RULES AND REGULATIONS
DEPARTMENT OF AGRICULTURE
[ 7 PA. CODE CH. 111 ]
Seed Testing, Labeling and Standards
[39 Pa.B. 2573]
[Saturday, May 23, 2009]
The Department of Agriculture (Department) amends Chapter 111 (relating to seed testing, labeling and standards) to read as set forth in Annex A.
The Department, under the authority of 3 Pa.C.S. Chapter 71 (relating to the Seed Act) (act) and under the specific authority of sections 7111 and 7117 of the act (relating to powers and duties of secretary and department; and rules and regulations) amends Chapter 111. The act replaces The Pennsylvania Seed Act of 1965 (3 P. S. §§ 285-1--285-11).
Section 7111 of the act authorizes and empowers the Department to enforce the provisions of the act and to '' . . . prescribe, modify and enforce such reasonable rules, regulations, standards, tolerances and orders as in the judgment of the secretary shall be necessary to carry out the provisions of [the act].'' See 3 Pa.C.S. § 7111(a). In addition, section 7111 of the act establishes specific powers and duties of the Department and provides for delegation of such authority. See 3 Pa.C.S. § 7111(b) and (c). Section 7117 of the act specifically delineates that the Department '' . . . shall promulgate and enforce rules and regulations necessary for administration and implementation of [the act].'' See 3 Pa.C.S. § 7117. Consistent with that authority and to establish regulations which are consistent with the provisions of the act, the Department is amending Chapter 111.
Purpose of the Final-Form Regulation
The regulations are required to establish regulations which are consistent with the act. The promulgation and implementation of these amended regulations is necessary to comply with the statute. The amended regulations will be in compliance with the new statute and will eliminate incompatibility and redundancy that occurs with the statute and the current regulations.
The regulation establishes seed testing, labeling and standards criteria for seed producers and distributors. The regulations define seed testing requirements, labeling terminology and requirements and procedures for seed distributors consistent with the requirements of the act. The regulations were developed to ensure that the public health, safety and environment of the citizens of this Commonwealth are not negatively impacted by the marketing and use of untested or adulterated seed.
The more uniform method of seed labeling set forth in this regulation will allow for a more understandable seed label for the purchaser of seed products. Farmers, seeds distributors and home gardeners will benefit from the changes implemented by this regulation.
Comment and Responses
Interested persons were invited to submit written comments regarding the proposed regulations within 30 days following publication at 38 Pa.B. 2256 (May 17, 2008). The Department received only one comment on the proposed regulations. The comment was from PennAg Industry Association (PennAg Industry) and set forth its approval and support of the proposed amendments to Chapter 111. The Department sent a letter to PennAg Industry informing it of the right to receive a copy of the final-form regulations. The Department received no comments from the Independent Regulatory Review Commission (IRRC). Because the comment received was positive and requested no changes to the proposed regulations, the Department has made no changes from the proposed regulations to the final-form rulemaking.
The Comment and Response will be published in the Pennsylvania Bulletin as part of this final-form Preamble and along with the Annex A. The Department will also make the regulation, including this Preamble and the Annex A available for review on the Department's web site at www.agriculture.state.pa.us. Individuals who would like to request a hard copy of the Annex A or Preamble may call Joe Garvey in the Department of Agriculture, Bureau of Plant Industry at (717) 787-4894.
PennAg Industries submitted a comment letter for this regulation in which PennAg expressed its support of the proposed regulations. PennAg appreciated the acknowledgement the Department gave the PennAg Seed Council in the regulations. PennAg stated that the regulations would continue to provide more uniformity within the seed industry, therefore benefiting the seed producers and marketers and consumers purchasing and using the products. PennAg also mentioned that the provisions in this chapter are part of a National seed industry initiative working toward the adoption of Recommended Uniform State Seed Laws (RUSSL). Along with RUSSL, the proposed regulations would allow for compliance and continuity with Federal seed regulation, the United States Department of Agriculture's Animal and Plant Health Inspection Service National harmonization program and certification standards of the Association of Official Seed Certifying Agencies. The proposed regulations would allow Pennsylvania's seed industry to remain part of the competitive seed market.
The Department acknowledged PennAg's comment in writing. The Department appreciates PennAg's support of the regulations. No changes were made to the proposed regulation.
