PRINTER'S NO. 474
No. 437 Session of 2001
INTRODUCED BY SEMMEL, BUNT, CAPPABIANCA, CALTAGIRONE, M. COHEN, J. EVANS, HENNESSEY, HERMAN, HERSHEY, HORSEY, LAUGHLIN, LEH, LYNCH, MAITLAND, PISTELLA, SAYLOR, SHANER, STEELMAN, J. TAYLOR, TRELLO, WILT, YOUNGBLOOD AND ZIMMERMAN, FEBRUARY 5, 2001
REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, FEBRUARY 5, 2001
AN ACT 1 Amending Title 3 (Agriculture) of the Pennsylvania Consolidated 2 Statutes, adding provisions relating to the labeling, sale 3 and distribution of fertilizer and of soil and plant 4 amendments; providing for the powers and duties of the 5 Department of Agriculture; establishing the Agronomic 6 Regulatory Account; prescribing penalties; and making a 7 repeal. 8 The General Assembly of the Commonwealth of Pennsylvania 9 hereby enacts as follows: 10 Section 1. Title 3 of the Pennsylvania Consolidated Statutes 11 is amended by adding chapters to read: 12 CHAPTER 67 13 FERTILIZER 14 Sec. 15 6701. Short title of chapter. 16 6702. Definitions. 17 6703. Licensing. 18 6704. Registration of specialty fertilizers.
1 6705. Labels and labeling. 2 6706. Inspection fees. 3 6707. Tonnage reports. 4 6708. Inspection, sampling and analysis. 5 6709. Plant food deficiency. 6 6710. Commercial value. 7 6711. Misbranding. 8 6712. Adulteration. 9 6713. Publications. 10 6714. Short weight. 11 6715. Refusal, suspension or revocation of registration or 12 license. 13 6716. Stop-sale orders. 14 6717. Seizure and condemnation. 15 6718. Appeal process. 16 6719. Cooperation with other entities. 17 6720. Rules and regulations. 18 6721. Unlawful conduct. 19 6722. Interference with officer or employee of department. 20 6723. Enforcement and penalties. 21 6724. Exchanges between manufacturers. 22 6725. Disposition of funds. 23 § 6701. Short title of chapter. 24 This chapter shall be known and may be cited as the 25 Fertilizer Act. 26 § 6702. Definitions. 27 The following words and phrases when used in this chapter 28 shall have the meanings given to them in this section unless the 29 context clearly indicates otherwise: 30 "Brand." A term, design or trademark used in connection with 20010H0437B0474 - 2 -
1 one or several grades of fertilizer. 2 "Bulk fertilizer." A fertilizer distributed in a nonpackaged 3 form. 4 "By-product." Municipal waste or residual waste as defined 5 in the act of July 7, 1980 (P.L.380, No.97), known as the Solid 6 Waste Management Act, that contains a plant nutrient and meets 7 all the applicable regulations of the Department of 8 Environmental Protection. 9 "Consumer." A person who purchases fertilizer for the end 10 use of the product. 11 "Deficiency." The amount of nutrient found by analysis to be 12 less than that guaranteed. 13 "Department." The Department of Agriculture of the 14 Commonwealth. 15 "Distribute." To import, consign, offer for sale, sell, 16 barter or otherwise supply fertilizer in this Commonwealth. 17 "Facility." Each separate mill or plant that manufactures 18 fertilizer. 19 "Fertilizer." Any substance, including fertilizer material, 20 mixed fertilizer, specialty fertilizer and bulk fertilizer, 21 containing one or more recognized plant nutrients which is used 22 for its plant nutrient content and which is designed for use or 23 claimed to have value in promoting plant growth, except 24 unmanipulated animal and vegetable manure, agricultural liming 25 materials, wood ashes and other materials exempted by regulation 26 by the Department of Agriculture. 27 "Fertilizer material." A fertilizer which: 28 (1) contains only one of the following primary plant 29 nutrients: nitrogen, phosphate or potash; 30 (2) has 85% or more of its plant nutrient content 20010H0437B0474 - 3 -
1 present in the form of a single chemical compound; or 2 (3) is derived from a plant or animal residue, by- 3 product, coproduct as defined in regulation or natural 4 material deposit which has been processed in such a way that 5 its content of plant nutrients has not been materially 6 changed except by purification and concentration. 7 "Grade." The percentage of total nitrogen, available 8 phosphate and soluble potash stated in whole numbers in the same 9 terms, order and percentages as in the guaranteed analysis, 10 except that, with respect to specialty fertilizers, fertilizer 11 materials, bone meal, manures and similar materials, the 12 guaranteed analysis may be stated in fractional units. 13 "Guaranteed analysis." The minimum percentage of plant 14 nutrients claimed in the following order and form: 15 Total nitrogen (N) % 16 Available phosphate (P2O5) % 17 Soluble potash (K2O) % 18 For other organic phosphatic materials, the total phosphate or 19 degree of fineness may also be guaranteed. Guarantees for plant 20 nutrients other than nitrogen, phosphorus and potassium may be 21 established by regulation. 22 "Guarantor." The person whose name and address appears on 23 the label of a fertilizer. 24 "Label." The display of all written, printed or graphic 25 matter upon the immediate container or a statement accompanying 26 a fertilizer. 27 "Labeling." All written, printed or graphic matter, upon or 28 accompanying any fertilizer or advertisements, brochures, 29 posters or electronic media used in promoting the distribution 30 of fertilizer. 20010H0437B0474 - 4 -
1 "Manufacture." To produce, mix, blend, repackage or further 2 process fertilizer or fertilizer material for distribution. 3 "Micronutrient." Any of the following: boron, chlorine, 4 cobalt, copper, iron, manganese, molybdenum, sodium and zinc. 5 "Official sample." A sample of fertilizer taken by the 6 Department of Agriculture or its agent to effect the provisions 7 of this chapter and designated as official. 8 "Overall index value." The value obtained from the 9 calculation: (commercial value found) x 100/(commercial value 10 guaranteed). 11 "Percent" or "percentage." A percentage by weight. 12 "Person." An individual, partnership, association, firm, 13 corporation or any other legal entity. 14 "Plant nutrient." Any of the following: primary nutrient, 15 secondary nutrient and micronutrient. 16 "Primary nutrient." Any of the following: total nitrogen, 17 available phosphate and soluble potash. 18 "Secondary nutrient." Any of the following: calcium, 19 magnesium and sulfur. 20 "Secretary." The Secretary of Agriculture of the 21 Commonwealth or the secretary's designee. 22 "Specialty fertilizer." A fertilizer distributed for nonfarm 23 use and fertilizer material primarily intended to supply plant 24 nutrients other than nitrogen, phosphate or potash. 25 "Tolerance." A permitted variation from the guarantee of an 26 official sample of fertilizer. 27 § 6703. Licensing. 28 (a) General rule.--Every person engaged in the manufacture 29 of fertilizer to be distributed in this Commonwealth and every 30 guarantor of fertilizer shall, on or before July 1 of each year 20010H0437B0474 - 5 -
