Trial Engrossment of Amendment A02415 to Senate Bill 0251 P.N. 0275, Regular Session 2021-2022

A02415

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

251

Session of

2021

INTRODUCED BY YAW, MARTIN, GORDNER, BAKER, TARTAGLIONE AND

STEFANO, FEBRUARY 26, 2021

REFERRED TO AGRICULTURE AND RURAL AFFAIRS, FEBRUARY 26, 2021

AN ACT

Amending Title 3 (Agriculture) of the Pennsylvania Consolidated

Statutes, repealing provisions relating to fertilizer;

providing for fertilizer; in soil and plant amendment,

further providing for disposition of funds; in seed, further

providing for disposition of funds; establishing the

Agronomic Regulatory Account within the General Fund;

imposing duties on the Department of Agriculture; and making

conforming amendments.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Chapter 67 of Title 3 of the Pennsylvania

Consolidated Statutes is repealed:

[CHAPTER 67

FERTILIZER

§ 6701. Short title of chapter.

This chapter shall be known and may be cited as the

Fertilizer Act.

§ 6702. Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Brand." A term, design or trademark used in connection with

one or several grades of fertilizer.

"Bulk fertilizer." A fertilizer distributed in a nonpackaged

form.

"By-product." Municipal waste or residual waste as defined

in the act of July 7, 1980 (P.L.380, No.97), known as the Solid

Waste Management Act, that contains a plant nutrient and meets

all the applicable regulations of the Department of

Environmental Protection.

"Consumer." A person who purchases fertilizer for the end

use of the product.

"Deficiency." The amount of nutrient found by analysis to be

less than that guaranteed.

"Department." The Department of Agriculture of the

Commonwealth.

"Distribute." To import, consign, offer for sale, sell,

barter or otherwise supply fertilizer in this Commonwealth.

"Facility." Each separate mill or plant that manufactures

fertilizer.

"Fertilizer." Any substance, including fertilizer material,

mixed fertilizer, specialty fertilizer and bulk fertilizer,

containing one or more recognized plant nutrients which is used

for its plant nutrient content and which is designed for use or

claimed to have value in promoting plant growth, except

unmanipulated animal and vegetable manure, agricultural liming

materials, wood ashes and other materials exempted by regulation

by the Department of Agriculture.

"Fertilizer material." A fertilizer which:

(1) contains only one of the following primary plant

nutrients: nitrogen, phosphate or potash;

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(2) has 85% or more of its plant nutrient content

present in the form of a single chemical compound; or

(3) is derived from a plant or animal residue, by-

product, coproduct as defined in regulation or natural

material deposit which has been processed in such a way that

its content of plant nutrients has not been materially

changed except by purification and concentration.

"Grade." The percentage of total nitrogen, available

phosphate and soluble potash stated in whole numbers in the same

terms, order and percentages as in the guaranteed analysis

except that, with respect to specialty fertilizers, fertilizer

materials, bone meal, manures and similar materials, the

guaranteed analysis may be stated in fractional units.

"Guaranteed analysis." The minimum percentage of plant

nutrients claimed in the following order and form:

Total nitrogen (N) %

Available phosphate (P2O5) %

Soluble potash (K2O) %

For other organic phosphatic materials, the total phosphate or

degree of fineness may also be guaranteed. Guarantees for plant

nutrients other than nitrogen, phosphorus and potassium may be

established by regulation.

"Guarantor." The person whose name and address appears on

the label of a fertilizer.

"Label." The display of all written, printed or graphic

matter upon the immediate container or a statement accompanying

a fertilizer.

"Labeling." All written, printed or graphic matter upon or

accompanying any fertilizer or advertisements, brochures,

posters or electronic media used in promoting the distribution

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of fertilizer.

"Manufacture." To produce, mix, blend, repackage or further

process fertilizer or fertilizer material for distribution.

"Micronutrient." Any of the following: boron, chlorine,

cobalt, copper, iron, manganese, molybdenum, sodium and zinc.