The final-form regulations will not impose additional fiscal impact upon the Commonwealth. The fee schedule and all associated fees are now established in the act. There are no new costs associated with these regulations. There are no adverse affects or costs associated with amending the regulations. The amended regulations create uniformity and consistency with the act. There will be no costs or savings to State government. There are no additional State government staff resources necessary to implement these regulations.
Local government is not associated with the implementation or enforcement of the regulations. Therefore, the final-form regulations will impose no additional work or costs and have no fiscal impact upon any political subdivision. The regulations will impose no additional burden of enforcement on political subdivisions.
The final-form regulations will impose no additional costs on the private sector. The fee schedule and all associated fees are now established in the act.
The final-form regulations will impose no direct costs and have no fiscal impact on the general public. Farmers, seed distributors and home gardeners will benefit from the changes to these regulations. These changes will eliminate redundancies that have occurred with the amendment of the act. A more uniform method of seed labeling will allow for a more understandable seed label for the purchaser of seed products.
The final-form regulations will not result in any increase in paperwork. Review and administrative procedures will be very similar to the existing system overseen by the Department.
Compliance with the regulation is required within 30 days of publication of the regulations.
Further information is available by contacting the Department of Agriculture, Bureau of Plant Industry, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attn: Joe Garvey at (717) 787-4894.
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the notice of proposed rulemaking published at 38 Pa.B. 2256 on May 2, 2008, to IRRC and to the Chairpersons of the House and Senate Agriculture and Rural Affairs Committees (Committees) for review and comment.
In compliance with section 5(b) of the Regulatory Review Act, the Department also provided the Commission and the Committees with copies of all comments received. In preparing this final-form regulation, the Department has considered all comments received from the Commission, the Committees and the public.
These final-form regulations were deemed approved by the Committees on April 1, 2009. Under section 5(g) of the Regulatory Review Act, the final-form regulations were deemed approved by IRRC effective April 1, 2009.
The Department finds that:
(1) Public notice of intention to adopt this final-form regulation has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and their attendant regulations at 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law and all comments received were considered.
(3) No modifications to this regulation in response to comments received were necessary or made and therefore there is no enlargement of the purpose of the proposed regulation published at 38 Pa.B. 2256.
(4) The adoption of the regulation in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
The Department, acting under the authorizing statute, orders the following:
(1) The regulations of the Department, 7 Pa. Code Chapter 111, are amended by amending §§ 111.1--111.4, 111.11--111.13, 111.16, 111.17, 111.22, 111.23 and 111.41; and by deleting §§ 111.15 and 111.21 to read as set for in Annex A.
(2) The Secretary of Agriculture shall submit this order and Annex A to the Office of General Counsel and Office of Attorney General for approval as required by law.
(3) The Secretary of Agriculture shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(4) This order shall take effect June 22, 2009.
DENNIS C WOLFF,
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 39 Pa.B. 2064 (April 18, 2009).)
Fiscal Note: Fiscal Note 2-156 remains valid for the final adoption of the subject regulation.
TITLE 7. AGRICULTURE
PART V. BUREAU OF PLANT INDUSTRY
CHAPTER 111. SEED TESTING, LABELING AND STANDARDS
§ 111.1. Sampling and testing of seeds.
The terms used in seed testing and the methods of sampling, inspecting, analyzing, testing and examining agriculture, vegetable, flower, tree and shrub seeds, and lawn and turf mixtures and the tolerance allowed thereof shall be those adopted by the Association of Official Seed Analysts (AOSA), effective October 1, 1981, as amended, except that tolerance will not be allowed for prohibited noxious weed seeds. A copy of the rules may be obtained from the current Secretary-Treasurer AOSA or at www. aosaseed.com.
§ 111.2. Condition of seeds for testing.
(a) Dirty or uncleaned seeds and mixed seed kinds when a percentage of analysis is not provided will not be tested.
(b) Seed samples treated with a material will not be tested unless the name of the substance is plainly marked on the container in accordance with this chapter.
(c) The year of harvest, if known, shall be marked on the container.
§ 111.3. Fees and schedule of charges.
(a) The testing fee shall accompany the sample or the cost of testing will be billed at the first of every month. A fee will be considered past due when payment is not received within 30 days from day of billing.