1 or prior to manufacture or distribution, apply for and obtain an 2 annual license for each guarantor and each facility, located in 3 this Commonwealth. The application for licensure must be on the 4 form prescribed by the department and shall be accompanied by a 5 $25 application fee. All licenses shall expire on June 30 of 6 each year. 7 (b) Labeling and typical analysis.--The department may 8 require an applicant for a license or a current licensee to 9 submit the labeling that the person is using or intends to use 10 for the fertilizer. The department may also require an applicant 11 or licensee to provide a typical analysis of selected components 12 that may be in the fertilizer. 13 § 6704. Registration of specialty fertilizers. 14 (a) Application.--Each brand and grade of specialty 15 fertilizer shall be registered by the guarantor with the 16 department before being offered for sale, sold or distributed in 17 this Commonwealth. An application for each brand and grade of 18 specialty fertilizer shall be made on a form prescribed by the 19 department and shall be accompanied by a fee of $25 per each 20 grade of each brand. Labels for each brand and grade shall 21 accompany the application. Upon the approval of an application 22 by the department, a copy of the registration shall be furnished 23 to the applicant. All registrations shall expire on June 30 of 24 each year. 25 (b) Contents of application.--An application for 26 registration shall include: 27 (1) The brand and grade. 28 (2) The guaranteed analysis. 29 (3) The name and address of the guarantor. 30 (4) The net weight. 20010H0437B0474 - 6 -
1 (c) Exemption.--A distributor shall not be required to 2 register a specialty fertilizer which is already registered 3 under this chapter by another person, providing the label does 4 not differ in any material respect. 5 (d) Late fee.--If the application for renewal of the 6 specialty fertilizer registration required in this section is 7 not filed prior to June 30 of each year, a penalty of $25 or 10% 8 of the registration fee, whichever is greater, may be assessed 9 and added to the original fee and shall be paid by the applicant 10 before the renewal specialty fertilizer registration is issued. 11 The penalty shall not apply if the applicant furnished an 12 affidavit that the applicant has not distributed the specialty 13 fertilizer subsequent to the expiration of the applicant's prior 14 registration. 15 § 6705. Labels and labeling. 16 (a) General rule.--Any fertilizer distributed in a container 17 in this Commonwealth shall have placed on or affixed to the 18 container a label setting forth in legible and conspicuous form: 19 (1) The brand and grade of the fertilizer, provided that 20 the grade shall not be required when no primary nutrients are 21 claimed. 22 (2) The guaranteed analysis. 23 (3) The name and address of the guarantor. 24 (4) The net weight. 25 (b) Bulk fertilizer.--In the case of bulk fertilizer 26 shipments, the information required by subsection (a) shall 27 accompany delivery and shall be provided in writing to the 28 purchaser at time of delivery. 29 (c) Other guarantees.--Guarantees for other nutrients shall 30 be expressed in the form of the element. The department may 20010H0437B0474 - 7 -
1 require by regulation that the source of such other nutrients be 2 stated on the application for registration and may be required 3 on the label. The department may require by regulation that 4 other beneficial substances or compounds be guaranteed. When any 5 plant nutrients or other substances or compounds are guaranteed, 6 they shall be subject to inspection and analysis in accordance 7 with the methods and regulations prescribed by the department. 8 (d) Proof of labeling claims.--The department may require 9 proof of any labeling claims made for fertilizer. Any research 10 in support of such claims shall be performed by an institution 11 approved by the department utilizing acceptable scientific 12 methodology. 13 (e) Consumer specified fertilizer formulations.--A 14 fertilizer formulated according to specifications which are 15 furnished by a consumer prior to mixing shall be labeled to 16 show: 17 (1) The net weight. 18 (2) The guaranteed analysis. 19 (3) The name and address of the guarantor. 20 (f) Bulk storage.--Fertilizer in bulk storage that is 21 intended for distribution shall be identified with a label 22 attached to the storage bin or container giving the name and 23 grade of the product. 24 § 6706. Inspection fees. 25 (a) Amounts.-- 26 (1) The guarantor whose name appears on the label of a 27 fertilizer distributed in this Commonwealth shall pay 28 semiannually and not later than January 31 and July 31 of 29 each year an inspection fee at the rate of 15¢ per ton. In no 30 case shall the inspection fee paid semiannually amount to 20010H0437B0474 - 8 -
1 less than $25. 2 (2) On packages of 15 pounds or less, there shall be 3 paid, in lieu of the inspection fee of 15¢ per ton provided 4 for in paragraph (1), annually and not later than January 31 5 of each year, an inspection fee of $25 for each brand and 6 grade of fertilizer distributed. 7 (3) If the guarantor whose name appears on the label 8 distributes fertilizers in this Commonwealth in both packages 9 of less and more than 15 pounds, the $25 inspection fee shall 10 be paid for its brands and grades sold in packages of 15 11 pounds or less and the 15¢ per ton fee shall be paid for its 12 packages of more than 15 pounds. 13 (b) Adjustment to fees by secretary.-- 14 (1) Notwithstanding the provisions of subsection (a), if 15 the secretary determines following notice to the registrants 16 and licensees that moneys derived from the registration and 17 inspection fees are either greater or less than that required 18 to administer this chapter, the secretary may reduce or 19 increase the inspection fee so as to maintain revenues 20 sufficient to administer this chapter. 21 (2) An inspection fee established under this subsection 22 may not be changed by more than 2¢ in one year and may not 23 exceed 25¢ per ton. 24 (3) The secretary shall announce the adjustment of fees 25 by publishing a notice in the Pennsylvania Bulletin. The 26 adjusted fees shall take effect 60 days after publication of 27 such notice in the Pennsylvania Bulletin. 28 § 6707. Tonnage reports. 29 (a) General rule.--The guarantor whose name appears on the 30 label shall submit, along with the requisite inspection fee, a 20010H0437B0474 - 9 -
