure Act of June 11, 1946 (60 Stat. 237), as amended (5 U.S.C. 551-558, 701-706), and the Federal Power Act of June 10, 1920 (41 Stat. 1063), as amended (16 U.S.C. 791-823), the commission shall not be considered a Federal agency. (m) The officers and employees of the commission (other than the United States member, alternate United States member, and advisers, and personnel employed by the United States member under direct Federal appropriation) shall not be deemed to be, for any purpose, officers or employees of the United States or to become entitled at any time by reason of employment by the commission to any compensation or benefit payable or made available by the United States solely and directly to its officere or employees. (n) Neither the compact nor this Act shall be deemed to enlarge the authority of any Federal agency other than the commission to participate in or to provide funds for projects or activities in the Susquehanna River Basin. (o) Notwithstanding paragraph 7 of section 3.10 of the compact, the United States district courts shall have original jurisdiction of all cases or controversies arising under the compact and this Act, and any case or controversy so arising initiated in a State court shall be removable to the appropriate United States district court in the manner provided by section 1446 of title 28, United States Code. Nothing contained in the compact or elsewhere in this Act shall be construed as a waiver by the United States of its immunity from suit. (p) The right to alter, amend, or repeal this Act is hereby expressly reserved. The right is hereby reserved to the Congress or any of its standing committees to require the disclosure and furnishing of such information and data by the Susquehanna River Basin Commission as is deemed appropriate by the Congress or any such committee. (q) The provisions of sections 2.4 and 2.6 of article 2 of the compact notwithstanding, the member and alternate member appointed by the President and adviser there referred to may be paid compensation by the United States, such compensation to be fixed by the President at the rates which he shall deem to prevail in respect to comparable officers in the executive branch. (r) 1. Nothing contained in this compact or in this Act shall impair, affect, or extend the constitutional authority of the United States. 2. Nothing contained in this compact or in this Act and no action of the commission shall supersede, impair, affect, compel, or prevent the exercise of any of the powers, rights, functions, or jurisdiction of the United States under other existing or future legislation in or over the area or waters which are the subject of the compact, including projects of the commission: Provided, That— (i) The commission shall serve as the principal agency for the coordination of Federal, State, interstate, local, and nongovernmental plans for water and related land resources in the Susquehanna River Basin. (ii) Except as provided in reservation (j), whenever a comprehensive plan, or any part or revision thereof, has been adopted with the concurrence of the member appointed by the President, the exercise of any powers conferred by law on any officer, agency, or instrumentality 47-348 O - 72 - 14 (Pt. 2)

1539 ^"fe» P- 1522.

62 Stat. 933.

jurisdiction. "^"'^' ^* ^^^^*

^2 Stat. 939;

^"'«' P- IS 13.

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of the United States with regard to water and related land resources in the Susquehanna River Basin shall not substantially conflict with any such portion of such comprehensive plan and the provisions of Antct pp. 1516, section 3.10 and article 12 of the compact shall be applicable to the 1524. extent necessary to avoid such substantial conflict: Provided further, That whenever the President shall find and determine that the national interest so requires, he may suspend, modify, or delete any provision of the comprehensive plan to the extent necessary to permit action by the affected agency or officer in accord with the national interest. Such action shall be taken by executive order in which such finding and determination shall be set forth. Federal project (iii) To insure consideration by Congress or any committee thereof proposals, comof the commission's views, proposals for Federal projects which come mission review. within one or more of the classes requiring commission review under section 3.10 of the compact shall be submitted to the commission for review and recommendation for a period of ninety days or such longer time as may be requested by the commission with the concurring Report to Convote of the member appointed by the President; and the recommendagress. tions and views of the commission thereon, if any, shall be included in any report submitted by the sponsoring Federal agency to the Congress or to any committee thereof in connection with any request for authorization or appropriations therefor. Comprehensive 3. For the purposes of paragraph 2(ii) hereof, concurrence by the plan, adoption. member appointed by the President shall be presumed unless within sixty days after notice to him of adoption of the comprehensive plan, or any part or revision thereof, he shall file with the commission Withdrawal, notice of (i) no objection, or (ii) nonconcurrence. Each concurrence notice. of the member appointed by the President in the adoption of the comprehensive plan or any part or revision thereof may be withdrawn by notice filed with the commission at any time between the first and sixtieth day of the sixth year after the initial adoption of the comprehensive plan and of every sixth year thereafter. (s) I n the event that any phrase, clause, sentence or provision of Ante, p. 1512. section 1.4 of article 1 of the compact, is declared to be unconstitutional under the constitution of any of the signatory parties, or the applicability thereof to any signatory party, agency or person is held invalid by a court of last resort of competent jurisdiction, the United States shall cease to be a party to the compact: Provided, That the President may continue United States participation in the activities of the commission to the extent that he deems necessary and proper to protect the national interest. (t)(1) All Acts or parts of Acts inconsistent with the provisions of this Act are hereby amended for the purpose of this Act to the extent necessary to carry out the provisions of this Act. (2) No action of the commission shall have the effect of repealing, modifying, or amending any Federal law. (u) Notwithstanding the provisions of section 2.2 and 2.3 of the compact, the Federal member of the commission and his alternate shall be appointed by the President of the United States and shall serve at the pleasure of the President. Technical serv(v) Notwithstanding the provisions of section 12.5 or any other ices. provision of the compact, the furnishing of technical services to the commission by agencies of the executive branch of the Government of the United States is pledged only to the extent that the respective agencies shall from time to time agree thereto or to the extent that the President may from time to time direct such agencies to perform such services for the commission. Nothing in the compact shall be deemed

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to require the United States to furnish administrative services or facilities for carrying out functions of the commission except to the extent that the President may direct. (w) Nothing contained in this Act or in the compact shall supersede, impair, affect, compel, or prevent the exercise of any of the powers, rights, functions, or jurisdiction of the Federal Power Commission, Federal Communications Commission, Atomic Energy Commission, Interstate Commerce Commission, or other such Federal independent regulatory agency under existing or future legislation. Accordingly, no action of the Susquehanna Eiver Basin Commission shall conflict with any of the terms or conditions of any license or permit granted or issued by the aforementioned Federal agencies. This reservation shall not be construed as a basis for noncompliance with the requirements of the compact or this Act; nor shall it be construed to permit use of waters of the Susquehanna River Basin or to endanger their quality without approval pursuant to the compact. EFFECTUATION

SEC. 3. (a) The President is authorized to take such action as may be necessary and proper, in his discretion, to effectuate the compact and the initial organization and operation of the commission thereunder. (b) Executive departments and other agencies of the executive branch of the Federal Government shall cooperate with and furnish appropriate assistance to the United States member. Such assistance shall include the furnishing of services and facilities and may include the detailing of personnel to the United States member. Appropriations are hereby authorized as necessary for the support of the United States member and his office, including appropriations for the employment of personnel by the United States member. Approved December 24, 1970.

Appropriation.