(b) Fees shall be paid by check or money order made payable to the Commonwealth of Pennsylvania. Cash will not be accepted.
(c) A Pennsylvania Noxious Weed Seed Examination shall be included with purity analyses.
§ 111.4. Prohibitions and requirements.
(a) Seeds of which the analysis is already known will not be sent for testing unless:
(1) There is suspicion that the law is being violated.
(2) Verification of the analysis is required, in which case a copy of the analysis given by the dealer shall accompany the sample.
(b) The analysis and test may be used for labeling purposes but the name of the Bureau of Plant Industry shall in no way be used for advertising purposes.
(c) Samples to be tested shall be sent to the Bureau of Plant Industry at least 30 days before the seeds are to be planted or sold.
(d) Procedures for sampling are as follows:
(1) Samples shall be analyzed in the order in which they are received and reports shall be made as promptly as the work permits.
(2) The time required for germination tests of seeds shall be between 6 and 28 days, depending on the kind of seed.
(3) The time required for germination tests of tree seeds varies greatly.
§ 111.11. General labeling requirements.
(a) In labeling the kind of agriculture, vegetable, flower, tree or shrub seeds as required in 3 Pa.C.S. § 7104 (relating to labels and labeling), the following apply:
(1) Names and classifications (that is ''crop'' or ''weed'') used shall be those specified in the Rules for Seed Testing by the Association of Official Seed Analysts.
(2) Variety names shall be confined to the recognized names for the kind and may not include names or terms which create a misleading impression as to the history or quality of the seeds.
(3) Abbreviations of names of the kind and variety of seed may not be permitted.
(4) The following kinds of agricultural seed are generally labeled as to variety and shall be labeled to show either the variety name or the words ''Variety Not Stated'' or ''VNS'':
(iv) Bean, field
(v) Beet, field
(vi) Brome, smooth
(viii) Clover, crimson
(ix) Clover, red
(x) Clover, white
(xi) Corn, field
(xii) Corn, pop
(xiv) Fescue, tall
(xvi) Lespedeza, striata
(xvii) Millet, foxtail
(xviii) Millet, pearl
(xx) Pea, field
(xxvi) Sorghum sudangrass hybrid
(xxxi) Trefoil, birdsfoot
(xxxii) Wheat, common
(xxxiii) Wheat, durum
(b) When variety or strain names are stated, they shall be used in connection with the full kind name, such as ''Alta Tall Fescue,'' ''Merion Kentucky Bluegrass,'' and ''Michihli Chinese Cabbage.''
§ 111.12. Labeling of flower seeds.
The provisions in 3 Pa.C.S. § 7104 (relating to labels and labeling) require that flower seeds be labeled with the name of the kind and variety or a statement of type and performance characteristics as prescribed by the Department of Agriculture. This provision shall be complied with as follows:
(1) For seeds of plants grown primarily for their blooms:
(i) If the seeds are of a single named variety, the kind and variety shall be stated, such as: ''Marigold Butterball.''
(ii) If the seeds are of a single type and color for which there is no specific variety name, the type of plant, if significant, and the type and color of bloom shall be indicated, such as: ''Scabiosa Tall, Large-Flowered, Double, Pink.''
(iii) If the seeds consist of an assortment or mixture of colors or varieties of a single kind, the kind name, the type of plant, if significant, and the type or types of bloom shall be indicated. It shall be clearly indicated that the seed is mixed or assorted, such as: ''Marigold, Dwarf Double French, Mixed Colors.''
(iv) If the seeds consist of an assortment or mixture of kinds and varieties, it shall be clearly indicated that the seed is assorted or mixed and specific use of the assortment or mixture shall be indicated, such as: ''Cut Flower Mixture,'' or ''Rock Garden Mixture.'' Statements such as ''General Purpose Mixture,'' ''Wonder Mixture'' or another statement which fails to indicate the specific use of the seed may not be considered as meeting the requirements of this section unless the specific use of the mixture is also stated. Containers over 3 grams shall list the kind or kind and variety names in excess of 5.0% in the order of their predominance giving the percentage by weight of each. Components of less than 5.0% shall be listed but need not be in order of predominance. A single percentage by weight shall be given for these components. Containers of 3 grams or less shall list the components without giving percentage by weight and need not be in order of predominance.