1 report in a manner prescribed by the department listing by 2 county the net tons of each brand and grade of fertilizer 3 distributed in this Commonwealth for the period covered by the 4 inspection fee. 5 (b) Multiple guarantors.--When more than one guarantor is 6 involved in the distribution of fertilizer, the guarantor who 7 distributed the fertilizer last shall report the tonnage and pay 8 the inspection fee unless the report and payment have been made 9 by a prior distributor. 10 (c) Late fee.--A penalty of $25 or 10% of the inspection 11 fee, whichever is greater, shall be imposed for any fee or 12 report not submitted at the required time. 13 (d) Examination permitted.--The department or its authorized 14 representative may examine the records of the guarantor to 15 verify the information contained in the reports filed with the 16 department. Reports containing fraudulent or incorrect 17 information shall be considered a violation of this chapter for 18 which the department may assess any penalty as provided for in 19 this chapter. 20 (e) Confidentiality of information.-- 21 (1) No proprietary information furnished to the 22 department under this section shall be disclosed in such a 23 way as to knowingly or intentionally divulge a trade secret 24 of any person subject to the provisions of this chapter. 25 (2) This subsection shall not apply to information 26 furnished to a court or administrative tribunal in accordance 27 with law. 28 § 6708. Inspection, sampling and analysis. 29 (a) General rule.--The department shall inspect, sample, 30 make analyses of and test fertilizers distributed within this 20010H0437B0474 - 10 -
1 Commonwealth and shall inspect the storage of bulk fertilizer at 2 any time and place and to such an extent as the department may 3 deem necessary to determine whether such fertilizers are in 4 compliance with the provisions of this chapter. The department 5 or its agent may enter upon any public or private premises or 6 carriers during regular business hours in order to have access 7 to fertilizer subject to provisions of this chapter and the 8 records relating to this chapter. 9 (b) Laboratory methodology.--The department shall establish 10 by regulation the methods of fertilizer sampling and analysis. 11 In promulgating such regulations, the department shall consider 12 methods such as those adopted by the Association of Official 13 Analytical Chemists International. In cases not covered by such 14 methods or in cases where improved methods are available, the 15 department may issue a temporary order defining the method to be 16 utilized. The method defined in the temporary order shall be 17 effective upon publication in the Pennsylvania Bulletin. The 18 temporary order shall remain in effect for a period not to 19 exceed one year, unless reissued, or until such order is 20 promulgated as a regulation. 21 (c) Deficiency determination.--The department, in 22 determining whether any fertilizer is deficient, shall be guided 23 solely by the official sample obtained and analyzed as provided 24 for in subsections (a) and (b). 25 (d) Retention of official samples.--Official samples 26 maintained by the department and that require imposition of a 27 penalty for nutrient deficiency shall be retained for a minimum 28 of 90 days from issuance of a deficiency report. Upon request, 29 the department shall furnish to the guarantor a portion of any 30 sample that is subject to penalty or other legal action. Such 20010H0437B0474 - 11 -
1 requests must be made within 30 days of notification of sample 2 violations. 3 § 6709. Plant food deficiency. 4 (a) Penalties.--The following penalties shall be assessed 5 for deficiencies from the guaranteed analysis: 6 (1) A penalty payment of five times the commercial value 7 of each deficiency shall be assessed when the analysis shows 8 that a fertilizer is deficient: 9 (i) in one or more of its guaranteed primary 10 nutrients beyond a tolerance of 10% (two unit maximum); 11 or 12 (ii) when the overall index value of the primary 13 nutrients in the fertilizer is below 97. 14 (2) When a fertilizer is subject to a penalty payment 15 under both paragraph (1)(i) and (ii), the larger penalty 16 payment shall apply. Any such penalties assessed may not 17 exceed the retail price of the lot of fertilizer represented 18 by the official sample. 19 (3) Deficiencies beyond the tolerance as established by 20 regulation in a component other than a primary nutrient shall 21 be evaluated by the department and shall be subject to any 22 penalty under this chapter. 23 (b) Payment of penalties.--All penalties assessed under this 24 section shall be paid by the guarantor to the consumer of the 25 lot of fertilizer represented by the sample analyzed within 90 26 days after the date of notice from the department to the 27 guarantor. Receipts of payment shall be promptly forwarded by 28 the guarantor to the department. If the consumer cannot be 29 found, the penalties shall be paid to the department. 30 (c) Deficiencies in mixed fertilizers.--A deficiency in an 20010H0437B0474 - 12 -
1 official sample of mixed fertilizer resulting from nonuniformity 2 shall not be deemed distinguishable from a deficiency due to 3 actual plant nutrient shortage and shall be deemed a violation 4 of this chapter for which the department may assess any penalty 5 as provided for in this chapter. 6 § 6710. Commercial value. 7 For the purpose of determining the commercial value to be 8 applied under section 6709 (relating to plant food deficiency), 9 the department shall determine and publish annually the values 10 per pound of nitrogen, available phosphate and soluble potash in 11 fertilizers in this Commonwealth. The amounts determined and 12 published shall be used in determining and assessing penalty 13 payments. 14 § 6711. Misbranding. 15 No person shall distribute a misbranded fertilizer. A 16 fertilizer shall be deemed to be misbranded if: 17 (1) its labeling is false or misleading in any 18 particular; 19 (2) it is distributed under the name of another 20 fertilizer product; 21 (3) it is not labeled as required in section 6705 22 (relating to labels and labeling) and in accordance with 23 regulations prescribed under this chapter; or 24 (4) it purports to be or is represented as a fertilizer 25 or is represented as containing a plant nutrient or 26 fertilizer unless such plant nutrient or fertilizer conforms 27 to the definition of identity, if any, prescribed by 28 regulation. 29 § 6712. Adulteration. 30 (a) General rule.--No person shall distribute an adulterated 20010H0437B0474 - 13 -
