Authorized By:  State Board of Agriculture and Charles M. Kuperus, Secretary of Agriculture

Authority:  N.J.S.A. 4:1-11.1 and 4:8-17.13 et seq., specifically 4:8-17.23 and 17.24

Calendar Reference:  See Summary below for explanation of exception to calendar requirement

Proposal Number:  PRN 2006-207.

Submit written comments by September 1, 2006  to:

Carl P. Schulze, Jr., Director
Division of Plant Industry
NJ Department of Agriculture
P.O. Box 330
Trenton, New Jersey 08625‑0330

The agency proposal follows:

Summary

            Pursuant to N.J.S.A. 52:14B-5.1c, N.J.A.C. 2:21 expires on January 2, 2007..  The Department of Agriculture has reviewed the rules and has determined them to be necessary, reasonable and proper for the purpose for which they were originally promulgated.

            The purpose of the rules proposed for readoption is to facilitate the orderly marketing and sale of seed by providing the seed user with necessary and uniform information for buying seed.  The following issues are addressed in these rules:  labeling requirements for treated seed, untreated seed and hermetically sealed seed; seed testing methods; identification and regulation of noxious weed seeds found in all types of seed sold for planting purposes; minimum germination standards for vegetable and flower seed; and seed testing fees.

            Subchapter 1 describes how seed is to be labeled to assure it is done in a uniform manner as to kind and variety name, and that comparable information is available for each lot.  The subchapter lists labeling requirements for seed distributed to wholesale seedsmen, combination seed and products, and pre-planted containers, mats, tapes, coated seed and other devices.  This subchapter also provides for relabeling seed in original containers.

            Subchapter 2 identifies the methods used in testing seed to determine whether it is in compliance with the New Jersey State Seed Law, N.J.S.A. 4:8-17.13 et seq.  Those methods are standardized and are prescribed by the Association of Official Seed Analysts in their “Rules for Testing Seed.”

            Subchapter 3 specifies the labeling requirements for treated seed.  Seeds treated with a pesticide must be labeled with the appropriate signal word as is required on the pesticide label and must bear the caution statement, “Do not use for food or oil purposes.”  Seed treated with an inoculant must be labeled to show the inoculant and the expiration of the inoculant’s effectiveness.  Seed treated with other materials or processes must be labeled to reflect the name, date, and purpose of the treatment or process; if the material or process is harmful to humans or vertebrate animals, it must be labeled as such.

            Subchapter 4 establishes lists of plants which have been found to be detrimental or difficult to control in farm fields, gardens, and lawns.  Seeds of these plants are divided into two categories – prohibited noxious weed seeds and restricted noxious weed seeds.  No prohibited noxious weed seeds will be allowed in agricultural, vegetable, flower, tree, shrub, or lawn and turf seed.  Restricted noxious weed seeds must be identified by number and name on the label; amounts exceeding the labeled number will be considered in violation of the law.  The rules identify 10 species of seeds that are considered to be restricted noxious weeds when occurring in lawn and turf seed and mixtures.  These 10 species are not considered restricted noxious weeds when occurring in pasture, forage, hay, conservation, or soil bank reclamation usage mixtures.

            Subchapter 5 establishes germination standards for different kinds of vegetable seed.  Labelers may use the words “Packed for (calendar year)” in lieu of germination percentages when germination rates meet or exceed the listed standards.  Germination rates of vegetable seed which are less than two-thirds of the established standard shall be considered unfit for planting.  Below standard rates that exceed two-thirds of the standard shall be considered fit for planting only if the label indicates the words “below standard.”  The rules establish a standard of 50 percent germination for any vegetable or herb not listed.

            Subchapter 6 establishes germination standards for different kinds of flower seed.  Labelers may use the words “Packed for (calendar year)” in lieu of germination percentages when germination rates meet or exceed the listed standards.  Germination rates of flower seed which are less than two-thirds of the established standard shall be considered unfit for planting.  Below standard rates that exceed two-thirds of the standard shall be considered for planting only if the label indicates the words “below standard.”  The subchapter includes a list of kinds of flowers with standards and establishes a standard of 50 percent germination for any kind not listed.

            Subchapter 7 describes the fees to be charged for testing services performed by the New Jersey State Seed Laboratory.  New Jersey commercial producers of agricultural and horticultural products are permitted two free germination tests within a fiscal year.

            Subchapter 8 describes the procedures to be followed when samples are submitted to the laboratory for testing.  Official testing for regulatory purposes is given priority at all times, and permits little other work during the spring and summer months.  The rules allow the laboratory to reject samples submitted for testing if the time is not available.  The rules also specify the amount of seed needed for testing, the fact that the sample should be representative of the lot of seed, and the information to be supplied with the sample.  A noxious weed seed examination is conducted on all seed submitted for purity analysis, including lawn grasses.

            Subchapter 9 establishes standards for seeds packaged in containers labeled as hermetically sealed.  The subchapter sets standards for maximum percent moisture content of agricultural and vegetable seeds.