Public Law 91-576 AN ACT To designate the comprehensive Missouri River Basin development program as the Pick-Sloan Missouri Basin program.

December 24, 1970

[s. iioo]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the comprehen- Missouri B a s i n ^ Pick-Sloan ^^ sive program of flood control, navigation improvement, and develop- program ment for the Missouri Kiver Basin, which arose out of the coordination Designation of the multiple-purpose plans recommended in the report of the Corps of Engineers, United States Army, contained in House Document Numbered 475, Seventy-eighth Congress, and in the report of the Bureau of Eeclamation, Department of the Interior, contained in Senate Document Numbered 191, Seventy-eighth Congress, shall hereafter be known as the Pick-Sloan Missouri Basin p r o - a m. Any law, regulation, document, or record of the United States in which such program is designated or referred to under the name of the Missouri River Basin development program, or under any other name, shall be held and considered to refer to such program under and by the name of the Pick-Sloan Missouri Basin program. Approved December 24, 1970.

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Public Law 91-577 December 24, 1970

[S.3070]

Plant Variety Protection Act.

AN ACT

TQ encourage the development of novel varieties of sexually reproduced plants and to make them available to the public, providing protection available to those who breed, develop, or discover them, and thereby promoting progress in agriculture in the public interest.

Be it enacted by the Senate and House of Rejwesentatives United States of America in Congress assembled,

of the

INDEX Section TITLE I—Plant Variety Protection Office 1 TITLE II—Protectability of Plant Varieties and Certificates-of Protection, 41 TITLE III—Plant Variety Protection and Rights 101

TITLE I—PLANT VARIETY PROTECTION OFFICE Chapter

Section

1. Organization and Publications 2. Legal Provisions as to the Plant Variety Protection Office 3. Plant Variety Protection Fees

1 21 31

Chapter 1.—ORGANIZATION A N D PUBLICATIONS Section 1. Establishment. There is hereby established in the Department of Agriculture a bureau to be known as the Plant Variety Protection Office, which shall have the functions set forth in this Act. Sec. 2. SeaL The Plant Variety Protection Office shall have a seal with which documents and certificates evidencing plant variety protection shall be authenticated. Sec. 3. Organization. The organization of the Plant Variety Protection Office shall, except as provided herein, be determined by the Secretary of Agriculture (hereinafter called the Secretary]. The office shall devote itself substantially exclusively to the administration of this Act. Sec. 4. Restrictions on Employees as to Interest in Plant Variety Protection. Employees of the Plant Variety Protection Office shall be ineligible during the periods of their employment, to apply for plant variety protection and to acquire directly or indirectly, except by inheritance or bequest, any right or interest m any matters before that office. This section Shall not apply to members of the Plant Variety Protection Board who are not otherwise employees of the Plant Variety Protection Office. Sec. 5. Bond of Employees. Such employees as the Secretary designates, before entering upon their duties, ^ a l l severally give bond, with sureties, in sums prescribed by the Secretary, conditioned for the faithful discharge of their respective duties and that they shall render to the proper officers of the Treasury a true account of all money received by virtue of their offices. Sec. 6. Regulations. The Secretary may establish regulations, not inconsistent with law, for the conduct of proceedings in the Plant Variety Protection Office after consultations with the Plant Variety Protection Board.

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Sec. 7. Plant Variety Protection Board. (a) APPOINTMENT.—The Secretary shall appoint a Plant Variety Protection Board. The Board shall consist of individuals who are experts in various areas of varietal development covered by this Act. Membership of the Board shall include farmer representation and shall be drawn approximately equally from the private or seed industry sector and from the sector of government or the public. The Secretary or his designee shall act as chairman of the Board without voting rights except in the case of ties. (b) FUNCTIONS OF BOARD.—The functions of the Plant Variety Protection Board shall include: (1) Advising the Secretary concerning the adoption of Eules and Regulations to facilitate the proper administration of this Act; (2) Making advisory decisions on all appeals from the examiner. The Board shall determine whether to act as a full Board or by panels it selects; and whether to review advisory decisions made by a panel. For service on such appeals, the Board may select, as temporary members, experts in the area to which the particular appeal relates; and (3) Advising the Secretary on all questions under section 44. (c) COMPENSATION or BOARD.—The members of the Plant Variety Protection Board shall serve without compensation except for standard government reimbursable expenses. Sec. 8. Library. The Secretary shall maintain a library of scientific and other works and periodicals, both foreign and domestic, in the Plant Variety Protection Office to aid the officers in the discharge of their duties. Sec. 9. Register of Protected Plant Varieties. The Secretary shall maintain a register of published specifications of United States protected plant varieties and a file of such other scientific and technical information as may be necessary or practicable. Sec. 10. Publications. (a) The Secretary may publish, or cause to be published, in such format as he shall determine to be suitable, the following: (1) The specifications for plant variety protection including drawings and photographs. (2) The Official Journal of the Plant Variety Protection Office, including annual indices. (3) Pamphlet copies of the plant variety protection laws and rules of practice and circulars or other publications relating to the business of the Office. (b) The Plant Variety Protection Office may print the heading of the drawings or photographs for protected plant varieties for the purpose of photolithography and may provide suitable copy for any lithoghaphy to appear on the same page. (c) The Secretary may (1^ establish public facilities for the searching of plant variety protection records and materials, and (2) from time to time, as through an information service, disseminate to the public those portions of the technological and other public information available to or within the Plant Variety Protection Office to encourage innovation and promote the progress of the useful arts. (d) The Secretary may exchange any of the publications specified for publications desirable for the use of the Plant Variety Protection Office. The Secretary may exchange copies of specifications, drawings, and photographs of United States protected plant varieties for copies

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of specifications, drawings, and photographs of applications and protected plant varieties of foreign countries. Sec. 11. Copies far Public Libraries. The Secretary may supply printed copies of specifications, drawings, and photographs of protected plant varieties to public libraries in the United States which shall maintain such copies for the use of the public. Chapter 2.—LEGAL PROVISIONS AS TO THE PLANT VARIETY PROTECTION OFFICE

as use app.