1 fertilizer product. A fertilizer shall be deemed to be 2 adulterated if: 3 (1) it contains any deleterious or harmful substance in 4 sufficient amount to render it injurious to beneficial plant 5 life, animals, humans, aquatic life, soil or water when 6 applied in accordance with its intended use or directions for 7 use on the label; 8 (2) adequate warning statements or directions for use 9 which may be necessary to protect plant life, animals, 10 humans, aquatic life, soil or water are not shown upon the 11 label; 12 (3) its composition falls below or differs from that 13 which it is purported to possess by its labeling; or 14 (4) it contains viable weed seed in amounts exceeding 15 the limits which the department establishes by regulation. 16 (b) Exception.--A fertilizer shall not be considered 17 adulterated under this section if the quantity of the substance 18 in the fertilizer does not ordinarily render it injurious. 19 § 6713. Publications. 20 The department shall publish at least annually, and in such 21 form as it deems proper, such information concerning the 22 distribution of fertilizers and results of analyses based on 23 official samples of fertilizer distributed within this 24 Commonwealth as compared with analyses guaranteed under sections 25 6704 (relating to registration of specialty fertilizers) and 26 6705 (relating to labels and labeling). 27 § 6714. Short weight. 28 If any fertilizer in the possession of a consumer is found by 29 the department to be short in weight, the guarantor of that 30 fertilizer shall, within 30 days after official notice from the 20010H0437B0474 - 14 -
1 department, submit to the consumer a penalty payment of two 2 times the value of the actual shortage. 3 § 6715. Refusal, suspension or revocation of registration or 4 license. 5 The department may refuse, suspend or revoke the registration 6 of any fertilizer or refuse, suspend or revoke the license of 7 any person where the registrant or licensee has not complied 8 with the provisions of this chapter or of any person who has 9 used fraudulent or deceptive practices in the evasion of the 10 provisions of this chapter. 11 § 6716. Stop-sale orders. 12 (a) General rule.--The department may issue and enforce a 13 written or printed stop-sale, use or removal order to the owner 14 or custodian of any lot of fertilizer and to hold at a 15 designated place when the department finds the fertilizer is 16 being offered or exposed for sale in violation of any of the 17 provisions of this chapter. The order shall remain in effect 18 until the law has been complied with and the fertilizer is 19 released in writing by the department or the violation has been 20 otherwise legally disposed of by written authority. 21 (b) Release by department.--The department shall release 22 fertilizer held under a stop-sale order when the requirements of 23 the provisions of this chapter have been complied with and all 24 costs and expenses incurred in connection with the withdrawal 25 have been paid by the person responsible for the violation. 26 § 6717. Seizure and condemnation. 27 A lot of fertilizer not in compliance with the provisions of 28 this chapter shall be subject to seizure and condemnation by the 29 department, provided that in no instance shall the disposition 30 of the fertilizer be ordered by the department without first 20010H0437B0474 - 15 -
1 giving the claimant an opportunity for a hearing as provided for 2 in section 6718 (relating to appeal process) or for opportunity 3 to apply for permission to process or relabel the fertilizer to 4 bring it into compliance with this chapter. 5 § 6718. Appeal process. 6 All appeals shall be taken and hearings conducted in 7 accordance with the provisions of 2 Pa.C.S. Chs. 5 Subch. A 8 (relating to practice and procedure of Commonwealth agencies) 9 and 7 Subch. A (relating to judicial review of Commonwealth 10 agency action). 11 § 6719. Cooperation with other entities. 12 The department may cooperate with and enter into agreement 13 with governmental agencies of the Federal Government, agencies 14 of this Commonwealth and any other state in order to carry out 15 the purpose and provisions of this chapter. 16 § 6720. Rules and regulations. 17 The department shall promulgate and enforce rules and 18 regulations necessary for administration and implementation of 19 this chapter. 20 § 6721. Unlawful conduct. 21 It shall be unlawful for any person to fail to comply with or 22 to cause or assist in the violation of any order or any of the 23 provisions of this chapter or the rules and regulations adopted 24 under this chapter. 25 § 6722. Interference with officer or employee of department. 26 A person who willfully or intentionally interferes with an 27 employee or officer of the department in the performance of that 28 employee's or officer's duties or activities authorized under 29 this chapter commits a misdemeanor of the third degree and 30 shall, upon conviction, be subject to a term of imprisonment of 20010H0437B0474 - 16 -
1 not more than one year or a fine of not more than $2,500, or 2 both. 3 § 6723. Enforcement and penalties. 4 (a) Criminal penalties.--Unless otherwise specified, any 5 person who violates any of the provisions of this chapter or a 6 rule or regulation adopted thereunder or any order issued 7 pursuant thereto: 8 (1) For the first offense, commits a summary offense and 9 may, upon conviction, be sentenced, for each offense, to pay 10 a fine of not less than $50 nor more than $100 and costs of 11 prosecution or to undergo imprisonment for a term which shall 12 be fixed at not more than 90 days, or both. 13 (2) For a subsequent offense committed within three 14 years of a prior conviction for any violation of this chapter 15 or any rule, regulation or order made under this chapter, 16 commits a misdemeanor of the second degree and shall, upon 17 conviction, be sentenced to pay a fine of not less than $500 18 nor more than $1,000 and costs of prosecution or to 19 imprisonment for not more than two years or both. 20 (b) Trade secrets.-- 21 (1) Any person who uses to that person's own advantage 22 or reveals to anyone other than the department, 23 administrative tribunal or the courts when relevant in any 24 judicial proceeding any information acquired under the 25 authority of this chapter concerning any method, records, 26 formulations or processes which as a trade secret is entitled 27 to protection under the law commits a misdemeanor of the 28 third degree and shall, upon conviction, be sentenced to pay 29 a fine of not less than $500 or to imprisonment for not less 30 than one year, or both. 20010H0437B0474 - 17 -
1 (2) This subsection shall not be construed to prohibit 2 the department from exchanging information of a regulatory 3 nature with governmental agencies of the Federal Government, 4 agencies of this Commonwealth or any other state to implement 5 the provisions of this chapter. 6 (c) Civil penalties.-- 7 (1) In addition to any other remedy available at law or 8 in equity for a violation of this chapter, the department may 9 assess a civil penalty of not more than $2,500 upon any 10 person for each violation of this chapter. The civil penalty 11 assessed shall be payable to the department and shall be 12 collectible in any manner provided by law for the collection 13 of debt. 14 (2) No civil penalty shall be assessed unless the person 15 assessed the penalty has been given notice and an opportunity 16 for a hearing on the assessment in accordance with the 17 provisions of 2 Pa.C.S. Chs. 5 Subch. A (relating to practice 18 and procedure of Commonwealth agencies) and 7 Subch. A 19 (relating to judicial review of Commonwealth agency action). 20 (d) Certified copy of official analysis.--In prosecution 21 under this chapter involving the composition of a lot of 22 fertilizer, a certified copy of the official analysis signed by 23 the secretary or the secretary's designee shall be accepted as 24 prima facie evidence of the composition. 25 (e) De minimis violations.--Nothing in this chapter shall be 26 construed as requiring the department to report a violation and 27 to institute seizure proceedings as a result of de minimis 28 violations of this chapter when the department concludes that 29 the public interest will be best served by a suitable notice of 30 warning in writing. 20010H0437B0474 - 18 -