"Official sample." A sample of fertilizer taken by the

Department of Agriculture or its agent to effect the provisions

of this chapter and designated as official.

"Overall index value." The value obtained from the

calculation: (commercial value found) x 100/(commercial value

guaranteed).

"Percent" or "percentage." A percentage by weight.

"Person." An individual, partnership, association, firm,

corporation or any other legal entity.

"Plant nutrient." Any of the following: primary nutrient,

secondary nutrient and micronutrient.

"Primary nutrient." Any of the following: total nitrogen,

available phosphate and soluble potash.

"Secondary nutrient." Any of the following: calcium,

magnesium and sulfur.

"Secretary." The Secretary of Agriculture of the

Commonwealth or the secretary's designee.

"Specialty fertilizer." A fertilizer distributed for nonfarm

use and fertilizer material primarily intended to supply plant

nutrients other than nitrogen, phosphate or potash.

"Tolerance." A permitted variation from the guarantee of an

official sample of fertilizer.

§ 6703. Licensing.

(a) General rule.--Every person engaged in the manufacture

of fertilizer to be distributed in this Commonwealth and every

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guarantor of fertilizer shall, on or before July 1 of each year

or prior to manufacture or distribution, apply for and obtain an

annual license for each guarantor and each facility located in

this Commonwealth. The application for licensure must be on the

form prescribed by the department and shall be accompanied by a

$25 application fee. All licenses shall expire on June 30 of

each year.

(b) Labeling and typical analysis.--The department may

require an applicant for a license or a current licensee to

submit the labeling that the person is using or intends to use

for the fertilizer. The department may also require an applicant

or licensee to provide a typical analysis of selected components

that may be in the fertilizer.

§ 6704. Registration of specialty fertilizers.

(a) Application.--Each brand and grade of specialty

fertilizer shall be registered by the guarantor with the

department before being offered for sale, sold or distributed in

this Commonwealth. An application for each brand and grade of

specialty fertilizer shall be made on a form prescribed by the

department and shall be accompanied by a fee of $25 per each

grade of each brand. Labels for each brand and grade shall

accompany the application. Upon the approval of an application

by the department, a copy of the registration shall be furnished

to the applicant. All registrations shall expire on June 30 of

each year.

(b) Contents of application.--An application for

registration shall include:

(1) The brand and grade.

(2) The guaranteed analysis.

(3) The name and address of the guarantor.

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(4) The net weight.

under this chapter by another person, providing the label does

not differ in any material respect.

(d) Late fee.--If the application for renewal of the

specialty fertilizer registration required in this section is

not filed prior to June 30 of each year, a penalty of $25 or 10%

of the registration fee, whichever is greater, may be assessed

and added to the original fee and shall be paid by the applicant

before the renewal specialty fertilizer registration is issued.

The penalty shall not apply if the applicant furnished an

affidavit that the applicant has not distributed the specialty

fertilizer subsequent to the expiration of the applicant's prior

registration.

§ 6705. Labels and labeling.

(a) General rule.--Any fertilizer distributed in a container

in this Commonwealth shall have placed on or affixed to the

container a label setting forth in legible and conspicuous form:

(1) The brand and grade of the fertilizer, provided that

the grade shall not be required when no primary nutrients are

claimed.

(2) The guaranteed analysis.

(3) The name and address of the guarantor.

(4) The net weight.

(b) Bulk fertilizer.--In the case of bulk fertilizer

shipments, the information required by subsection (a) shall

accompany delivery and shall be provided in writing to the

purchaser at time of delivery.

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be expressed in the form of the element. The department may

require by regulation that the source of such other nutrients be

stated on the application for registration and may be required

on the label. The department may require by regulation that

other beneficial substances or compounds be guaranteed. When any

plant nutrients or other substances or compounds are guaranteed,

they shall be subject to inspection and analysis in accordance

with the methods and regulations prescribed by the department.