Sec. 21. Day for Taking Action Falling on Saturday, Sunday, or Holiday. When the day, or the last day, for taking any action or paying any fee in the United States Plant variety Protection Office falls on Saturday, Sunday, a holiday within the District of Columbia, or on any other day the Plant Variety Protection Office is closed for the receipt of papers, the action may be taken or the fee paid, on the next succeeding business day. Sec. 22. Form of Papers Filed. The Secretary may by regulations prescribe the form of papers to be filed in the Plant Variety Protection Office. Sec. 23. Testimony in Plant Variety Protection Office Cases. The Secretary may establish regulations for taking affidavits, depositions, and other evidence required in cases before the Plant Variety Protection Office. Any officer authorized by law to take depositions to be used in the courts of the United States, or of the State where he resides, may take such affidavits and depositions, and swear the witnesses. If any person acts as a hearing officer by authority of the Secretary, he shall have like power. Sec. 24. Subpoenas, Witnesses. (a) The clerk of any United States court for the district wherein testimony is to be taken in accordance with regulations established by the Secretary for use in any contested case in the Plant Variety Protection Office shall, upon the application of any party thereof, issue a subpoena for any witness residing or being withih such district or within one hundred miles of the stated place in such district, commanding him to appear and testify before an officer in such district authorized to take depositions and affidavits, at the time and place stated in the subpoena. The provisions of the Federal Rules of Civil Procedure relating to the attendance of witnesses and the f)roduction of documents and things shall apply to contested cases in the Plant Variety Protection Office insofar as consistent with such regulations. (b) Every witness subpoenaed or testifying shall be allowed the fees and traveling expenses allowed to witnesses attending the United States district courts. (c) A judge of a court whose clerk issued a subpoena may enforce obedience to the process or punish disobedience as in other like cases, on proof that a witness, served with such subpoena, neglected or refused to appear or to testify. No witness shall be deemed guilty of contempt for disobeying such subpoena unless his fees and traveling expenses in going to, and returning from, one day's attendance at the place of examination^ are paid or tendered him at the time of the service of the subpoena; nor for refusing to disclose any secret matter except upon appropriate order of the court which issued the subpoena or of the Secretary.

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Sec. 25. Effect of Defective Execution. Any document to be filed in the Plant Variety Protection Office and which is required by any law or regulation to be executed in a specified manner may be provisionally accepted by the Secretary despite a defective execution, provided a properly executed document is submitted within such time as may be prescribed. Sec. 26. Regulations for Practice Before the Office. The Secretary shall prescribe regulations governing the admission to practice and conduct of persons representing applicants or other parties before the Plant Variety Protection Office, The Secretary may, after notice and opportunity for a hearing, suspend or exclude, either generally or in any particular case, from further practice before the Office of Plant Variety Protection any person shown to be incompetent or disreputable or guilty of gross misconduct. Sec. 27. Unauthorized Practice. Anyone who in the United States engages in direct or indirect practice before the Office of Plant Variety Protection while suspended or excluded under section 26, or without being admitted to practice before the Office, shall be liable in a civil action for the return of all money received, and for compensation for damage done by such person and also may be enjoined from such practice. However, there shall be no liability for damage if such person establishes that the work was done competently and without negligence. This section does not apply to anyone who, without a claim of self-sufficiency, works under the supervision of another who stands admitted and is the responsible party; nor to anyone who establishes that he acted only on behalf of any employer by whom he was regularly employed. Chapter 3.—PLANT VARIETY PROTECTION F E E S Sec. 31. Plant Variety Protection Fees; Appropriations. The Secretary shall, under such regulations as he may prescribe, charge and collect reasonable fees for services performed under this Act. The fees authorized shall be recovered to the Treasury of the United States of America, and expenses needed for the administration of this Act shall come through the Nation's regular budgetary, authorization, and appropriations process. The initial capital of the fund shall consist of appropriations, which are hereby authorized to be made. Until such time as the Secretary prescribes fees as provided by this section, a fee of $50 shall be charged for filing each application, subject to such adjustment as may be appropriate after fees are prescribed by the Secretary hereunder. Sec. 32. Payment of Plant Variety Protection Fees; Return of Excess Amounts. All fees shall be paid to the Secretary, and the Secretary may refund any sum paid by mistake or in excess of the fee required. TITLE II—PROTECT ABILITY OF PLANT VARIETIES A N D CERTIFICATES OF PROTECTION Chapter

4. 5. 6. 7. 8. 9.

Protection of Plant Varieties Applications: Form, Who May File, Relating Back, Confidentiality Examination: Response Time, Initial Appeals Appeals to Courts and Other Review Certificates of Plant Variety Protection Rexamination After Issue, and Contested Proceedings

Section

41 51 61 71 81 91

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Chapter 4.—PROTECTABILITY OF PLANT VARIETIES Sec. 41. Definitions and Rules of Construction. The definitions and rules of construction set forth in this section apply for the purposes of this Act. (a) The term "novel variety" may be represented by, without limitation, seed, transplants, and plants, and is satisfied if there is: (1) Distinctness in the sense that the variety clearly differs by one or more identifiable morphological, physiological or other characteristics (which may include those evidenced by processing or product characteristics, for example, milling and baking characteristics in the case of wheat) as to which a differenec in genealogy may contribute evidence, from all prior varieties of public knowledge at the date of determination within the provisions of section 42; and (2) Uniformity in the sense that any variations are describable, predictable and commercially acceptable; and (3) Stability in the sense that the variety, when sexually reproduced or reconstituted, will remain unchanged with regard to its essential and distinctive characteristics with a reasonable degree of reliability commensurate with that of varieties of the same category in which the same breeding method is employed. (b) The terms "United States" and "this country" means the United States of America, its territories and possessions, and the Commonwealth of Puerto Rico. (c) The term "kind" means one or more related species or subspecies singly or collectively known by one common name, for example, soybean, flax, or radish. (d) The term "date of determination" means the date when there has been at least tentative determination that the variety has been sexually reproduced with recognized characteristics, whether or not the novelty of those characteristics has been determined. (e) The term "breeder" shall mean the person who— (1) directs the final breeding creating the novel variety, or (2) discovers the novel variety, and makes the tentative determination described in subsection (^d). Where such actions are conducted by an agent on behalf of his principal, the principal, rather than the agent, shall be considered the breeder. The terms "breed", "develop", "originate", and "discover", and derivatives thereof shall each include the other. (f) The term "sexually reproduced" shall include any production of a variety by seed. (g) The term "basic seed" means the seed planted to produce certified or commercial seed. (h) The term "testing" means testing or experimental use of a variety before any sale thereof. Sale for other than seed purposes of seed or other plant material produced as the result of testing shall not constitute a sale for the purpose of the preceding sentence or for the purpose of the following subsection. (i) The term "public variety" means a variety sold or used in this country, or existing in and publicly known in this country; but use for the purpose of testing, or sale or use as individual plants not known to be sexually reproducible, shall not make the variety a public variety. (j) A variety described in a publication as specified in section 42(a) (1)(B) is "effectively available to workers in this country" if a source from which it can be purchased is indicated in such publication or readily determinable or if such publication teaches how to produce