1 § 6724. Exchanges between manufacturers. 2 Nothing in this chapter shall be construed as restricting or 3 avoiding sales or exchanges of fertilizers to each other by 4 importers, manufacturers or manipulators who mix fertilizer 5 materials for sale, or as preventing the free and unrestricted 6 shipments of fertilizer to manufacturers or manipulators who are 7 licensed as required by provisions of this chapter. 8 § 6725. Disposition of funds. 9 Moneys received from license fees, registration fees, 10 inspection fees, fines and penalties shall be paid into a 11 special restricted account in the General Fund to be known as 12 the Agronomic Regulatory Account. All moneys in the Agronomic 13 Regulatory Account are hereby appropriated to the department for 14 the purposes of this chapter and Chapter 69 (relating to soil 15 and plant amendment). All funds appropriated to the department 16 from The Feed and Fertilizer Fund established under the act of 17 May 29, 1956 (1955 P.L.1795, No.598), known as the Pennsylvania 18 Fertilizer, Soil Conditioner and Plant Growth Substance Law, and 19 obligations shall be transferred to the Agronomic Regulatory 20 Account. 21 CHAPTER 69 22 SOIL AND PLANT AMENDMENT 23 Sec. 24 6901. Short title of chapter. 25 6902. Definitions. 26 6903. Licensing. 27 6904. Registration. 28 6905. Labels and labeling. 29 6906. Inspection fees. 30 6907. Tonnage reports. 20010H0437B0474 - 19 -
1 6908. Inspection, sampling and analysis. 2 6909. Misbranding. 3 6910. Adulteration. 4 6911. Short weight. 5 6912. Refusal, suspension or revocation of registration or 6 license. 7 6913. Stop-sale orders. 8 6914. Seizure and condemnation. 9 6915. Appeal process. 10 6916. Cooperation with other entities. 11 6917. Rules and regulations. 12 6918. Unlawful conduct. 13 6919. Interference with officer or employee of department. 14 6920. Enforcement and penalties. 15 6921. Disposition of funds. 16 § 6901. Short title of chapter. 17 This chapter shall be known and may be cited as the Soil and 18 Plant Amendment Act. 19 § 6902. Definitions. 20 The following words and phrases when used in this chapter 21 shall have the meanings given to them in this section unless the 22 context clearly indicates otherwise: 23 "Active ingredient." A soil amending or plant amending 24 ingredient that is not a plant nutrient. 25 "Brand." The term, designation, trademark, product name or 26 other specific designation under which individual soil 27 amendments or plant amendments are offered for sale. 28 "Consumer." A person who purchases a soil amendment or plant 29 amendment for the end use of the product. 30 "Department." The Department of Agriculture of the 20010H0437B0474 - 20 -
1 Commonwealth. 2 "Distribute." To import, consign, offer for sale, sell, 3 barter or otherwise supply soil amendments and plant amendments 4 in this Commonwealth. 5 "Facility." Each separate mill or plant manufacturing a soil 6 amendment or plant amendment. 7 "Guarantor." The person whose name and address appears on 8 the label of a soil amendment or plant amendment. 9 "Label." The display of all written, printed or graphic 10 matter upon the immediate container or statement accompanying a 11 soil amendment or plant amendment. 12 "Labeling." All written, printed or graphic matter, upon or 13 accompanying any soil amendment or plant amendment or 14 advertisements, brochures, posters or electronic media used in 15 promoting the distribution of such soil amendment or plant 16 amendment. 17 "Manufacture." To produce, mix, blend, repackage or further 18 process a soil amendment, plant amendment, soil-amending 19 ingredient or plant-amending ingredient for distribution. 20 "Minimum percentage." That percent of soil-amending 21 ingredient or plant-amending ingredient that must be present in 22 a product before the product will be accepted for registration. 23 "Official sample." A sample of soil amendment or plant 24 amendment taken by the department or its agent to effect the 25 provisions of this chapter and designated as official. 26 "Other ingredients." Non-soil-amending or non-plant-amending 27 inert ingredients present in soil amendments or plant 28 amendments. 29 "Person." An individual, partnership, association, firm, 30 corporation or any other legal entity. 20010H0437B0474 - 21 -
1 "Plant amendment." Any substance applied to plants or seeds 2 which is intended to improve germination, growth, yield, product 3 quality, reproduction, flavor or other desirable characteristics 4 of plants, except fertilizers, soil amendments, agricultural 5 liming materials, unmanipulated animal and vegetable manures, 6 pesticides and other materials which may be exempted by 7 regulation. 8 "Plant-amending ingredient." A substance that will improve 9 germination, growth, yield, product quality, reproduction, 10 flavor or other desirable characteristics of plant. 11 "Secretary." The Secretary of Agriculture of the 12 Commonwealth or the secretary's designee. 13 "Soil amendment." Any substance which is intended to change 14 the chemical or physical characteristics of soil. The term does 15 not include fertilizers, agriculture liming materials, 16 unmanipulated animal and vegetable manures, pesticides and other 17 materials exempted by regulation. 18 "Soil-amending ingredient." A substance which changes the 19 chemical or physical characteristics of soil. 20 "Tolerance." A permitted variation from the guarantee of an 21 official sample of soil amendment or plant amendment. 22 § 6903. Licensing. 23 (a) General rule.--Every person engaged in the manufacture 24 of a soil amendment, plant amendment, soil-amending ingredient 25 or plant-amending ingredient to be distributed in this 26 Commonwealth and every guarantor of such products shall, on or 27 before July 1 of each year or prior to manufacture or 28 distribution, apply for and obtain an annual license for each 29 guarantor and each facility, located in this Commonwealth. The 30 application for licensure must be on the form prescribed by the 20010H0437B0474 - 22 -
