RULES AND REGULATIONS
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 113]
General Provisions for Seed Certification
[39 Pa.B. 2584]
[Saturday, May 23, 2009]The Department of Agriculture (Department) amends Chapter 113 (relating to general provisions for seed certification) to read as set forth in Annex A.
Statutory Authority
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 113. 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 institute regulations which are consistent with the provisions of the act, the Department is amending Chapter 113.
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 are 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. In addition, changes in the regulation are proposed to conform to changes in the Federal Seed Act and Regulations Part 201.67--201.78, the Crop Standards and Procedures of the Association of Official Seed Certifying Agencies (AOSCA), and the new USDA State National Harmonization Program For Seed Potatoes.
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 certified seed. These regulations ensure that certified seed that farmers are purchasing and planting are true to their identity and meet established standards. Farmers and seed distributors buying, planting and selling certified seed will benefit from these regulations which will ensure good quality, clean seed with integrity of variety.
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 and set forth its approval and support of the proposed rulemakings to the regulations at Chapter 113. The Department sent a letter to PennAg Industry informing it of the right to receive a copy of the final-form rulemaking. 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 regulation 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 rulemaking, 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 hardcopy of the Annex A or Preamble may call Joe Garvey in the Department of Agriculture, Bureau of Plant Industry at (717) 787-4894.
Comment
PennAg Industries Association (PennAg) submitted a comment letter for these regulations in which PennAg expressed its support of the proposed rulemakings. Penn Ag 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 rulemaking 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 rulemaking would allow Pennsylvania's seed industry to remain part of the competitive seed market.
Response
The Department acknowledged PennAg's comment in writing. The Department appreciates PennAg's support of the regulations. No changes were made to the proposed rulemaking.
Fiscal Impact
Commonwealth
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.
Political Subdivisions
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.
Private Sector
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.
General Public
The final-form regulations will impose no direct costs and have no fiscal impact on the general public. Farmers and seed distributors buying, planting and selling certified seed will benefit from these rulemakings which will insure good quality, clean seed with integrity of variety, as well as, consistency with the requirements of the act and the Federal Seed Act and Regulations Part 201.67--201.78, the Crop Standards and Procedures of the AOSCA, and the new USDA State National Harmonization Program for Seed Potatoes.
Paperwork Requirements
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.
Effective Date
Compliance with the rulemaking is required 30 days after publication of the regulations.
Additional Information
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.
Regulatory Review
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 (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 IRRC 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 regulations were deemed approved by the Committees on April 1, 2009. Under section 5(g) of the Regulatory Review Act, the final-form rulemakings were deemed approved by IRRC effective April 1, 2009.
Findings
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 these regulations 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 these regulations in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under the authorizing statute, orders the following:
(1) The regulations of the Department, 7 Pa. Code Chapter 113, are amended by amending §§ 113.1, 113.3, 113.4, 113.22, 113.26, 113.34, 113.42--113.44, 113.51 and 113.53; by adding § 113.6; and by deleting § 113.23 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,
Secretary(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 2-157 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 7. AGRICULTURE
PART V. BUREAU OF PLANT INDUSTRY
CHAPTER 113. GENERAL PROVISIONS FOR SEED CERTIFICATION
PRELIMINARY PROVISIONS § 113.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Applicant--An individual, partnership, association, cooperative or corporation applying for certification of a seed crop under this chapter.
Breeder class seed--Seed which is directly controlled by the originating or sponsoring plant breeder or institution, and which provides the source for the initial and recurring increase of Foundation seed.
Certification office--A unit of the Bureau of Plant Industry authorized by the Department to act as its representative in carrying out this chapter.
Certified--Seed classes, including Prenuclear seed potato, Breeder, Foundation, Registered and Certified which meet the required standard of quality.
Certified class seed--Seed which is the progeny of Foundation or Registered seed and is handled so that satisfactory genetic identity and purity for growing the desired product is maintained.
Conditioner--A processor or handler of seed after harvest.
Department--The Department of Agriculture of the Commonwealth.
Field--An individual area of land for the crop under inspection, which is clearly defined by distinct lines of demarcation, such as fences, roads, natural barriers, other crops, mowed or an uncropped area. A field is the basic unit of certification.
Foundation class seed--Seed which is the progeny of Breeder seed and is handled so that specific genetic identity and purity as designated by the originating or sponsoring plant breeder or experiment station is maintained. Foundation seed may be used to produce Foundation seed only with the approval of the originating or sponsoring plant breeder or experiment station.