(d) Proof of labeling claims.--The department may require

proof of any labeling claims made for fertilizer. Any research

in support of such claims shall be performed by an institution

approved by the department utilizing acceptable scientific

methodology.

(e) Consumer-specified fertilizer formulations.--A

fertilizer formulated according to specifications which are

furnished by a consumer prior to mixing shall be labeled to

show:

(1) The net weight.

(2) The guaranteed analysis.

(3) The name and address of the guarantor.

(f) Bulk storage.--Fertilizer in bulk storage that is

intended for distribution shall be identified with a label

attached to the storage bin or container giving the name and

grade of the product.

§ 6706. Inspection fees.

(a) Amounts.--

(1) The guarantor whose name appears on the label of a

fertilizer distributed in this Commonwealth shall pay

semiannually and not later than January 31 and July 31 of

each year an inspection fee at the rate of 15¢ per ton. In no

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case shall the inspection fee paid semiannually amount to

less than $25.

(2) On packages of 15 pounds or less, there shall be

paid in lieu of the inspection fee of 15¢ per ton provided

for in paragraph (1), annually and not later than January 31

of each year, an inspection fee of $25 for each brand and

grade of fertilizer distributed.

(3) If the guarantor whose name appears on the label

distributes fertilizers in this Commonwealth in both packages

of less and more than 15 pounds, the $25 inspection fee shall

be paid for its brands and grades sold in packages of 15

pounds or less, and the 15¢ per ton fee shall be paid for its

packages of more than 15 pounds.

(b) Adjustment to fees by secretary.--

(1) Notwithstanding the provisions of subsection (a), if

the secretary determines following notice to the registrants

and licensees that moneys derived from the registration and

inspection fees are either greater or less than that required

to administer this chapter, the secretary may reduce or

increase the inspection fee so as to maintain revenues

sufficient to administer this chapter.

(2) An inspection fee established under this subsection

may not be changed by more than 2¢ in one year and may not

exceed 25¢ per ton.

(3) The secretary shall announce the adjustment of fees

by publishing a notice in the Pennsylvania Bulletin. The

adjusted fees shall take effect 60 days after publication of

such notice in the Pennsylvania Bulletin.

§ 6707. Tonnage reports.

(a) General rule.--The guarantor whose name appears on the

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label shall submit, along with the requisite inspection fee, a

report in a manner prescribed by the department listing by

county the net tons of each brand and grade of fertilizer

distributed in this Commonwealth for the period covered by the

inspection fee.

(b) Multiple guarantors.--When more than one guarantor is

involved in the distribution of fertilizer, the guarantor who

distributed the fertilizer last shall report the tonnage and pay

the inspection fee unless the report and payment have been made

by a prior distributor.

fee, whichever is greater, shall be imposed for any fee or

report not submitted at the required time.

(d) Examination permitted.--The department or its authorized

representative may examine the records of the guarantor to

verify the information contained in the reports filed with the

department. Reports containing fraudulent or incorrect

information shall be considered a violation of this chapter for

which the department may assess any penalty as provided for in

this chapter.

(e) Confidentiality of information.--

(1) No proprietary information furnished to the

department under this section shall be disclosed in such a

way as to knowingly or intentionally divulge a trade secret

of any person subject to the provisions of this chapter.

(2) This subsection shall not apply to information

furnished to a court or administrative tribunal in accordance

with law.

§ 6708. Inspection, sampling and analysis.

(a) General rule.--The department shall inspect, sample,

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make analyses of and test fertilizers distributed within this

Commonwealth and shall inspect the storage of bulk fertilizer at

any time and place and to such an extent as the department may

deem necessary to determine whether such fertilizers are in

compliance with the provisions of this chapter. The department

or its agent may enter upon any public or private premises or

carriers during regular business hours in order to have access

to fertilizer subject to provisions of this chapter and the

records relating to this chapter.

(b) Laboratory methodology.--The department shall establish

by regulation the methods of fertilizer sampling and analysis.