1 department and shall be accompanied by a $25 application fee. 2 All licenses shall expire on June 30 of each year. 3 (b) Labeling and typical analysis.--The department may also 4 require an applicant for a license or a current licensee to 5 submit the labeling that the person is using or intends to use 6 for their soil amendments or plant amendments. The department 7 may also require an applicant or licensee to provide a typical 8 analysis of selected components that may be in the soil 9 amendment or plant amendment. 10 § 6904. Registration. 11 (a) Application.--Each brand and separately identified soil 12 amendment and plant amendment product shall be registered by the 13 guarantor with the department before being offered for sale, 14 sold or distributed in this Commonwealth. An application for 15 registration shall be submitted to the department on a form 16 prescribed by the department and shall be accompanied by a fee 17 of $25 per product. Labels and labeling shall accompany the 18 application. Upon approval of an application by the department, 19 a copy of the registration shall be furnished to the applicant. 20 All registrations shall expire on June 30 of each year. 21 (b) Contents of application.--An application for 22 registration shall include: 23 (1) The brand name. 24 (2) The active ingredients: 25 (i) Name and percentage of soil-amending 26 ingredients. 27 (ii) Name and percentage of plant-amending 28 ingredients. 29 (3) The total percentage of other ingredients. 30 (4) The purpose of the product. 20010H0437B0474 - 23 -
1 (5) The directions for application. 2 (6) The name and address of the guarantor. 3 (7) The net weight. 4 (c) Exemption.--A distributor shall not be required to 5 register a brand of soil amendment or plant amendment which is 6 already registered under this chapter by another person, 7 providing the label does not differ in any material respect. 8 (d) Minimum percentage to be established.--The department 9 may by regulation establish the minimum percentage of soil- 10 amending ingredients or plant-amending ingredients that must be 11 present before a soil amendment or plant amendment may be 12 registered and distributed. 13 (e) Late fee.--If the application for renewal of the soil 14 amendment or plant amendment registration required in this 15 section is not filed prior to June 30 of each year, a penalty of 16 $25 or 10% of the registration fee, whichever is greater, may be 17 assessed and added to the original fee and shall be paid by the 18 applicant before the renewal soil amendment or plant amendment 19 registration is issued. The penalty shall not apply if the 20 applicant furnished an affidavit that the applicant has not 21 distributed the soil amendment or plant amendment subsequent to 22 the expiration of the applicant's prior registration. 23 § 6905. Labels and labeling. 24 (a) General rule.--Any soil amendment or plant amendment 25 distributed in a container in this Commonwealth shall have 26 placed on or affixed to the container a label setting forth in 27 legible and conspicuous form: 28 (1) The brand name. 29 (2) The active ingredients: 30 (i) Name and percentage of soil-amending ingredient. 20010H0437B0474 - 24 -
1 (ii) Name and percentage of plant-amending 2 ingredient. 3 (3) The total percentage of other ingredients. 4 (4) The purpose of the product. 5 (5) The directions for application. 6 (6) The name and address of the guarantor. 7 (7) The net weight. 8 (b) Bulk shipments.--In the case of bulk shipments of soil 9 or plant amendments, the information required by subsection (a) 10 shall accompany delivery and shall be provided in writing to the 11 purchaser at time of delivery. 12 (c) False or misleading information prohibited.--No 13 information or statement shall appear on any package, label, 14 delivery slip or advertising matter which is false or misleading 15 to the purchaser as to the use, value, quality, analysis, type 16 or composition of the soil amendment or plant amendment. 17 (d) Proof of labeling claims.--The department may require 18 proof of any labeling claims made for a soil amendment or plant 19 amendment. Any research in support of such claims shall be 20 performed by an institution approved by the department utilizing 21 acceptable scientific methodology. 22 (e) Ingredient identification.--When a soil-amending 23 ingredient or plant-amending ingredient is identified on a 24 label, it must be determinable by laboratory methods such as 25 those set forth in section 6908(b) (relating to inspection, 26 sampling and analysis). 27 (f) Volume labeling authorized.--The department may allow 28 labeling by volume rather than weight in subsection (a). The 29 department may allow payment of inspection fees on a calculated 30 equivalent of volume to tons. 20010H0437B0474 - 25 -
1 (g) Bulk storage.--Soil amendments and plant amendments in 2 bulk storage intended for distribution shall be identified with 3 a label attached to the storage bin or container giving the 4 brand and name of the product. 5 § 6906. Inspection fees. 6 (a) Amounts.-- 7 (1) The guarantor whose name appears on the label of a 8 soil amendment or plant amendment distributed in this 9 Commonwealth shall pay semiannually and not later than 10 January 31 and July 31 of each year an inspection fee at the 11 rate of 15¢ per ton. In no case shall the inspection fee paid 12 semiannually amount to less than $25. 13 (2) On packages of 15 pounds or less, there shall be 14 paid, in lieu of the inspection fee of 15¢ per ton provided 15 for in paragraph (1), annually and not later than January 31 16 of each year, an inspection fee of $25 for each brand and 17 grade of soil amendment or plant amendment distributed. 18 (3) If the guarantor whose name appears on the label 19 distributes soil amendments or plant amendments in this 20 Commonwealth in both packages of less and more than 15 21 pounds, the $25 inspection fee shall be paid for its brands 22 sold in packages of 15 pounds or less, and the 15¢ per ton 23 fee shall be paid for its packages of more than 15 pounds. 24 (b) Adjustment to fees by secretary.-- 25 (1) Notwithstanding the provisions of subsection (a), if 26 the secretary determines following notice to the registrants 27 and licensees that moneys derived from the registration and 28 inspection fees are either greater or less than that required 29 to administer this chapter, the secretary may reduce or 30 increase the inspection fee so as to maintain revenues 20010H0437B0474 - 26 -