Grower--The person directly involved in growing or cultivating the seed crop entered into the certification program.
Inbred line--A relatively true-breeding strain resulting from at least five successive generations of controlled self-fertilization or of back-crossing to a recurrent parent with selection, or its equivalent, for specific characteristics.
Norm--The official description of the characteristics of a variety.
Off-type--A plant which can be identified as not conforming to the official norm of a variety.
Open-pollination--Pollination that occurs naturally as opposed to controlled pollination, such as by detasseling, cytoplasmic male sterility, self-incompatibility or similar processes.
Prenuclear seed potato--Potato plants or potato tubers which are:
(i) Produced in a laboratory or greenhouse.
(ii) Propagated directly from tissue culture-grown plant material.
Registered class seed--Seed which is the progeny of Foundation seed and is handled so that genetic identity and purity suitable for the production of certified seed is maintained.
Rogue--An undesirable plant in a crop such as, off-type, other kind, other variety or weed.
Seed Act--3 Pa.C.S. Chapter 71 (relating to the Seed Act).
Seed lot or lot of seed--A definite quantity of seed identified by a lot number or other identification mark or label. With respect to Prenuclear seed potatoes, the term consists of plants derived from a single disease and variety-tested source and grown in a laboratory, or on one greenhouse bench or on some other discrete physical unit within a greenhouse to exclude mixing of soil, water or plant tissues between lots.
Tissue culture--The axenic growth of plant tissues in a synthetic medium under controlled environmental conditions.
§ 113.3. Responsibility and applicability.
(a) The Department will act as the official seed certifying agency in this Commonwealth.
(b) In conducting the seed certification program, the Department and the Bureau of Plant Industry will cooperate with the Pennsylvania State University, College of Agriculture, Pennsylvania Foundation Seed Coop., the Seed Council of PennAg Industries Association and seed growers.
(c) This chapter applies to crops eligible for certification and constitutes the minimum seed certification requirements of the Department.
(d) In cases where there are no crop standards in this Commonwealth, the standards being used by a member of the Association of Official Seed Certifying Agencies will be used.
§ 113.4. Classes and sources of seed.
The following classes of seed are recognized for seed certification:
(1) Prenuclear seed potato class.
(2) Breeder class.
(3) Foundation class.
(4) Registered class.
(5) Certified class.
(6) Foundation G1-Foundation G7 seed potato classes.
§ 113.6. Limitations of generations for certified seed.
The number of generations through which a variety may be multiplied shall be limited to that specified by the originating breeder or owner and may not exceed two generations beyond the Foundation seed class with the following exceptions which may be made with the permission of the originating plant breeder, institution or a designee:
(1) Recertification of the Certified class may be permitted when no foundation seed is being maintained.
(2) The production of an additional generation of the Certified class may be permitted on a 1-year basis only when an emergency is declared by any official seed certifying agency stating that the Foundation and Registered seed supplies are not adequate to plant the needed Certified acreage of the variety. The additional generation of Certified seed to meet the emergency need is ineligible for recertification.
APPLICATIONS § 113.22. Completion of application.
(a) General requirements. In completing the application for inspection and certification of a seed crop other than Prenuclear seed potatoes, an identification tag or label which was attached to the containers of the planted seed, bills of sale or other documentary evidence showing class and source of the seed planted shall be included. This is required whether the grower purchases eligible planting seed from another person or uses eligible seed of his own production.
(b) Maintaining genetic purity and identity. An applicant is responsible for maintaining genetic purity and identity of the crop at all stages of certification including seeding, harvesting, conditioning and labeling.
(c) Field maps. Applications shall be accompanied by maps showing the location of the fields and the boundaries of the crop to be inspected.
(d) Requirements for Prenuclear seed potato certification. An applicant for certification of Prenuclear seed potatoes shall file the following:
(1) Written propagation records, procedural manuals, verified statements or other evidence or documentation sufficient to verify that the potato plants or tubers have been propagated from tissue culture-grown plant material.
(2) Laboratory reports, test results, statements of varietal characteristics, verified statements or other evidence or documentation sufficient to verify that the tissue culture-grown plant material used in the propagation of seed potatoes has been tested annually for trueness-to-variety.