In promulgating such regulations, the department shall consider

methods such as those adopted by the Association of Official

Analytical Chemists International. In cases not covered by such

methods or in cases where improved methods are available, the

department may issue a temporary order defining the method to be

utilized. The method defined in the temporary order shall be

effective upon publication in the Pennsylvania Bulletin. The

temporary order shall remain in effect for a period not to

exceed one year unless reissued or until such order is

promulgated as a regulation.

determining whether any fertilizer is deficient, shall be guided

solely by the official sample obtained and analyzed as provided

for in subsections (a) and (b).

(d) Retention of official samples.--Official samples

maintained by the department and that require imposition of a

penalty for nutrient deficiency shall be retained for a minimum

of 90 days from issuance of a deficiency report. Upon request,

the department shall furnish to the guarantor a portion of any

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sample that is subject to penalty or other legal action. Such

requests must be made within 30 days of notification of sample

violations.

§ 6709. Plant food deficiency.

(a) Penalties.--The following penalties shall be assessed

for deficiencies from the guaranteed analysis:

(1) A penalty payment of five times the commercial value

of each deficiency shall be assessed when the analysis shows

that a fertilizer is deficient:

(i) in one or more of its guaranteed primary

nutrients beyond a tolerance of 10% (two unit maximum);

(ii) when the overall index value of the primary

nutrients in the fertilizer is below 97.

(2) When a fertilizer is subject to a penalty payment

under both paragraph (1)(i) and (ii), the larger penalty

payment shall apply. Any such penalties assessed may not

exceed the retail price of the lot of fertilizer represented

by the official sample.

(3) Deficiencies beyond the tolerance as established by

regulation in a component other than a primary nutrient shall

be evaluated by the department and shall be subject to any

penalty under this chapter.

(b) Payment of penalties.--All penalties assessed under this

section shall be paid by the guarantor to the consumer of the

lot of fertilizer represented by the sample analyzed within 90

days after the date of notice from the department to the

guarantor. Receipts of payment shall be promptly forwarded by

the guarantor to the department. If the consumer cannot be

found, the penalties shall be paid to the department.

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official sample of mixed fertilizer resulting from nonuniformity

shall not be deemed distinguishable from a deficiency due to

actual plant nutrient shortage and shall be deemed a violation

of this chapter for which the department may assess any penalty

as provided for in this chapter.

§ 6710. Commercial value.

For the purpose of determining the commercial value to be

applied under section 6709 (relating to plant food deficiency),

the department shall determine and publish annually the values

per pound of nitrogen, available phosphate and soluble potash in

fertilizers in this Commonwealth. The amounts determined and

published shall be used in determining and assessing penalty

payments.

§ 6711. Misbranding.

No person shall distribute a misbranded fertilizer. A

fertilizer shall be deemed to be misbranded if:

(1) its labeling is false or misleading in any

particular;

(2) it is distributed under the name of another

fertilizer product;

(3) it is not labeled as required in section 6705

(relating to labels and labeling) and in accordance with

regulations prescribed under this chapter; or

(4) it purports to be or is represented as a fertilizer

or is represented as containing a plant nutrient or

fertilizer unless such plant nutrient or fertilizer conforms

to the definition of identity, if any, prescribed by

regulation.

§ 6712. Adulteration.

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(a) General rule.--No person shall distribute an adulterated

fertilizer product. A fertilizer shall be deemed to be

adulterated if:

(1) it contains any deleterious or harmful substance in

sufficient amount to render it injurious to beneficial plant

life, animals, humans, aquatic life, soil or water when

applied in accordance with its intended use or directions for

use on the label;

(2) adequate warning statements or directions for use

which may be necessary to protect plant life, animals,

humans, aquatic life, soil or water are not shown upon the

label;

(3) its composition falls below or differs from that

which it is purported to possess by its labeling; or

(4) it contains viable weed seed in amounts exceeding

the limits which the department establishes by regulation.

