PROPOSED RULEMAKING
[7 PA. CODE CH. 111]
Seed Testing, Labeling and Standards
[38 Pa.B. 2256]
[Saturday, May 17, 2008]The Department of Agriculture (Department), under the authority of 3 Pa.C.S. Chapter 71 (relating to 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) proposes to amend Chapter 111 (relating to seed testing, labeling and standards). This 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. Therefore, consistent with that authority and to establish regulations which are consistent with the provisions of the act, the Department hereby proposes the following amendments to Chapter 111.
Background
The proposed amendments are made necessary by and are established under the authority of, and in accordance with, the act.
The major features and amendments of the proposal are summarized as follows:
Summary of Major Features and Amendments § 111.1. Sampling and testing of seeds.
The Department proposes to delete the part of the language of the last sentence of this section related to receiving a copy of the rules which states, ''A copy of the rules may be obtained from the current Secretary-Treasurer of the association (AOSA), or from: Botany and Seed Division, Bureau of Plant Industry, Department of Agriculture, 2301 North Cameron Street, Harrisburg, PA 17110, at cost. The proposal would delete the final portion of that sentence, starting with ''or from . . .''
§ 111.2. Condition of seeds for testing.
The Department proposes to delete parts of subsection (a) related to nontesting of seed samples of any kind and add language to deny testing of mixed seeds ''when the percentage of analysis is not provided.''
§ 111.3. Fees and schedule of charges.
The Department amended subsection (a) to allow for billing of the testing fee and amended subsection (b) in a manner that will no longer allow for cash payment of the fees. A minor and a major amendment were made to subsection (c). First, the word ''all'' was removed because it is implied and therefore redundant. Second, the Department deleted the chart containing the cost of purity analysis, germination testing and combined testing because that chart and those fees now appear in section 7109(b)(5) of the act (relating to unlawful seed sales).
§ 111.4. Prohibitions and requirements.
The Department deleted subsection (c), which referred to the pricing table that was deleted from § 111.3.
§ 111.11. General labeling requirements.
In subsection (a), the Department deleted old citations to the act and replaced them with the proper citations to the new act. In subsection (a)(1), language was added to clarify the names ''and classification'' used shall be consistent with the Rules for Seed Testing by the Association of Official Seed Analysts.
§ 111.12. Labeling of flower seeds.
The Department deleted old citations to the act and replaced them with the proper citations to the new act. In addition, the Department added paragraph (3). The new paragraph clarifies labeling requirements for vegetable and flower seeds.
§ 111.13. Labeling of lawn or turf grasses and mixtures.
The Department deleted subsections (a) and (b) and replaced them with language consistent with the provisions of the act related to lawn and turf grasses. See section 7104(b)(2) of the act (relating to labels and labeling).
§ 111.15. Misleading labeling.
The Department rescinded this section because the issues addressed (related to the labeling of lawn and turf grasses and mixtures) are now covered by the act and the revisions to § 111.13.
§ 111.16. Responsibility for labeling.
The Department amended the substantive provisions of the section to assure the citations to the act are correct and to add a provision relating to the expiration time period for lawn and turf grass analysis.
§ 111.17. Labeling of seeds for sprouting.
The Department amended the substantive provisions of the section to clarify what salad and culinary purposes are and to address hard seed germination when applicable.
§ 111.21. Weed seeds classified.
The Department rescinded this section classifying and regulating weed seeds. Seed classifications are covered by the AOSA's Rules for Testing Seed included in § 111.11(a).
§ 111.22. Prohibited noxious weed seeds.
The Department amended this section by adding additional species to the list of prohibited noxious weed seeds.
§ 111.23. Restricted noxious weed seeds.
The Department amended subsection (a)(1) by adding additional species to the list of noxious weed seeds and added canary grass to subsection (a)(3). In addition, the Department amended subsection (b)(1) to include a reference to ''Restricted Noxious Weed Seeds.''
§ 111.41. Stop sale procedures.
The Department amended the citations in this provision to assure they were consistent with the act.
Fiscal Impact
Commonwealth
The proposed amendments will not impose additional fiscal impacts upon the Commonwealth for administration and enforcement. The amendments will not require the Department to commit an additional amount of time or manpower to the enforcement of the provisions of the act or regulations.
Political Subdivisions
The proposed amendments will impose no additional costs and have no fiscal impact upon political subdivisions. The amendments do not impose any additional burden of enforcement or review on political subdivisions.
Private Sector
The proposed amendments will not impose additional costs on the regulated community, which is part of the private sector or any other part of the private sector. Any additional fees are set forth in the act and merely referenced in the regulations. There are no new certification or licensure requirements and any new labeling requirements are merely consistent with the act and will not impose additional costs on the regulated community.
General Public
The proposed amendments will impose no costs and have no fiscal impact on the general public.