            Subchapter 10 provides the penalties for violations of this Chapter.  Penalties include a fine of not less than $500 nor more than $1,000 for the first offense and a fine of not less than $1,000 nor more than $5,000 for each subsequent offense.

The Department of Agriculture is proposing the readoption of N.J.A.C. 2:21 without amendments.  A 60-day comment period is provided for in this notice of proposed readoption; thus, in accordance with N.J.A.C. 1:30-3.3(a), this proposal is not subject to the provisions of N.J.A.C. 1:30-3.1 and 3.2 governing rulemaking calendars.

Social Impact

The rules proposed for readoption at N.J.A.C. 2:21 will affect all 140 plant seed wholesalers, seed conditioners and all 750 retail seed dealers who conduct business within New Jersey.  The social impact of the rules proposed for readoption will be of benefit to the plant growers, farmers and consumers who purchase seed for planting.  The quality of the plant seed and plant materials offered for sale in New Jersey under Department inspection programs will be enhanced, and the public will benefit directly from the higher degree of quality in plant and plant products, as well as farmers getting higher crop yields. 

Economic Impact

The primary purpose of N.J.S.A. 4:8-17.29 and N.J.A.C. 2:21 is to facilitate the orderly marketing of seed by assuring the seed user that the seed label fully and accurately describes the product.  The penalties for non-compliance with the requirements of the New Jersey Seed Law, as specified in these rules at N.J.A.C. 2:21-10.1, should only impact violators. The rules proposed for readoption will not present a hardship for any of the regulated entities operating lawfully.  Producers should receive a positive economic benefit as the rules proposed for readoption will ensure higher quality plants and plant products and will result in higher crop yields.  Although there is a fee for seed testing, all New Jersey residents actively engaged in commercial production of agricultural or horticultural products are entitled to two free germination tests per fiscal year.  Thus, the economic impact on producers to ensure compliance is likely to be minimal, and any cost to the seed purchaser will be more than offset by higher seed quality, fewer weed problems and higher crop yields.

Federal Standards Statement

The Federal Seed Act, 7 U.S.C. §§1551 et seq. and the Federal Seed Act Regulations, 7 CFR §§201.1 et seq., establish minimum standards and procedures as conditions for interstate movement of seed, general regulations, and testing regulations.  In order to regulate the orderly marketing and sale of seed for purposes of the Federal Seed Act, an agency, such as the New Jersey Department of Agriculture, must enforce standards and procedures, as conditions that meet the standards and procedures specified in the Federal Seed Act Regulations.  The standards established in N.J.A.C. 2:21 meet but do not exceed the Federal regulations, and are the same standards recommended by the Association of Official Seed Analysts (AOSA).  That organization is composed of 42 states and 55 laboratories dedicated to promoting uniform laboratory methods and practices, developing uniform techniques, and a general appreciation of the benefits of seed testing to farmers and seedsmen.  Therefore, a Federal standards analysis is not required. 

Jobs Impact Statement

The rules proposed for readoption are not expected to result in the generation or loss of jobs in the State.

Agriculture Industry Impact

The rules proposed for readoption should have a positive impact on New Jersey’s agricultural industry.  The rules will afford more protection to farmers and other seed users by assuring that the seed label fully and accurately describes the product.  In addition, the rules proposed for readoption set minimum standards for seed production to minimize the possibility of crop loss or reduced crop yield due to planting seed with low germination, mislabeled as to variety, or that contains weed seeds which producers have found to be difficult to control in farm fields, gardens and lawns.  If such seed products are found to contain prohibited or restricted noxious weeds not listed on the label, they will be ordered off the market in accordance with N.J.S.A. 4:8-17.26, thus benefiting both the producer and other consumers.  The penalty structure for non-compliance with the requirements of the New Jersey Seed Law should discourage any business from willfully offering for sale any seed not in compliance with the rules proposed for readoption.

Regulatory Flexibility Analysis

The rules proposed for readoption primarily affect the 140 plant seed conditioners and 750 retail dealers in New Jersey, and many of them are considered small businesses as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq.  The rules proposed for readoption do not impose any reporting or recordkeeping requirements on small businesses.  They do, however, impose uniform compliance requirements, levels of product performance and fees that will have an impact upon small businesses.  No professional services are likely to be needed to comply with these rules.  The costs of compliance, which are related to labor and material costs for procedures used in the production and marketing of seed, will vary according to the level of production.  The Department believes that the rules establish standards and requirements for the orderly marketing and sale of seed, which will benefit small businesses by having the same label requirements as surrounding states, while at the same time protecting the seed user with necessary and uniform information for buying seed.  Small businesses need not bear any additional special measures or costs for compliance when marketing seed products in nearby states.  Because the requirements are necessary to assure the production of healthy crops and plant stock, the Department has made no differentiation in these rules based on business size.

Smart Growth Impact

The Department does not anticipate that the rules proposed for readoption will have any impact on the achievement of smart growth or the implementation of the State Development and Redevelopment Plan.

Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 2:21.

_________________________________
Charles M. Kuperus

Secretary, New Jersey Department of Agriculture

September ___, 2006