(b) Exception.--A fertilizer shall not be considered

adulterated under this section if the quantity of the substance

in the fertilizer does not ordinarily render it injurious.

§ 6713. Publications.

The department shall publish at least annually and in such

form as it deems proper such information concerning the

distribution of fertilizers and results of analyses based on

official samples of fertilizer distributed within this

Commonwealth as compared with analyses guaranteed under sections

6704 (relating to registration of specialty fertilizers) and

6705 (relating to labels and labeling).

§ 6714. Short weight.

If any fertilizer in the possession of a consumer is found by

the department to be short in weight, the guarantor of that

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fertilizer shall, within 30 days after official notice from the

department, submit to the consumer a penalty payment of two

times the value of the actual shortage.

§ 6715. Refusal, suspension or revocation of registration or

license.

The department may refuse, suspend or revoke the registration

of any fertilizer or refuse, suspend or revoke the license of

any person where the registrant or licensee has not complied

with the provisions of this chapter or of any person who has

used fraudulent or deceptive practices in the evasion of the

provisions of this chapter.

§ 6716. Stop-sale orders.

(a) General rule.--The department may issue and enforce a

written or printed stop-sale, use or removal order to the owner

or custodian of any lot of fertilizer and to hold at a

designated place when the department finds the fertilizer is

being offered or exposed for sale in violation of any of the

provisions of this chapter. The order shall remain in effect

until the law has been complied with and the fertilizer is

released in writing by the department or the violation has been

otherwise legally disposed of by written authority.

(b) Release by department.--The department shall release

fertilizer held under a stop-sale order when the requirements of

the provisions of this chapter have been complied with and all

costs and expenses incurred in connection with the withdrawal

have been paid by the person responsible for the violation.

§ 6717. Seizure and condemnation.

A lot of fertilizer not in compliance with the provisions of

this chapter shall be subject to seizure and condemnation by the

department, provided that in no instance shall the disposition

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of the fertilizer be ordered by the department without first

giving the claimant an opportunity for a hearing as provided for

in section 6718 (relating to appeal process) or for opportunity

to apply for permission to process or relabel the fertilizer to

bring it into compliance with this chapter.

§ 6718. Appeal process.

All appeals shall be taken and hearings conducted in

accordance with the provisions of 2 Pa.C.S. Chs. 5 Subch. A

(relating to practice and procedure of Commonwealth agencies)

and 7 Subch. A (relating to judicial review of Commonwealth

agency action).

§ 6719. Cooperation with other entities.

The department may cooperate with and enter into agreement

with governmental agencies of the Federal Government, agencies

of this Commonwealth and any other state in order to carry out

the purpose and provisions of this chapter.

§ 6720. Rules and regulations.

The department shall promulgate and enforce rules and

regulations necessary for administration and implementation of

this chapter.

§ 6721. Unlawful conduct.

It shall be unlawful for any person to fail to comply with or

to cause or assist in the violation of any order or any of the

provisions of this chapter or the rules and regulations adopted

under this chapter.

§ 6722. Interference with officer or employee of department.

A person who willfully or intentionally interferes with an

employee or officer of the department in the performance of that

employee's or officer's duties or activities authorized under

this chapter commits a misdemeanor of the third degree and

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shall, upon conviction, be subject to a term of imprisonment of

not more than one year or a fine of not more than $2,500, or

both.

§ 6723. Enforcement and penalties.

(a) Criminal penalties.--Unless otherwise specified, any

person who violates any of the provisions of this chapter or a

rule or regulation adopted thereunder or any order issued

pursuant thereto:

(1) For the first offense, commits a summary offense and

may, upon conviction, be sentenced for each offense to pay a

fine of not less than $50 nor more than $100 and costs of

prosecution or to undergo imprisonment for a term which shall

be fixed at not more than 90 days, or both.

(2) For a subsequent offense committed within three

years of a prior conviction for any violation of this chapter

or any rule, regulation or order made under this chapter,

commits a misdemeanor of the second degree and shall, upon

conviction, be sentenced to pay a fine of not less than $500

nor more than $1,000 and costs of prosecution or to

imprisonment for not more than two years, or both.