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the variety from source-material effectively available to workers in this country. Sec. 42. Right to Plant Variety Protection; Plant Varieties Protectable. (a) The breeder of any novel variety of sexually reproduced plant (other than fungi, bacteria, or first generation hybrids) who has so reproduced the variety, or his successor in interest, shall be entitled to plant variety protection therefor, subject to the conditions and requirements of this title unless one of the following bars exists: (1) Before the date of determination thereof by the breeder, or more than one year before the effective filing date of the application therefor, the variety was (A) a public variety in this country, or (B) effectively available to workers in this country and adequately described by a publication reasonably deemed a part of the public technical knowledge in this country which description must include a disclosure of the principal characteristics by which the variety is distinguished. (2) An application for protection of the variety based on the same breeder's acts, was filed in a foreign country by the owner or his privies more than one year before the effective filing date of the application filed in the United States. (3) Another is entitled to an earlier date of determination for the same variety and such other (A) has a certificate of plant variety protection hereunder or (B) has been engaged in a continuing program of development and testing to commercialization, or (C) has within six months after such earlier date of determination adequately described the variety by a publication reasonably deemed a part of the public technical knowledge in this country which description must include a disclosure of the principal characteristics by which the variety is distinguished. (b) The Secretary may, by regulation, extend for a reasonable period of time the one year time period provided in subsection (a) for filing applications, and may in that event provide for at least commensurate reduction of the term of protection. Sec. 43. Reciprocity Limits. Protection under the Act may, by regulation, be limited to nationals of the United States, except where this limitation would violate a treaty and except that nationals of a foreign state in which they are domiciled shall be entitled to so much of the protection here afforded as is afforded by said foreign state to nationals of the United States for the same genus and species. Sec. 44. Public Interest In Wide Usage. The Secretary may declare a protected variety open to use on a basis of equitable remuneration to the owner, not less than a reasonable roj^alty, when he determines that such declaration is necessary in order to insure an adequate supply of fiber, food, or feed in this country and that the owner is unwilling or unable to supply the public needs for the variety at a price which may reasonably be deemed fair. Sucli declaration may be, with or without limitation, with or without designation of what the remuneration is to be; and shall be subject to review as under section 71 or 72 (any finding that the price is not reasonable being reviewable), and shall remain in effect not more than two years. I n the event litigation is required to collect such remuneration, a higher rate may be allowed by the court.

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Chapter 5—APPLICATIONS; FORM, WHO MAY FILE, RELATING BACK, CONFIDENTIALITY Sec. 51. Application for Recognition of Plant Variety Rights. (a) An application for a certificate of Plant Variety Protection may be filed by the owner of the variety sought to be protected. The application shall be made in writing to the Secretary, shall be signed by or on behalf of the applicant, and shall be accompanied by the prescribed fee. (b) An error as to the naming of the breeder, without deceptive intent, may be corrected at any time, in accordance with regulations established by the Secretary. Sec. 52. Content of Application. An application for a certificate recognizing plant variety rights shall contain: (1) The name of the variety except that a temporary designation will suffice until the certificate is to be issued. (2) A description of the variety setting forth its novelty and a description of the genealogy and breeding procedure, when known. The Secretary may require amplification, including the submission of adequate photographs or drawings or plant specimens, if the description is not adequate or as complete as is reasonably possible, and submission of records or proof of ownership or of allegations made in the application. An applicant may add to or correct the description at any time, before the certificate is issued, upon a showing acceptable to the Secretary that the revised description is retroactively accurate. Courts shall protect others from any injustice which would result. The Secretary may accept records of the breeder and of any official seed certifying agency in this country as evidence of stability where applicable. (3) A declaration that a viable sample of basic seed necessary for propagation of the variety will be deposited and replenished periodically in a public repository in accordance with regulations to be established hereunder. This declaration may be added by amendment. (4) A statement of the basis of applicant's ownership. Sec. 53. Joint Breeders. (a) When two or more persons are the breeders, one (or his successor) may apply, naming the others. (b) The Secretary, after such notice as he may prescribe, may issue a certificate of plant variety protection to the applicant and such of the other breeders (or their successors in interest) as may have subsequently joined in the application. Sec. 54. Death or Incapacity of Breeder. Legal i^epresentatives of deceased breeders and of those under legal incapacity may make application for plant variety protection upon compliance with the requirements and on the same terms and conditions applicable to the breeder or his successor in interest. Sec. 55. Benefit of Earlier Filing Date. (a) An application for a certificate of plant variety protection filed in this country based on the same variety, and on rights derived from the same breeder, on which there has previously been filed an application for plant variety protection in a foreign country which affords similar privileges in the case of applications filed in the United States

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by nationals of the United States, shall have the same effect as the same application would have if filed in the United States on the date on which the ai^plication for plant variety protection for the same variety was first filed in snch foreign country, if the application in this country is filed within twelve months from the earliest date on which such foreign application was filed. No application shall be entitled to a right of priority under this section, unless the applicant designates the foreign application in his application or by amendment thereto and, if required by the Secretary, furnishes such copy, translation or both, as the Secretary may specify. (b) An application for a certificate of plant variety protection for the same variety as was the subject of an application previously filed in the United States by or on behalf of the same person, or by his predecessor in title, shall have the same effect as to such variety as though filed on the date of the prior application if filed before the issuance of the certificate or other termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application. (c) A later application shall not by itself establish that a characteristic newly described was in the variety at the time of the earlier application. Sec. 56. Confidential Status of Application. Applications for plant variety protection and their contents shall be kept in confidence by the Plant Variety Protection Office, by the Board, and by the offices in the Department of Agriculture to which access may be given under regulations. No information concerning the same shall be given without the authority of the owner, unless necessary under special circumstances as may be determined by the Secretary, except that the Secretary may publish the variety names designated m applications, stating the kind to which each applies. Sec. 57. Publication. The Secretary may establish regulations for the publication of any pending application when publication is requested by the owner. Chapter 6.—EXAMINATION, RESPONSE APPEALS

TIME, INITIAL

Sec. 61. Examination of Application. The Secretary shall cause an examination to be made of the application and if on such examination it is determined that the applicant is entitled to plant variety protection under the law, the Secretary shall issue a notice of allowance of plant variety protection therefor as hereinafter provided. Sec. 62. Notice of Refusal; Reconsideration. (a) Whenever an application is refused, or any objection or requirement made by the examiner, the Secretary shall notify the applicant thereof, stating the reasons therefor, together with such information and references as may be useful in judging the propriety of continuing the prosecution of the application; and if after receiving such notice the applicant requests reconsideration, with or without amendment, the application shall be reconsidered. (b) For taking appropriate action after the mailing to him of an action other than allowance, an applicant shall be allowed six months, or such other time as the Secretary in exceptional circumstances shall set in the refusal, or such time as he may allow as an extension. Without such extension, action may be taken up to three months lat^ by paying an additional fee to be prescribed by the Secretary.