Paperwork Requirements
The proposed amendments will not result in a substantial increase of paperwork.
Public Comment Period
Interested persons are invited to submit written comments regarding the proposed amendments within 30 days following publication in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of these proposed amendments on May 2, 2008, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Agriculture and Rural Affairs Committee and the Senate Agriculture and Rural Affairs Committee (Committees). In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form. A copy of this material is available to the public upon request.
If IRRC has any objections to any portion of the proposed amendments, it will notify the Department within 30 days after the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final-form publication of the regulations, by the Department, the General Assembly and the Governor of objections raised.
Contact Person
Further information is available by contacting the Department of Agriculture, Bureau of Plant Industry, 2301 North Cameron Street, Harrisburg, PA 17110-9408; Attention: Joe Garvey, (717) 787-4843.
Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
DENNIS WOLFF,
SecretaryFiscal Note: 2-156. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 7. AGRICULTURE
PART V. BUREAU OF PLANT INDUSTRY
CHAPTER 111. SEED TESTING, LABELING AND STANDARDS
GENERAL PROVISIONS § 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 [of the association (] AOSA[), or from: Botany and Seed Division; Bureau of Plant Industry; Department of Agriculture; 2301 North Cameron Street; Harris- burg, Pennsylvania 17110, at cost] or at www. aosaseed.com.
§ 111.2. Condition of seeds for testing.
(a) Dirty or uncleaned seeds[,] and mixed seed [samples or samples sent by nonresidents of this Commonwealth] kinds when a percentage of analysis is not provided will not be tested.
* * * * * § 111.3. Fees and schedule of charges.
(a) The testing fee shall accompany the sample [and no test shall be made until the fee is paid.] 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 [through the mails but is accepted in the laboratory].
(c) A Pennsylvania Noxious Weed Seed Examination shall be included with [all] purity analyses.
Kind of Seed [Purity Analysis (including Pennsylvania State Noxious Weed Seed Examination) Germination
Test
Combined
Purity
Analysis and
Germination
TestAlfalfa $ 7.00 $5.50 $12 Barley 7.00 5.50 12 Beans, Garden 6.00 6.50 12 Beans, Lima 6.00 7.50 13 Bentgrass 14 8.00 21.50 Big bluestem 26 8.00 33.50 Birdsfoot trefoil 7.00 5.50 12 Bluegrass 15 8.00 22.50 Brome 10 7.50 17 Buckwheat 7.00 5.50 12 Clovers 7.00 5.50 12 Corn 5.00 6.50 11 Crownvetch 8.00 6.50 14 Deertongue grass 10 7.50 17 Fescues 10 7.50 17 Flatpea 6.00 7.50 13 Millets 8.50 6.50 14.50 Oats (including fluorescence test) 8.00 5.50 13 Orchardgrass 12 7.00 18.50 Peas 5.00 6.50 11 Redtop 14 8.00 21.50 Reed Canarygrass 9.00 6.50 15 Rye 7.00 5.50 12 Ryegrass 9.00 6.00 14.50 Ryegrass (including fluorescence test) 9.00 10.50 19 Sorghums 8.00 6.50 14 Soybeans 6.00 7.50 13 Sudangrass 8.00 6.50 14 Timothy 7.00 5.50 12 Tobacco 8.00 6.50 14 Vetch 8.00 6.50 14 Wheat 7.00 5.50 12 Flowers 8.00 6.50 14 Vegetables and Herbs, except beans, corn and peas 8.00 5.50 13 Tree, Forb and Shrub:
without embryo excision 8.00 9.00 16.50 with embryo excision 8.00 20 27 with embryo excision and removal of pits 8.00 22 29 Mixtures: Lawn and Turf:
Two components 22 16.00 36 Each additional component 8.00 8.00 15 Germination only 8.00 extra Pasture, hay and conservation:
Two components 12 14 25 Each additional component 5.00 7.00 11 Germination only 6.00 extra Miscellaneous charges:
Interstate Noxious Weed Examinations:
Lawn and turf, with purity 6.00 extra
Lawn and turf, without purity 20 All others, with purity 5.00 extra
Pennsylvania Noxious Weed Seed Examination: Lawn and Turf Grasses and Mixtures 15 All Others 4.00 Cold test 10 Varietal test 12 Moisture test 3.00 Tetrazolium test 12.50 Bio-assay for seed treatment 6.00 Phenol test:
Bluegrass, ryegrass 7.00 Cereals 6.00 Embryo excision test 15 Rush 4.00 Extra laboratory report 2.00 Tests not listed, special procedures, extra time, etc. 12 per hour]
§ 111.4. Prohibitions and requirements.
* * * * * (c) [During the months of February to May not more than five samples per firm or corporation shall be tested, unless the number of official law enforcement samples permit a larger number. No more than one of the five samples will be a mixture as provided for in § 111.3(c)(7) (relating to fees and schedule of charges).