(b) Trade secrets.--

(1) Any person who uses to that person's own advantage

or reveals to anyone other than the department,

administrative tribunal or the courts when relevant in any

judicial proceeding any information acquired under the

authority of this chapter concerning any method, records,

formulations or processes which as a trade secret is entitled

to protection under the law commits a misdemeanor of the

third degree and shall, upon conviction, be sentenced to pay

a fine of not less than $500 or to imprisonment for not less

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than one year, or both.

(2) This subsection shall not be construed to prohibit

the department from exchanging information of a regulatory

nature with governmental agencies of the Federal Government,

agencies of this Commonwealth or any other state to implement

the provisions of this chapter.

(1) In addition to any other remedy available at law or

in equity for a violation of this chapter, the department may

assess a civil penalty of not more than $2,500 upon any

person for each violation of this chapter. The civil penalty

assessed shall be payable to the department and shall be

collectible in any manner provided by law for the collection

of debt.

(2) No civil penalty shall be assessed unless the person

assessed the penalty has been given notice and an opportunity

for a hearing on the assessment in accordance with the

provisions of 2 Pa.C.S. Chs. 5 Subch. A (relating to practice

and procedure of Commonwealth agencies) and 7 Subch. A

(relating to judicial review of Commonwealth agency action).

(d) Certified copy of official analysis.--In prosecution

under this chapter involving the composition of a lot of

fertilizer, a certified copy of the official analysis signed by

the secretary or the secretary's designee shall be accepted as

prima facie evidence of the composition.

(e) De minimis violations.--Nothing in this chapter shall be

construed as requiring the department to report a violation and

to institute seizure proceedings as a result of de minimis

violations of this chapter when the department concludes that

the public interest will be best served by a suitable notice of

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warning in writing.

§ 6724. Exchanges between manufacturers.

Nothing in this chapter shall be construed as restricting or

avoiding sales or exchanges of fertilizers to each other by

importers, manufacturers or manipulators who mix fertilizer

materials for sale or as preventing the free and unrestricted

shipments of fertilizer to manufacturers or manipulators who are

licensed as required by provisions of this chapter.

§ 6725. Disposition of funds.

Moneys received from license fees, registration fees,

inspection fees, fines and penalties shall be paid into a

special restricted account in the General Fund to be known as

the Agronomic Regulatory Account. All moneys in the Agronomic

Regulatory Account are hereby appropriated to the department for

the purposes of this chapter and Chapters 69 (relating to soil

and plant amendment) and 71 (relating to seed).]

Section 2. Title 3 is amended by adding a chapter to read:

CHAPTER 68

FERTILIZER

Subchapter

A. General Provisions

B. Fertilizer Manufacturers and Guarantors

C. Applicator Licensing and Certification

D. Recordkeeping

E. Application Rates, Requirements and Prohibitions

F. Agricultural and Homeowner Education Program

G. Administration and Penalties

SUBCHAPTER A

GENERAL PROVISIONS

Sec.

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6801. Short title of chapter.

6802. Legislative intent.

6803. Definitions.

§ 6801. Short title of chapter.

This chapter shall be known and may be cited as the

Fertilizer Act.

§ 6802. Legislative intent.

This chapter is intended to:

(1) Provide for the labeling, application,

recordkeeping, packaging, use, sale and distribution of

agricultural fertilizer as well as turf or other specialty

fertilizer.

(2) Provide consumer protection through licensing,

labeling and sampling.

(3) Establish professional fertilizer applicator

certification.

(4) Provide a means of consumer education and outreach.

(5) Ensure that applicators follow best practices when

applying fertilizer.

§ 6803. Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Brand." A term, design or trademark used in connection with

one or several grades of fertilizer.

"Bulk fertilizer." A fertilizer distributed in a nonpackaged

form.