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Sec. 63. Initial AppeaL When an application for plant variety protection has been refused by the Plant Variety Protection Office, the applicant may appeal to the Secretary. The Secretary shall seek the advice of the Plant Variety Protection Board on all appeals, before deciding the appeal. Chapter 7.—APPEALS TO COURTS A N D OTHER REVIEW

28 USC app. 80 Stat. 622.

Sec. 71. Appeals. From the decisions made under sections 44, 63, 91, 92, and 128 appeal may, within sixty days or such further times as the Secretary allows, be taken under the Federal Rules of Appellate Procedure. The Court of Customs and Patent Appeals and United States Courts of Appeals shall have jurisdiction, with venue in the case of the latter as Stated in 28 U.S.C. 2343. Sec. 72. Civil Action Against Secretary. An applicant dissatisfied with a decision under section 63 or 91 of this title, may, as an alternative to appeal, have remedy by civil action against the Secretary in the United States District Court for the District of Columbia. Such action shall be commenced within sixty days after such decision or within such further time as the Secretary allows. The court may, in the case of review of a decision by the Secretary refusing plant variety protection, adjudge that such applicant is entitled to receive a certificate of plant variety protection for his variety as specified in his application as the facts of the case may appear, on compliance with the requirements of this Act. Sec. 73. Appeal or Civil Action in Contested Cases. (a) A party to a proceeding under section 92 of this title, dissatisfied with the decision, may take an appeal under section 71 or may have remedy by civil action if commenced within sixty days after such decision or within such further time as the Secretary allows. A party contemplating appeal as provided herein shall notify all adverse parties of his intention and any such adverse party, not the Secretary, shall have the right, by notice served within ten days of the notice to him, to elect that any review shall be by civil action. In such suits the record in the Plant Variety Protection Office shall be admitted on motion of any party upon the terms and conditions as to costs, expenses, and the further cross-examination of witnesses, as the court imposes, without prejudice to the right of the parties to take further testimony. The testimony and exhibits of the record in the Plant Variety Protection Office when admitted shall have the same effect as if originally taken and produced in the suit. (b) Such suit may be instituted against the party in interest as shown by the record of the Plant Variety Protection Office at the time of the decision complained of, but any party in interest may become a party to the action. If there be adverse parties residing in a plurality of districts not embraced within the same State, or an adverse party residing in a foreign country, the United States District Court for the District of Columbia, or any United States district court to which it may transfer the case, shall have jurisdiction and may issue summons against the adverse parties directed to the marshal of any district in which any adverse party resides. Summons against adverse parties residing in foreign countries may be served by publication or otherwise as the court directs. The Secretary shall not be made a party but he shall have the right to intervene. Judgment of the court in favor of the right of an applicant to plant variety protection shall authorize the Secretary to issue a certificate of plant variety protection on the filing in the Plant Variety Protection Office of a

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certified copj of the judgment and on compliance with the requirements of this Act. Chapter 8.—CERTIFICATES OF PLANT VARIETY PROTECTION Sec. 81. Plant Variety Protection. (a) If it appears that a certificate of plant variety protection should be issued on an application, a written notice of allowance shall be given or niailed to the owner. The notice shall specify the sum, constituting the issue fee, which shall be paid within one month thereafter. (b) Upon timely payment of this sum, and provided that deposit of seed has been made in accordance with section 52(3), the certificate of plant variety protection shall issue. (c) If any payment required by this section is not timely made, but is submitted with an additional fee prescribed by the Secretary within nine months after the due date or within such further time as the Secretary may allow, it shall be accepted. Sec. 82. How Issued. A certificate of plant variety protection shall be issued in the name of the United States of America under the seal of the Plant Variety Protection Office, and shall be signed by the Secretary or have his signature placed thereon, and shall be recorded in the Plant Variety Protection Office. Sec. 83. Contents and Term of Plant Variety Protection. (a) Every certificate of plant variety protection shall certify that the breeder (or his successor in interest) his heirs or assignees, has the right, during the term of the plant variety protection, to exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting it, or using it in producing (as distinguished from developing) a hybrid or different variety therefrom, to the extent provided by this Act. If the owner so elects, the certificate shall also specify that in the United States, seed of the variety shall be sold by variety name only as a class of certified seed and, if specified, shall also conform to the number of generations designated by the owner. Any rights, or all rights except tnose elected under the preceding sentence, may be waived; and the certificate shall conform to such waiver. The Secretary may at his discretion permit such election or waiver to be made after certificating and amend the certificate accordingly, without retroactive effect. (b) The term of plant variety protection shall expire seventeen years from the date of issue of the certificate in the United States. If the certificate is not issued within three years from the effective filing date, the Secretary may shorten the term by the amount of delay in the prosecution of- the application attributed by the Secretary to the applicant. (c) The term of plant variety protection shall also expire if the owner fails to comply with regulations, in force at the time of certificating, relating to replenishing seed in a public repository: Provided,

Expiration date.

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however. That this expiration shall not occur unless notice is mailed to the last owner recorded as provided in section 101(d) and he fails, within the time allowed thereafter, not less than three months, to comply with said regulations, paying an additional fee to be prescribed by the Secretary. Sec. 84. Certificate of Correction of Plant Variety Protection Office Mistake. Whenever a mistake in a certificate of plant variety protection, incurred through the fault of the Plant Variety Protection Office, is clearly disclosed by the records of the Office, the Secretary may issue a certificate of correction stating the fact and nature of such mistake, under seal, without charge, to be recorded in the records of plant variety protection. A copy thereof shall be attached to each copy of the published specifications or certificate of plant variety protection and such certificate of correction shall be considered as part of the original certificate of plant variety protection. Every such certificate of plant variety protection shall have the same effect as if the same had been originally issued in such corrected form. The Secretary may issue a corrected certificate of plant variety protection without charge in lieu of and with like effect as a certificate of correction. Sec. 85. Certificate of Correction of Applicant's Mistake. Whenever a mistake of a clerical or typographical nature, or of minor character, or in the description of the variety, which was not the fault of the Plant Variety Protection Office, appears in a certificate of plant variety protection and a showing has been made that such mistake occurred in good faith, the Secretary may, upon payment of the required fee, issue a certificate of correction in the manner and with attachment of copies as in section 84, if the correction unquestionably could have been made before the certificate issued. Such certificate of plant variety protection shall have the same effect and operation in law on the trial of actions for causes thereafter arising as if the same had been originally issued in such corrected form. Sec. 86. Correction of Named Breeder. An error as to the naming of a breeder in the application, without deceptive intent, shall not affect validity of plant variety protection and may be corrected at any time by the Secretary in accordance with regulations established by him or upon order of a federal court before which the matter is called in question. Upon such correction the Secretary shall issue a certificate accordingly. Such correction shall not deprive any person of any rights he otherwise would have had. Chapter 9 ^ R E E X A M I N A T I 0 N AFTER ISSUE, AND CONT E S T E D PROCEEDINGS Sec. 91. Rexamination After Issue. (a) Any person may, within five years after the issuance of a certificate of plant variety protection, notify the Secretary in writing of facts which may have a bearing on the protectability of the variety, and the Secretary may cause such plant variety protection to be reexamined in the light thereof. (b) Rexamination of plant variety protection under this section and appeals shall be pursuant to the same procedures and with the same rights as for original examinations. Abandonment of the procedure while subject to a ruling against the retention of the certificate shall result in cancellation of the plant variety certificate thereon and notice