(d)] 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.
[(e)] (d) Procedures for sampling are as follows:
* * * * *
LABELING § 111.11. General labeling requirements.
(a) In labeling the kind of agriculture, vegetable, flower, tree or shrub seeds as required in [section 3 of The Pennsylvania Seed Act of 1965 (3 P. S. § 285-3)] 3 Pa.C.S. § 7104 (relating to labels and labeling), of the following [shall] 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.
* * * * * (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'':
* * * * * § 111.12. Labeling of flower seeds.
[Section 3 of The Pennsylvania Seed Act of 1965 (3 P. S. § 285-3) requires] 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:
* * * * * (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) [In labeling lawn and turf seeds, the following information shall be provided:
(1) The commonly accepted name of the kind or kind and variety of each agricultural seed component in excess of 5.0% of the whole and the percentage by weight of pure seed in the order of its predominance. Where more than one component is required to be named, the word, ''mixture,'' or the word, ''mixed,'' shall be stated. Percentages of pure seed for mixtures shall be listed under the headings, ''Pure Seed.''
(2) The percentage by weight of all agricultural seed other than those required to be labeled.
(3) The percentage by weight of inert matter not to exceed 10%, except that 15% inert matter is permitted in Kentucky bluegrass labeled without a variety manner. Foreign material, other than material used for coating or pelleting to enhance the planting value, not common to grass seed may not be added.
(4) The percentage by weight of all weed seeds, not to exceed 1.0%.
(5) Noxious weed seeds shall be listed under the heading ''Noxious Weed Seeds'' or as otherwise specified.
(6) The percentage of germination, exclusive of hard seed; hard seed, if present, and the calendar month and year that the germination test was completed. If a single test date is used for mixtures, it shall be that of the oldest tested component.
(7) Percentages of germination for mixtures shall be listed under the headings, ''Germination'' or ''Germ.''
(b) In addition to this section, labeling of lawn and turf mixtures shall comply with the requirements of section 3 of The Pennsylvania Seed Act of 1965 (3 P. S. § 285-3).]
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. [Misleading labeling] (Reserved).
[(a) Notwithstanding § 111.13 (relating to labeling of lawn or turf grasses and mixtures) white clover may be claimed as a component of a mixture in quantities of 1.0% or more and redtop may be claimed as a component in mixtures, other than for lawn and turf, in quantities of 3.0% or more. The germination percentage of each shall be given.
(b) Other components of less than 5.0% shall be totaled and this sum listed as ''other crop seed.''
(c) Labeling not complying with this section may be considered as misleading.]
§ 111.16. Responsibility for labeling.
* * * * * (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 [nine] 9-month period or 15 months for cool season lawn and turf grasses as provided in [section 4 of The Pennsylvania Seed Act of 1965 (3 P. S. § 285-4)] 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):
* * * * * (4) Percentage of germination of a pure seed component and hard seed if applicable.
* * * * *
WEED SEEDS § 111.21. [Weed seeds classified] (Reserved).
[The following shall be classified as weed seeds in this Commonwealth and shall be labeled as such:
(1) Black medic (Medicago lupulina).
(2) Small hop clover (Trifolium dubium).
(3) Large hop clover (Trifolium procumbens).
(4) Carpet grass (Axonopus affinis).
(5) Annual bluegrass (Poa annua). When present in agricultural, vegetable and flower seeds other than those lawn and turf grasses and mixtures listed in § 111.23(b)(1) (relating to restricted noxious weed seeds).
(6) Bulbous bluegrass (Poa bulbosa)]
§ 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 [spp.] arvensis).
(2) Bindweed, hedge (Calystegia sepium).
(3) Quackgrass ([Agropyron]] Elytrigia repens).
[(3)](4) * * *
[(4)](5) * * *
[(5)](6) Johnsongrass (Sorghum halepense), its crosses with other grasses [and 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) [Presence] 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:
* * * * * (x) Bull Thistle (Cirsium vulgare).
(xi) Musk Thistle (Carduus nutans).
* * * * * (b) [Presence] 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:
* * * * *
MISCELLANEOUS PROVISIONS § 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 [The Pennsylvania Seed Act of 1965 (3 P. S. § 285-1-- 285-10)] 3 Pa.C.S. Chapter 71 (relating to the Seed Act).
* * * * * (e) [Section 2 (22) of The Pennsylvania Seed Act of 1965 ( 3 P. S. § 2852(22)) containing] The provisions in 3 Pa.C.S. § 7113 (relating to stop-sale orders) contain further requirements for ''stop sale'' notice, shall be followed.
[Pa.B. Doc. No. 08-920. Filed for public inspection May 16, 2008, 9:00 a.m.]
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