1 sufficient to administer this chapter. 2 (2) An inspection fee so established may not be changed 3 by more than 2¢ in one year and may not exceed 25¢ per ton. 4 (3) The secretary shall announce the adjustment of fees 5 by publishing a notice in the Pennsylvania Bulletin. The 6 adjusted fees shall take effect 60 days after publication of 7 such notice in the Pennsylvania Bulletin. 8 § 6907. Tonnage reports. 9 (a) General rule.--The guarantor whose name appears on the 10 label shall submit, along with an inspection fee, a report in a 11 manner prescribed by the department listing by county the net 12 tons of each brand of soil amendment or plant amendment 13 distributed in this Commonwealth for the period covered by the 14 inspection fee. 15 (b) Multiple guarantors.--When more than one guarantor is 16 involved in the distribution of a soil amendment or plant 17 amendment, the guarantor who distributed the soil amendment or 18 plant amendment last shall report the tonnage and pay the 19 inspection fee unless the report and payment have been made by a 20 prior distributor. 21 (c) Late fee.--A penalty of $25 or 10% of the inspection 22 fee, whichever is greater, shall be imposed for any fee or 23 report not submitted at the required time. 24 (d) Examination permitted.--The department or its authorized 25 representative may examine the records of the guarantor to 26 verify the information contained in the reports filed with the 27 department. Reports containing fraudulent or incorrect 28 information shall be considered a violation of this chapter for 29 which the department may assess a penalty. 30 (e) Confidentiality of information.-- 20010H0437B0474 - 27 -
1 (1) No proprietary information furnished to the 2 department under this section shall be disclosed in such a 3 way as to knowingly or intentionally divulge a trade secret 4 of any person subject to the provisions of this chapter. 5 (2) This subsection shall not apply to information 6 furnished to a court or administrative tribunal in accordance 7 with law. 8 § 6908. Inspection, sampling and analysis. 9 (a) General rule.--The department shall sample, inspect, 10 make analysis of and test soil amendments and plant amendments 11 distributed within this Commonwealth and shall inspect the 12 storage of soil amendments and plant amendments at any time and 13 place and to such an extent as the department may deem necessary 14 to determine whether such soil amendments and plant amendments 15 are in compliance with the provisions of this chapter. The 16 department or its agent may enter upon any public or private 17 premises or carriers during regular business hours in order to 18 have access to soil amendments and plant amendments subject to 19 provisions of this chapter and the records relating to this 20 chapter. 21 (b) Laboratory methodology.--The department shall establish 22 by regulation the methods of soil and plant amendment sampling 23 and analysis. In promulgating such regulations the department 24 shall consider methods such as those adopted by the Association 25 of Official Analytical Chemists International. In cases not 26 covered by such methods or in cases where improved methods are 27 available, the department may issue a temporary order defining 28 the method to be utilized. The method defined in the temporary 29 order shall be effective upon publication in the Pennsylvania 30 Bulletin. The temporary order shall remain in effect for a 20010H0437B0474 - 28 -
1 period not to exceed one year, unless reissued, or until such 2 order is promulgated as a regulation. 3 (c) Deficiency determination.--The department, in 4 determining whether any soil amendment or plant amendment is 5 deficient, shall be guided solely by the official sample, 6 obtained and analyzed as provided for in subsections (a) and 7 (b). 8 (d) Retention of official samples.--Official samples 9 maintained by the department and that require imposition of a 10 penalty shall be retained for a minimum of 90 days from issuance 11 of the penalty report. Upon request, the department shall 12 furnish to the guarantor a portion of any sample found subject 13 to penalty or other legal action. Such requests must be made 14 within 30 days of notification of sample violations. 15 § 6909. Misbranding. 16 No person shall distribute a misbranded soil amendment or 17 plant amendment. A soil amendment or plant amendment shall be 18 deemed to be misbranded if: 19 (1) its labeling is false or misleading in any 20 particular manner; 21 (2) it is distributed under the name of another soil 22 amendment or plant amendment product; 23 (3) it is not labeled as required in section 6905 24 (relating to labels and labeling) and in accordance with 25 regulations prescribed under this chapter; 26 (4) it purports to be or is represented as a soil 27 amendment or plant amendment or is represented as containing 28 a soil amendment or plant amendment unless such soil 29 amendment or plant amendment conforms to the definition of 30 identity, if any, prescribed by regulation of the department; 20010H0437B0474 - 29 -
1 or 2 (5) it does not conform to ingredient form, minimums, 3 labeling and tolerances prescribed by regulation. 4 § 6910. Adulteration. 5 (a) General rule.--No person shall distribute an adulterated 6 soil amendment or plant amendment product. A soil amendment or 7 plant amendment shall be deemed to be adulterated if: 8 (1) it contains any deleterious or harmful substance in 9 sufficient amount to render it injurious to beneficial plant 10 life, animals, humans, aquatic life, soil or water when 11 applied in accordance with its intended use or directions for 12 use on the label; 13 (2) adequate warning statements or directions for use 14 which may be necessary to protect plant life, animals, 15 humans, aquatic life, soil or water are not shown upon the 16 label; 17 (3) its composition falls below or differs from that 18 which it is purported to possess by its labeling; or 19 (4) it contains viable weed seed in amounts exceeding 20 the limits which the department establishes by regulation. 21 (b) Exception.--A soil amendment or plant amendment shall 22 not be considered adulterated under this section if the quantity 23 of the substance in the soil amendment or plant amendment does 24 not ordinarily render it injurious. 25 § 6911. Short weight. 26 If any soil amendment or plant amendment in the possession of 27 a consumer is found by the department to be short in weight, the 28 guarantor of that soil amendment or plant amendment shall, 29 within 30 days after official notice from the department, submit 30 to the consumer a penalty payment of two times the value of the 20010H0437B0474 - 30 -