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thereof shall be endorsed on copies of the specification of the protected plant variety thereafter distributed by the Plant Variety Protection Office. (c) If a person acting under subsection (a) makes a prima facie showing of facts needing proof, the Secretary may direct that the rexamination include such mterparty proceedings as he shall establish. Sec. 92. Priority Contest. (a) If the Secretary determines that two applications of different applicants may be based on the same variety, he may: (1) Initiate a priority contest on his own motion whether or not one of the applications may have been certificated; or (2) Issue a certificate on the application having the earliest effective filing date, with notice to all; or (3) Issue a certificate naming alternative owners, under a single variety name acceptable to both. (b) On request of any person when a certificate has been issued naming another as an owner or alternative owner, both having applied for protection on the same variety, the Secretary shall institute a priority contest, except that any person shall have forfeited his right to assert priority for the purpose of obtaining plant variety protection when an adverse certificate has issued if he fails to make the request within one year of the mailing of notice specified in part (2) above or if he fails to make the request within the period for taking action after refusal of his application on the basis of the adverse certificate. Sec. 93. Effect of Adverse Final Judgment or of Non Action. (a) A final judgment under section 92 adverse to an application from which no appeal or other review had been or can be taken or had shall constitute cancellation of any certificating on that application, and notice thereof shall be endorsed on copies of the specifications of the protected plant variety thereafter distributed by the Plant Variety Protection Office. (b) Any person who has not proceeded in accordance with the provision of this chapter shall not be foreclosed or in any way prejudiced with respect to the defense of an infringement suit or affirmative relief under declaratory judgment proceedings. (c) No person subject to an adverse decision in a proceeding under this chapter shall be foreclosed with respect to asserting comparable grounds in defense of an infringement suit or as a basis for affirmative relief under declaratory judgment proceedings. Sec. 94. Interfering Plant Variety Protection. The owner of a certificate of plant variety protection may have relief against another owner of a certificate of the same variety by civil action, and the court may adjudge the question of validity of the respective certificates, or the ownership of the certificate. The provisions of section 73(b) of this title shall apply to actions brought under this section. TITLE III—PLANT VARIETY PROTECTION A N D RIGHTS Chapter

10. Ownership and Assignment 11. Infringement of Plant Variety Protection 12. Remedies for Infringement of Plant Variety Protection, and Other Actions 13. Intent and Severability 14. Temporary Provision and Related Enactments; Exempted Plants; Miscellaneous

Section

101 111 121 131 141

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Chapter 10.—OWNERSHIP A N D ASSIGNMENT Sec. 101. Ownership and Assignment. (a) Subject to the provisions of this title, plant variety protection shall have the attributes of personal property. (b) Applications for certificates of plant variety protection, or any interest in a variety, shall be assignable by an instrument in writing. The owner may in like manner license or grant and convey an exclusive right to use of the variety in the whole or any specified part of the United States. (c) A certificate of acknowledgment under the hand and official seal of a person authorized to administer oaths within the United States, or in a foreign country, of a diplomatic or consular officer of the United States or an officer authorized to administer oaths whose authority is proved by a certificate of a diplomatic or consular officer of the United States, shall be prima facie evidence of the execution of an assignment, grant, license, or conveyance of plant variety protection or application for plant variety protection. (d) An assignment, grant, conveyance or license shall be void as against any subsequent purchaser or mortagee for a valuable consideration, without notice, unless it, or an acknowledgment thereof by the person giving such encumbrance that there is such encumbrance, is filed for recording in the Plant Variety Protection Office within one month from its date or at least one month prior to the date of such subsequent purchase or mortgage. Sec. 102. Ownership During Testing. An owner who, with notice that release is for testing only, releases possession of seed or other sexually reproducible plant material for testing retains ownership with respect thereto; and any diversion from authorized testing, or any unauthorized retention, of such material by anyone who has knowledge that it is under such notice, or who is chargeable with notice, is prohibited, and violates the property rights of the owner. Anyone receiving the material tagged or labeled with the notice is chargeable with the notice. The owner is entitled to remedy and redress in a civil action hereunder. No remedy available by State or local law is hereby excluded. No such notice shall be used, or if used be effective, when the owner has made identical sexually reproducible plant material available to the public, as by sale thereof. Chapter 11.—INFRINGEMENT OF PLANT VARIETY PROTECTION Sec. 111. Infringement of Plant Variety Protection. Except as otherwise provided in this title, it shall be an infringement of the rights of the owner of a novel variety to perform without authority, any of the following acts in the United States, or in commerce which can be regulated by Congress or affecting such commerce, prior to expiration of the right to plant variety protection but after either the issue of the certificate or the distribution of a novel plant variety with the notice under section 127: (1) sell the novel variety, or oflfer it or expose it for sale, deliver it, ship it, consign it, exchange it, or solicit an offer to buy it, or any otner transfer of title or possession of it; (2) import the novel variety into, or export it from, the United States;

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(3) sexually multiply the novel variety as a step in marketing (for growing purposes) the variety; or (4) use the novel variety in producing (as distinguished from developing) a hybrid or different variety therefrom; or (5) use seed which had been marked "propagation prohibited" or progeny thereof to propagate the novel variety; or (6) dispense the novel variety to another, in a form which can be propagated, without notice as to being a protected variety under which it was received; or (7) perform any of the foregoing acts even in instances in which the novel variety is multiplied other than sexually, except in pursuance of a valid United States plant patent; or (8) instigate or actively induce performance of any of the foregoing acts. Sec. 112. Grandfather Clause. Nothing in this Act shall abridge the right of any person, or his successor in interest, to reproduce or sell a variety developed and produced by such person more than one year prior to the effective filing date of an adverse application for a certificate of plant variety protection. Sec. 113. Right To Save Seed; Crop Exemption. Except to the extent that such action may constitute an infringement under subsections (3) and (4) of section 111, it shall not infringe any right hereunder for a person to save seed produced by him from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section: Provided, That without regard to the provisions of section 111(3) it shall not infringe any right hereunder for a person, whose primary farming occupation is the growing of crops for sale for other than reproductive purposes, to sell such saved seed to other persons so engaged, for reproductive purposes, provided such sale is in compliance with such State laws governing the sale of seed as may be applicable. A bona fide sale for other than reproductive purposes, made m channels usual for such other purposes, of seed produced on a farm either from seed obtained by authority of the owner for seeding purposes or from seed produced by descent on such farm from seed obtained by authority of the owner for seeding purposes shall not constitute an infringement. A purchaser who diverts seed from such channels to seeding purposes shall be deemed to have notice under section 127 that his actions constitute an infringement. Sec. 114. Research Exemption. The use and reproduction of a protected variety for plant breeding or other bona fide research shall not constitute an infringement of the protection provided under this Act. Sec. 115. Intermediary Exemption. Transportation or delivery \yy a carrier in the ordinary course of its business as a carrier, or advertising by a person in the advertising business in the ordinary course of that business, shall not constitute an infringement of the protection provided under this Act.

47-348 O - 72 - 15 (Pt. 2)

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[84 STAT.

