U.S.D.A. Ruling on Bluegrass Stirs Cries of Lax Regulation

The department said that an herbicide-tolerant Kentucky bluegrass being developed by Scotts Miracle-Gro was not subject to federal regulation because its creation did not entail use of any plant pests.

The decision, issued late Friday, frees Scotts to sell the grass, which is meant for lawns, without federal approval. The company also does not need federal permits to conduct field trials, even though a different type of genetically engineered grass escaped from company test plots in the past and established itself in the wild.

The genetically engineered bluegrass contains a gene that allows it to tolerate the widely used herbicide Roundup, also known as glyphosate. That allows the chemical to be sprayed to kill weeds without harming the grass.

Michael C. Gregoire, who oversees biotechnology crop regulation at the Agriculture Department, said in an interview Wednesday that the ruling did not represent “a change in policy or a relaxing or abandoning of the regulation of G.E. crops.” He said other genetically engineered crops, like a petunia, had been exempted from regulation in the past.

Still, the decision shocked some critics of biotechnology crops. “It’s a blatant end-run around regulatory oversight,” said George Kimbrell, senior lawyer at the Center for Food Safety, a Washington advocacy group.

Margaret Mellon, director of the food and environment program at the Union of Concerned Scientists, said other companies might follow the same strategy, putting the Agriculture Department “out of the game of regulation.”

The critics say there have been other signs that the Agriculture Department has been looking to weaken regulation, like a proposed pilot project that would let companies provide more input into the environmental assessments of their crops.

While some environmental groups say regulation is too lax, some biotechnology executives and academic plant scientists say it is unnecessarily rigorous and slow, impeding development of important new crops.

The situation with the Kentucky bluegrass arises because genetically engineered crops are regulated under rules pertaining to plant pests.

The rules are really meant for pathogens and parasites, not corn stalks. Still, they could be stretched to cover the crops because most of them contain a snippet of DNA from a plant virus that functions as a genetic on-switch. And the foreign gene is often inserted using a bacterium that can cause a disease in plants.

But in creating its bluegrass, Scotts deliberately avoided using any material from plant pests. The herbicide resistance gene and the genetic on-switch came from other plants and were fired into the grass’s DNA with a gene gun, rather than being carried in by a bacterium.

The company then sent a letter to the Agriculture Department in September, arguing that the grass was therefore not subject to regulation.

The Agriculture Department agreed. It also declined to regulate the bluegrass as a noxious weed, denying a request from the Center for Food Safety.

Richard Shank, chief environmental officer at Scotts, said the company’s strategy “wasn’t designed specifically to get around regulations or anything like that. It just made more sense. There was a lot of concern about using plant pest materials in biotechnology and we wanted to get away from that.”

Still, the strategy means that the bluegrass will not encounter the regulatory problems that have beset Scotts’s genetically engineered creeping bentgrass, which does contain material from plant pests.

That grass, meant for golf courses, is still awaiting approval eight years after the company submitted its application.

Scotts was fined $500,000 in 2007 after the bentgrass escaped from field test sites in central Oregon and established itself in the wild. More recently the grass, presumably from a field test in Idaho, was found growing in nearby southern Oregon.

Mr. Shank said limited field testing of the Kentucky bluegrass would begin soon but the product would not come to market for years.

In a letter to Scotts on Friday, Tom Vilsack, the secretary of agriculture, told the company to work with others to make sure that the grass did not spread where it was unwanted, for example, pastures where organic cows graze. Mr. Shank said Scotts would do that.

Doug Gurian-Sherman, a senior scientist at the Union of Concerned Scientists, said many of the genetically engineered crops now under development did not use viral material so they could conceivably escape regulation.

But L. Val Giddings, an industry consultant, disagreed, saying most crops continue to use material from plant pests. Monsanto, the leading developer of genetically engineered crops, said products in its current pipeline would be regulated.

Stanley H. Abramson, a Washington lawyer who has represented biotech companies, said that genetically engineered food crops would not be accepted by the market without government approval. So only developers of nonedible plants like grass or flowers might try to exempt themselves from regulation, he said.

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