(v) Flower seed mixtures shall be considered misleading if the kinds or kinds and varieties found by analysis differs by 20% or more of those listed on the label.
(2) For seeds of plants grown for ornamental purposes other than their blooms, the kind and variety shall be stated or the kind shall be stated together with a descriptive statement concerning the ornamental part of the plant, such as: ''Ornamental Gourds,'' ''Small Fruited,'' ''Mixed.''
(3) It is permissible to label vegetable and flower seed kinds in containers of 1 pound or less with the statement: ''Packed for (YY)'' and ''Sell by (12/YY)'' and an identifying lot number for the calendar year in which they are being offered for sale.
§ 111.13. Labeling of lawn or turf grasses and mixtures.
(a) It is permissible to label cool season lawn and turf grass mixtures that include less than 5% white or ladino clover with a ''Sell By Date'' and 15 month germination period not including the month of test.
(b) Unless otherwise stated as to use, all those kinds listed under cool season lawn and turf grasses and their mixes must have a ''Sell by MM/YY'' which may be no more than 15 months from the date of test, exclusive of month of test. Those labeled as: ''For Forage Use'' or ''For Pasture Use'' or ''For Conservation Use'' or some type of qualifying statement indicating that the mixture is not for lawn or turf purposes will require a 9 month date of test not including the month of test and no ''Sell By MM/YY'' is required.
§ 111.15. (Reserved).
§ 111.16. Responsibility for labeling.
(a) The person or dealer upon whose premises seeds are located and are exposed or offered for sale shall be responsible for labeling of the seeds.
(b) The person or dealer shall also be responsible for procuring a new germination test and subsequently attaching new analysis tags before the expiration date of the required 9-month period or 15 months for cool season lawn and turf grasses as provided in 3 Pa.C.S. § 7104 (relating to labels and labeling). Tests shall be made according to the Rules for Testing Seed published by the Association of Official Seed Analysts, and no test may be considered official unless the rules are followed.
§ 111.17. Labeling of seeds for sprouting.
The following information shall be indicated on labels of seeds sold for sprouting for salad or culinary purposes (otherwise known as health food):
(1) Commonly accepted name of kind, or kinds.
(2) Lot number.
(3) Percentage by weight of a pure seed component in excess of 5.0% of the whole, other crop seed, inert matter and weed seeds if occurring.
(4) Percentage of germination of a pure seed component and hard seed if applicable.
(5) The calendar month and year the test was completed to determine the percentages.
§ 111.21. (Reserved).
§ 111.22. Prohibited noxious weed seeds.
It shall be unlawful to sell or offer for sale seeds that contain the following prohibited weed seeds:
(1) Bindweed, field (Convolvulus arvensis).
(2) Bindweed, hedge (Calystegia sepium).
(3) Quackgrass (Elytrigia repens).
(4) Canada thistle (Cirsium arvense).
(5) Multiflora rose (Rosa multiflora).
(6) Johnsongrass (Sorghum halepense), its crosses with other grasses which produce seed which are not readily distinguishable from Johnsongrass.
(7) Shattercane (Sorghum bicolor).
(8) Marijuana (Cannabis sativa).
(9) Mile-a-minute (Polygonum perfoliatum).
(10) Kudzu-vine (Pueraria lobata).
(11) Purple Loosestrife and cultivars (Lythrum salicaria).
(12) Giant Hogweed (Heracleum mantegazzianum).
(13) Goatsrue (Galega officinalis).
(14) Jimsonweed (Datura stramonium).
§ 111.23. Restricted noxious weed seeds.
(a) The presence of restricted noxious weed seeds in agricultural, vegetable and flower seed, other than lawn and turf grasses, and mixtures thereof listed in subsection (b)(1) shall be governed by the following:
(1) List. The seeds of the following plants shall be restricted noxious weed seeds and shall be listed on the tag or label under the heading ''Noxious Weed Seeds'' by name and number per pound:
(i) Bedstraw (Galium spp.).
(ii) Buckhorn plantain (Plantago lanceolata).
(iii) Corncockle (Agrostemma githago).
(iv) Dodder (Cuscuta spp.).
(v) Horsenettle (Solanium carolinense).
(vi) Perennial sow thistle (Sonchus arvensis).
(vii) Wild garlic (Allium vineale).