Chapter 12.—REMEDIES FOR INFRINGEMENT OF PLANT VARIETY PROTECTION, AND OTHER ACTIONS Sec. 121. Remedy for Infringement of Plant Variety Protection. An owner shall have remedy by civil action for infringement of his plant variety protection under section 111. If a variety is sold under the name of a variety shown in a certificate, there is a prima facie presumption that it is the same variety. Sec. 122. Presumption of Validity; Defenses. (a) Certificates of plant variety protection shall be presumed valid. The burden of establishing invalidity of a plant variety protection shall rest on the party asserting invalidity. (b) The following shall be defenses in any action charging infringement and shall be pleaded: (1) noninfringement, absence of liability for infringement, or unenforceability; (2) invalidity of the plant variety protection in suit on any ground specified in section 42 of this title as a condition for protectability; (3) mvalidity of the plant variety protection in suit for failure to comply with any requirement of section 52; (4) that the asserted infringement was performed under an existing certificate adverse to that asserted and'prior to notice of the infringement; and (5) any other fact or act made a defense by this Act. Sec. 123. Injunction. The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right hereunder on such terms as the court deems reasonable. Sec. 124. Damages. (a) Upon finding an infringement the court shall award damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the variety by the infringer, together with interest and costs as fixed by the court. (b) When the damages are not determined by the jury, the court shall determine them. I n either event the court may increase the damages up to three times the amount determined. (c) The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances. (d) As to infringement prior to, or resulting from a planting prior to, issuance of a certificate for the infringed variety, a court finding the infringer to have established innocent intentions, shall have discretion as to awarding damages. Sec. 125. Attorney Fees. The court in exceptional cases may award reasonable attorney fees to the prevailing party. Sec. 126. Time Limitation on Damages. (a) No recovery shall be had for that part of any infringement committed more than six years (or known to the owner more than one year) prior to the filing of the complaint or counterclaim for infringement in the action. (b) In the case of claims against the United States Government for unauthorized use of a protected variety, the period between the date of receipt of written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as part of the period referreH to in the preceding paragraph.

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Sec. 127. Limitation of Damages; Marking and Notice. Owners may give notice to the public by physically associating with or affixing to the container of seed of a novel variety or by fixing to the novel variety, a label containing the words "Propagation Prohibited" and after the certificate issues, such additional words as "LT.S. Protected Variety", I n the event the novel variety is distributed by authorization of the owner and is received by the infringer without such marking, no damages shall be recovered against such infringer by the owner in any action for infringement, unless the infringer has actual notice or knowledge that propagation is prohibited or that the variety is a protected variety, in which event damages may be recovered only for infringement occurring after such notice. As to both damages and injunction, a court shall have discretion to be lenient as to disposal of materials acquired in good faith by acts prior to such notice. Sec. 128. False Marking; Cease and Desist Orders. (a) Each of the following actSj if performed in connection with the sale, offering for sale, or advertising of sexually reproducible plant material, is prohibited, and the Secretary may, if he determines after an opportunity for hearing that the act is bein^ so performed, issue an order to cease and desist, said order being binding unless appealed under section 7 1: (1) Use of the words "U.S. Protected Variety" or any word or number importing that the material is a variety protected under certificate, when it is not. (2) Use of any wording importing that the material is a variety for which an application for plant variety protection is pending, when it is not. (3) Use of the phrase "propagation prohibited" or similar phrase without reasonable basis, a statement of this basis being promptly filed with the Secretary if the phrase is used beyond testing and no application has been filed. Any reasonable basis expires one year after the first sale of the variety except as justified thereafter by a pending application or a certificate still in force. (b) Anyone convicted of violating a binding cease and desist order, or of perrorming any act prohibited in subsection (a) of this section for the purpose of deceiving the public, shall be fined not more than $10,000 and not less than $500. (c) Anyone whose business is damaged or is likely to be damaged by an act prohibited in subsection (a) of this section, or is subjected to competition in connection with which such act is performed, may have remedy by civil action. Sec. 129. Nonresident Proprietors; Service and Notice. Every owner not residing in the United States may file in the Plant Variety Protection Office a written designation stating the name and address of a person residing within the United States on whom may be served process or notice of proceedings affecting the plant variety protection or rights thereunder. If the person designated cannot be found at the address given in the last designation, or if no person has been designated, the United States District Court for the District of Columbia shall have jurisdiction and summons shall be served by publication or otherwise as the court directs. The court shall have the same jurisdiction to take any action respecting the plant variety protection, or rights thereunder that it would have if the owner were personally within the jurisdiction of the court.

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[84 STAT.

Chapter 13.—INTENT AND SEVERABILITY Sec. 131. Intent. It is the intent of Congress to provide the indicated protection for new varieties by exercise of any constitutional power needed for that end, so as to afford adequate encouragement for research, and for marketing when appropriate, to yield for the public the benefits of new uscprec.title 1. varieties. Constitutional clauses S and 8' of article I, section 8 are both relied upon. Sec. 132. Severability. If this Act is held unconstitutional as to some provisions or circumstances, it shall remain in force as to the remaining provisions and other circumstances. Chapter 14.—TEMPORARY PROVISION AND RELATED ENACTMENTS; EXEMPTED PLANTS; MISCELLANEOUS

7 USC 1551.

Sec. 141. Effective Date. This Act shall take effect upon enactment. Applications may be filed with the Secretary and held by him until the Office of Plant Variety Protection is organized and in operation. Sec. 142. Amendment of Federal Seed Act. The Federal Seed Act (53 Stat. 1275) is amended as follows: (a) By adding at the end thereof:

"TITLE V—SALE OF UNCERTIFIED SEED OF PROTECTED VARIETY "Section 501. " (a) It shall be unlawful in the United States or in interstate or foreign commerce to sell by variety name seed not certified by an official ^eed certifying agency when it is a variety for which a certificate of plant variety protection under the Plant Variety Protection Act specifies sale only as a class of certified seed: Provided, That seed irom a certified lot may be labeled as to variety name when used in a mixture by, or with the approval of, the owner of the variety." Protected va(b) By adding at the end of section 102 the following wording: riety, seed certifi- «ggg^ Qf ^ yariety for which a certificate of plant variety protection cation, limuation.

83 Stat. 134. 7 USC 1562.

62 Stat. 869. 80 Stat. 901.

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under the Plant Variety Protection Act specifies sale only as a class of certified seed shall be certified only when "(1) the basic seed from which the variety was produced was furnished by authority of the owner of the variety if the certification is made during the term of protection, and "(2) it conforms to the number of generations designated by the certificate, if the certificate contains such a designation.". Sec. 143. Amendment of Judicial Code. Title 28 of the United States Code, entitled Judicial Code and Judiciary, is amended as follows: (a) After section 1644 add: "Sec. 1545. Decision of the Plant Variety Protection Office. "The Court of Customs and Patent Appeals shall have nonexclusive jurisdiction of appeals under section 71 of the Plant Variety Protection Act."