(3) Laboratory reports, test results, verified statements or other evidence or documentation sufficient to verify that the tissue culture-grown plant material used in the propagation of the seed potatoes has been tested annually for freedom from Erwinia caratovora pv. caratovora, Erwinia caratovora pv. atroseptica, Clavibacter michiganense subsp. sepedonicum (synonym: Coryne- bacterium sepedonicum), potato spindle tuber viroid, potato leafroll virus and potato viruses A, M, S, X and Y.
§ 113.23. (Reserved).
§ 113.26. Fees.
The applicant shall be responsible for the payment of fees as outlined in the Seed Act.
INSPECTIONS § 113.34. Reinspection.
A crop not meeting the appropriate field, greenhouse or laboratory inspection requirements in certain respects at the time of the initial inspection may be reinspected in accordance with the following:
(1) A grower desiring reinspection shall make a request to the inspector or the Certification Office.
(2) There is no guarantee that a second inspection will be made.
(3) If the reinspection is made, the grower may be charged at a rate double that ordinarily charged, depending upon the circumstances involved and the recommendation of the inspector.
CONTAINERS, LABELS AND TAGS § 113.42. Color code for tags.
(a) Agricultural seed.
(1) White tags shall designate the Foundation class of seed.
(2) Lilac tags shall designate the Registered class of seed.
(3) Blue tags shall designate the Certified class of seed.
(4) Green tags shall designate the Quality Assurance class of seed.
(b) Seed potatoes.
(1) White tags shall designate the Prenuclear class of seed potatoes.
(2) Blue tags shall designate the Foundation class of seed potatoes.
(3) Green tags shall designate the Certified class of seed potatoes.
(c) Tree seed.
(1) Green tags shall designate the Selected class of tree seed.
(2) Yellow tags shall designate the Source Identified class of tree seed.
§ 113.43. Two-tag system.
(a) The two-tag system shall be used in this Commonwealth.
(b) Prenuclear seed potato, Foundation, Registered and Certified tags supplied by the Department imply that the lot of seed so tagged has met the requirements for the seed class for which it was intended. These tags shall indicate seed kind and variety, other identification or other information designated by the certification office.
(c) Second, or analysis, tags shall be supplied by the grower and contain information such as variety, lot number, purity percentage, germination percentage, date of test and other information as required by the Seed Act.
§ 113.44. Attachment of tags and labels.
(a) Official certification tags and labels may be purchased from the certification office and affixed to seed containers by the applicant or a representative of the Department.
(b) Tags may be sewn into the top of the bag so that all information is visible.
(c) Pressure sensitive labels may be applied near the top front of the bag.
(d) Staples may be used with prior approval.
(e) Tags and labels shall be attached in a manner which will prevent obvious removal and reattachment.
GENERAL REQUIREMENTS § 113.51. Handling and blending of seed--conditioner's responsibilities.
(a) Prenuclear seed potato, Foundation, Registered and Certified classes of seed shall be handled to maintain the varietal purity and lot identification.
(b) Seeding equipment, grain boxes, bins, elevating, harvesting and cleaning equipment used in handling seed shall be thoroughly cleaned before handling any variety or class of seed.
(c) The following apply to the blending of seeds:
(1) Two or more lots of seed harvested from fields of the same variety may be blended provided field inspection requirements have been met.
(2) If the blend involves more than one seed class, the requirements for the certified class shall be applied.
(3) Blends and contents shall be reported to the certification office.
(d) Records of operations relating to certification shall be complete and adequate to account for incoming seed and final disposition of seed.
(e) Conditioners shall permit inspection by the certification office of records pertaining to all classes of certified seed.
(f) Conditioners shall designate an individual who is responsible to the Certification Office for performing the duties required by the office. In the absence of any other designated individual, the applicant shall be the responsible individual.
§ 113.53. Seed testing.
(a) A representative sample of the entire lot of seed, as it is to be offered for sale, will be drawn by a representative of the certification office and sent to the Department Seed Laboratory.
(b) Seed samples will be drawn, tested and analyzed in accordance with Chapter 111 (relating to seed testing, labeling and standards). The applicant will be charged the fee established in the Seed Act for the tests. In the event of unforeseen problems, samples may be sent to another laboratory approved by the Department.
(c) A copy of the analysis report will be sent to the seedsman and may be used for labeling purposes. If seed standards have been met, the report will also indicate final certification approval. Samples not meeting seed standards shall be reconditioned, after which another official sample will be drawn and the appropriate fee charged.
[Pa.B. Doc. No. 09-925. Filed for public inspection May 22, 2009, 9:00 a.m.]
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