1 actual shortage. 2 § 6912. Refusal, suspension or revocation of registration or 3 license. 4 The department may refuse, suspend or revoke the registration 5 of any soil amendment or plant amendment or refuse, suspend or 6 revoke the license of any person where the registrant or 7 licensee has not complied with the provisions of this chapter or 8 of any person who has used fraudulent or deceptive practices in 9 the evasion of the provisions of this chapter. 10 § 6913. Stop-sale orders. 11 (a) General rule.--The department may issue and enforce a 12 written or printed stop-sale, use or removal order to the owner 13 or custodian of any lot of soil amendment or plant amendment and 14 to hold at a designated place when the department finds the soil 15 amendment or plant amendment is being offered or exposed for 16 sale in violation of any of the provisions of this chapter. The 17 order shall remain in effect until the law has been complied 18 with and the soil amendment or plant amendment is released in 19 writing by the department or the violation has been otherwise 20 legally disposed of by written authority. 21 (b) Release by department.--The department shall release the 22 soil amendment or plant amendment held under a stop-sale order 23 when the requirements of the provisions of this chapter have 24 been complied with and all costs and expenses incurred in 25 connection with the withdrawal have been paid by the person 26 responsible for the violation. 27 § 6914. Seizure and condemnation. 28 A lot of soil amendment or plant amendment not in compliance 29 with the provisions of this chapter shall be subject to seizure 30 and condemnation by the department, provided that in no instance 20010H0437B0474 - 31 -
1 shall the disposition of the soil amendment or plant amendment 2 be ordered by the department without first giving the claimant 3 an opportunity for a hearing as provided for in section 6915 4 (relating to appeal process) or for opportunity to apply for 5 permission to process or relabel the soil amendment or plant 6 amendment to bring it into compliance with this chapter. 7 § 6915. Appeal process. 8 All appeals shall be taken and hearings conducted in 9 accordance with the provisions of 2 Pa.C.S. Chs. 5 Subch. A 10 (relating to practice and procedures of Commonwealth agencies) 11 and 7 Subch. A (relating to judicial review of Commonwealth 12 agencies). 13 § 6916. Cooperation with other entities. 14 The department may cooperate with and enter into an agreement 15 with governmental agencies of the Federal Government, agencies 16 of this Commonwealth and any other state in order to carry out 17 the purpose and provisions of this chapter. 18 § 6917. Rules and regulations. 19 The department shall promulgate and enforce rules and 20 regulations necessary for administration and implementation of 21 this chapter. 22 § 6918. Unlawful conduct. 23 It shall be unlawful for any person to fail to comply with or 24 to cause or assist in the violation of any order or any of the 25 provisions of this chapter or the rules and regulations adopted 26 under this chapter. 27 § 6919. Interference with officer or employee of department. 28 A person who willfully or intentionally interferes with an 29 employee or officer of the department in the performance of that 30 employee's or officer's duties or activities authorized under 20010H0437B0474 - 32 -
1 this chapter commits a misdemeanor of the third degree and 2 shall, upon conviction, be subject to a term of imprisonment of 3 not more than one year or a fine of not more than $2,500, or 4 both. 5 § 6920. Enforcement and penalties. 6 (a) Criminal penalties.--Unless otherwise specified, any 7 person who violates any of the provisions of this chapter or a 8 rule or regulation adopted thereunder or any order issued 9 pursuant thereto: 10 (1) For the first offense, commits a summary offense and 11 shall, upon conviction, be sentenced for each offense, to pay 12 a fine of not less than $50 nor more than $100 and costs of 13 prosecution or to serve a term of imprisonment for not more 14 than 90 days, or both. 15 (2) For a subsequent offense committed within three 16 years of a prior conviction for any violation of this chapter 17 or any rule, regulation or order made under this chapter, 18 commits a misdemeanor of the second degree and shall, upon 19 conviction, be sentenced to pay a fine of not less than $500 20 nor more than $1,000 and costs of prosecution or to serve a 21 term of imprisonment for not more than two years, or both. 22 (b) Trade secrets.-- 23 (1) Any person who uses to that person's own advantage 24 or reveals to anyone other than the department, 25 administrative tribunal or the courts when relevant in any 26 judicial proceeding any information acquired under the 27 authority of this chapter concerning any method, records, 28 formulations or processes which as a trade secret is entitled 29 to protection under the law commits a misdemeanor of the 30 third degree and shall, upon conviction, be sentenced to pay 20010H0437B0474 - 33 -
1 a fine of not less than $500 or to serve a term of 2 imprisonment for not less than one year, or both. 3 (2) This subsection shall not be construed to prohibit 4 the department from exchanging information of a regulatory 5 nature with governmental agencies of the Federal Government, 6 agencies of this Commonwealth or any other state in order to 7 implement the purpose and provisions of this chapter. 8 (c) Civil penalties.-- 9 (1) In addition to proceeding under any other remedy 10 available at law or in equity for a violation of this 11 chapter, the department may assess a civil penalty of not 12 more than $2,500 upon any person for each violation of this 13 chapter. The civil penalty assessed shall be payable to the 14 department and shall be collectible in any manner provided by 15 law for the collection of debt. 16 (2) No civil penalty shall be assessed unless the person 17 assessed the penalty has been given notice and opportunity 18 for a hearing on the penalty assessment in accordance with 19 the provisions of 2 Pa.C.S. Chs. 5 Subch. A (relating to 20 practice and procedure of Commonwealth agencies) and 7 Subch. 21 A (relating to judicial review of Commonwealth agency 22 action). 23 (d) Certified copy of official analysis.--In prosecutions 24 under this chapter involving the composition of a lot of soil 25 amendment or plant amendment, a certified copy of the official 26 analysis signed by the secretary or the secretary's designee 27 shall be accepted as prima facie evidence of the composition. 28 (e) De minimis violations.--Nothing in this chapter shall be 29 construed as requiring the department to report a violation and 30 to institute seizure proceedings as a result of a de minimis 20010H0437B0474 - 34 -
1 violation of this chapter when the department concludes that the 2 public interest will be best served by a suitable notice of 3 warning in writing. 4 § 6921. Disposition of funds. 5 Moneys received from license fees, registration fees, 6 inspection fees, fines and penalties shall be paid into the 7 Agronomic Regulatory Account established in section 6725 8 (relating to disposition of funds). All moneys in the Agronomic 9 Regulatory Account are hereby appropriated to the department for 10 the purposes of this chapter and Chapter 67 (relating to 11 fertilizer). 12 Section 2. The act of May 29, 1956 (1955 P.L.1795, No.598), 13 known as the Pennsylvania Fertilizer, Soil Conditioner and Plant 14 Growth Substance Law, is repealed. 15 Section 3. This act shall take effect in 60 days. L7L03VDL/20010H0437B0474 - 35 -