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(b) I n section 1338 after "Patents" in the heading, after "patents" ^2 Stat. 931. and after "patent" (both occurrences) insert ", plant variety protection". (c) After section 2351 a d d: so Stat. 624. "2353. The Court of appeals has nonexclusive jurisdiction to hear appeals under section 71 of the Plant Variety Protection Act." (d) I n section 1498 add the following new subsection: u s''"courrof^"^' " (d) Hereafter, whenever a plant variety protected by a certificate claims. " of plant variety protection under the laws of the United States shall,/^^^*Vcc'*^' be infringed by the United States, by a corporation owned or controlled 74 Stat. 855. by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization and consent of the Government, the exclusive remedy of the owner of such certificate shall be by action against the United States in the Court of Claims for the recovery of his reasonable and entire compensation as damages for such infringement: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the protected plant variety by the Government: Provided, however, That this subsection shall not confer a right of action on any certificate owner or any assignee of such owner with respect to any protected plant variety made by a person while in the employment or service of the United States, where such variety was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted, the appropriate corporation owned or controlled by the United States or the head of the appropriate agency of the Government, as the case may be, is authorized to enter into an agreement with the certificate owner in full settlement and compromise, for the damages accrued to him by reason of such infringement and to settle the claim administratively out of available appropriations." Sec. 144. Exempted Plants. The provisions of this Act shall not apply to the seeds, plants, or transplants of okra, celery, peppers, tomatoes, carrots, and cucumbers. Sec. 145. Short Title. This Act may be cited as the "Plant Variety Protection Act". Approved December 24, 1970.

Public Law 91-578 AN ACT December 24, 1970

To amend section 2 of the Act of June 30, 1954, as amended, providing for the continuance of civil government for the Truist Territory of the Pacific Islands.

[s. 3479]

Be it enacted by the Senate and House of Representatives of the United States of AmsTica in Congress assembled, That section 2 of the Pacific Trust Act of June 30, 1954 (Q8 Stat. 330), as amended, is amended by delet- Jovemme'nt''" ing "for fiscal year 1969, $5,000,000 in addition to the sums heretofore Ap^^prL'tion. appropriated, for fiscal year 1970, $50,000,000 and for the fiscal year H ^t^'-1213. 1971, $50,000,000" and inserting in lieu thereof the following: "for note. ^^^^ each of the fiscal years 1971, 1972, and 1973, $60,000,000". Approved December 24, 1970.

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[84 STAT.

Public Law 91-579 December 24, 1970 [H.R.19846]

Animal Welfare Act of 1970.

7 USC 2131.

7 USC 2132.

"Affecting commerce.**

"Research facility."

"Dealer."

AN ACT To amend the Act of August 24, 1966, relating to the care of certain animals used for purposes of research, experimentation, exhibition, or held for sale as pets.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Animal Welfare Act of 1970". SEC. 2. The first section of the Act of August 24, 1966 (Public Law 89-544; 80 Stat. 350), as amended, is amended to read as follows: "That, in order to protect the owners of animals, from the theft of their animals, to prevent the sale or use of animals which have been stolen, and to insure that certain animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment, it is essential to regulate the transportation, purchase, sale, housing, care, handling, and treatment of such animals by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or in transporting, buying, or selling them for any such purpose or use." SEC. 3. Section 2 of such Act is amended— (1) in subsection (b) by striking the semicolon after the word "Agriculture" and inserting the following: "of the United States or nis representative who shall be an employee of the United States Department of Agriculture;": (2) in subsection (c) by striking the words "commerce between any State," and inserting in lieu thereof the words "trade, traffic, commerce, transportation among the several States, or between any State,"; (3) by striking subsections (d), (e), (f), (g), and (h) and inserting in lieu thereof the following: " (d) The term 'affecting commerce' means in commerce or burdening or obstructing or substantially affecting commerce or the free flow of commerce, or having led or tending to lead to the inhumane care of animals used or intended for use for purposes of research, experimentation, exhibition, or held for sale as pets, by burdening or obstructing or substantially affecting commerce or the free flow of commerce; "(e) The term 'research facility' means any school (except an elementary or secondary school), institution, organization, or person that uses or intends to use live animals in research, tests, or experiments, and that (1) purchases or transports live animals affecting commerce, or (2) receives funds under a grant, award, loan, or contract from a department, agency, or instrumentality of the United States for the purpose of carrying out research, tests, or experiments: Provided, That the Secretary may exempt, by regulation, any such school, institution^ organization, or person that does not use or intend to use live dogs or cats, except those schools, institutions, organizations, or persons, which use substantial numbers (as determined by the Secretary) of live animals the principal function of which schools, institutions, organizations, or persons, is biomedical research or testing, when in the judgment of the Secretary, any such exemption does not vitiate the purpose of this Act; " (f) The term 'dealer' means any person who for compensation or profit delivers for transportation, or transports, except as a common carrier, buys, or sells any animals whether alive or dead, affecting commerce, for research or teaching purposes or for exhibition purposes or for use as pets, but such term excludes any retail pet store except such

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store which sells any animals to a research facility, an exhibitor, or a dealer; " (g) The term 'animal' means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes horses not used for research purposes and other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or jfiber; and " (h) The term 'exhibitor' means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary." SEC. 4. Section 8 of such Act is amended— (1) in the first sentence thereof after the words "licenses to dealers" by inserting the words "and exhibitors"; (2) in the first proviso thereof after the words "until the dealer" by inserting the words "or exhibitor"; (3) in the second proviso thereof after the words "That any" by inserting the words "retail pet store or other"; (4) in the second proviso thereof after the words "as a dealer" insert the words "or exhibitor"; and (5) in the last sentence thereof after the words "as dealers" each time such words appear, insert the words "or exhibitors". SEC. 5. Section 4 of such Act is amended to read as follows: "SEC. 4. No dealer or exhibitor shall sell or offer to sell or transport or offer for transportation, affecting commerce, to any research facility or for exhibition or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, affecting commerce, to or from another dealer or exhibitor under this Act any animal, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked." SEC. 6. Section 5 of such Act is amended— (1) by inserting after the words "No dealer" the words "or exhibitor"; and (2) by inserting before the period at the end thereof the proviso ": Provided, That operators of auction sales subject to section 12 of this Act shall not be required to comply with the provisions of this section". SEC. 7. Section 6 of such Act is amended by inserting after the words "research facility" the words "and every exhibitor not licensed under section 3 of this Act". SEC. 8. Section 7 of such Act is amended— (1) by inserting between the words "except" and "a person" the words "an operator of an auction sale subject to section 12 of this Act or"; and

'•Animal."

••Exhibitor."

Licenses, dealers and exhibitors, 80 Stat. 3 5 1. 7 USC 2133.

7 USC 2134.

7 USC 2135.

Post,

p. 156;

Registration. 7 USC 2136. Supta, Purchase restrictions. 7 USC 2137.

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