(viii) Wild onion (Allium canadense).
(ix) Wild mustard (Brassica juncea, B. Kaber, and B. nigra).
(x) Bull Thistle (Cirsium vulgare).
(xi) Musk Thistle (Carduus nutans).
(2) Other states. Seeds designated as noxious weed seeds in other states shall be listed under the heading ''Noxious Weed Seeds'' if included on the tag or label.
(3) Rate of occurrence in small size seeds. The seeds of Agrostis spp., Bermuda grass, timothy, orchardgrass, fescues, alsike and white clover, Reed canary grass, ryegrass, foxtail millet, alfalfa, red clover, sweet clovers, lespedezas, smooth brome, tall oat grass, crimson clover, Brassica spp., flax, Agropyron spp., and other agricultural, vegetable and flower seeds of similar size and weight or mixtures thereof shall not contain more than one seed or bulblet, single or collectively, of restricted noxious weed seeds per 5 grams of seed-equivalent to 90 weed seeds per pound-except that not more than five seeds of buckhorn plantain per 5 grams of agricultural seed may be permitted equivalent to 450 weed seeds per pound.
(4) Rate of occurrence in large size seeds. The seeds of wheat, Sudan grass, oats, rye, barley, buckwheat, sorghums, vetches and other agricultural, vegetable and flower seeds of similar or greater size and weight or mixtures thereof may not contain more than one seed of restricted noxious weed seeds per 100 grams of seed-equivalent to five seeds per pound-except that not more than five seeds of buckhorn plantain per 100 grams of agricultural seeds may be permitted-equivalent to 25 weed seeds per pound, and seed wheat is not permitted to contain bulblets of wild garlic or wild onion-equivalent to zero bulblets per pound.
(b) The presence of restricted noxious weed seeds in lawn and turf grasses and mixtures thereof shall be governed by the following:
(1) Except as provided in paragraph (3), the seeds of the following plants shall be restricted noxious weed seeds and shall be listed on the tag or label under the heading ''Undesirable Grass Seeds'' or ''Restricted Noxious Weed Seeds'' by name and number per pound when present in bentgrass, Kentucky bluegrass, chewings fescue, hard fescue, red fescue, varieties of named turf type tall fescue, varieties of perennial ryegrass or mixtures containing these grasses:
(i) Bermudagrass. (Cynodon spp.).
(ii) Annual bluegrass. (Poa annua).
(iii) Rough bluegrass. (Poa trivialis).
(iv) Bentgrass (creeping, colonial, velvet), (Agrostis spp.).
(v) Meadow fescue (Festuca pratensis).
(vi) Tall fescue (Festuca arundinaceae).
(vii) Orchardgrass (Dactylis glomerata).
(viii) Timothy (Phleum pratense).
(ix) Velvetgrass (Holucs lanatus).
(x) Redtop (Agrostis gigantea).
(2) Restricted noxious weed seeds set forth in paragraph (1) may not exceed 0.50% by weight.
(3) The restricted noxious weed seeds set forth in paragraph (1) may not apply:
(i) To grasses or mixtures clearly labeled for pasture, forage, hay, conservation or spoil bank reclamation usages.
(ii) When the seeds are present in excess of 5.0% of the whole and the label contains the information required by § 111.13(a)(1) (relating to labeling of lawn or turf grasses and mixtures).
§ 111.41. Stop sale procedures.
(a) The owner or custodian of any lot of seeds held under ''stop sale'' shall be allowed 90 days to correct deficiencies so that the lot conforms to the requirements of this chapter and 3 Pa.C.S. Chapter 71 (relating to the Seed Act).
(b) If subsection (a) has not been complied with, the seed shall be condemned as unfit for seeding purposes, unless the owner or custodian can show cause why the seed should not be condemned.
(c) Seed under a ''stop sale'' may not be moved from the premises of the owner or custodian without written release from the inspector.
(d) When requirements of subsection (a) have been met, a copy of the corrected label shall be sent to the address specified by the seed inspector for a written release.
(e) The provisions in 3 Pa.C.S. § 7113 (relating to stop-sale orders) containing further requirements for ''stop sale'' notice, shall be followed.
[Pa.B. Doc. No. 09-923. Filed for public inspection May 22, 2009, 9:00 a.m.]
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