"By-product." Municipal waste or residual waste as defined

in the act of July 7, 1980 (P.L.380, No.97), known as the Solid

Waste Management Act, that contains a plant nutrient and meets

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all applicable regulations of the Department of Environmental

Protection.

"Certified applicator." A person who is certified under

section 6832 (relating to certification of applicators) as

competent to use or supervise the use of fertilizer or train

fertilizer technicians on the proper application of fertilizer.

"Commercial applicator." A person who applies or supervises

the application of fertilizer to the property or premises of

another or who applies or supervises application of fertilizer

to any of the following:

(1) A golf course.

(2) The property or premises of a public or private

park.

(3) The property or premises of a public, nonpublic or

licensed private elementary or secondary school where a

resident of this Commonwealth may fulfill the compulsory

school attendance requirements and that meets the applicable

requirements of Title IV of the Civil Rights Act of 1964

(Public Law 88-352, 78 Stat. 241). This term does not include

the residence of a home schooled student.

(4) A public or private college or university that

applies fertilizer to the campus grounds, excluding a person

who conducts research at a public or private college or

university or a State-related university that applies

fertilizer to test plots.

(5) A public playground or an athletic field.

"Consumer." A person who purchases fertilizer for the end

use of a product.

"Deficiency." The amount of nutrient found by analysis to be

less than that guaranteed, that may result from a lack of

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nutrient ingredients or uniformity.

"Department." The Department of Agriculture of the

Commonwealth.

"Distribute." To import, consign, offer for sale, sell,

barter or otherwise supply fertilizer in this Commonwealth.

"Distributor." A person that distributes fertilizer or

fertilizer material.

"Enhanced efficiency." Relating to a fertilizer product with

characteristics that allow increased plant nutrient uptake and

reduced potential of nutrient losses to the environment, such as

gaseous losses, leaching or runoff.

"Facility." Each separate mill or plant that manufactures

fertilizer.

"Fertilizer." A substance containing one or more recognized

plant nutrients that is used for its plant nutrient content and

is designed for use or claimed to have value in promoting plant

growth, except unmanipulated animal manure and plant remains,

spent mushroom substrate, agricultural liming materials, wood

ashes and other materials exempted by the department's

regulations. The term shall not apply to animal manure that is

regulated under:

(1) Chapter 5 (relating to nutrient management and odor

management);

(2) the act of June 28, 2004 (P.L.454, No.49), known as

the Commercial Manure Hauler and Broker Certification Act; or

(3) 25 Pa. Code § 91.36(b) (relating to pollution

control and prevention at agricultural operations).

"Fertilizer application business." A governmental or public

entity, commercial applicator or business for profit or not for

profit that applies fertilizer to or on:

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(1) the property or premises of another;

(2) the property or premises of a golf course, park,

school, college or university or public playground; or

(3) an athletic field.

"Fertilizer application business license." A license

obtained under section 6831 (relating to licensing of fertilizer

application businesses).

"Fertilizer license." A license obtained under section 6811

(relating to licensing).

"Fertilizer material." A fertilizer that:

(1) contains only one of the following primary plant

nutrients:

(i) nitrogen;

(ii) phosphate; or

(iii) potash;

(2) has at least 85% of its plant nutrient content

present in the form of a single chemical compound; or

(3) is derived from a plant or animal residue, by-

product, coproduct as defined in 25 Pa. Code § 287.1

(relating to definitions) or natural material deposit that

has been processed in a way that the fertilizer's content of

plant nutrients has not been materially changed except by

purification and concentration.

"Fertilizer technician." A person who:

(1) Is not certified under this chapter.

(2) Works for a fertilizer application business.

(3) Works under the direction of a certified applicator.

"Governmental or public entity." An executive or independent

agency or governmental unit of the Federal Government,

Commonwealth or its instrumentalities, a local agency, municipal

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authority or political subdivision.

"Grade." The percentage of total nitrogen, available

phosphate and soluble potash stated in whole numbers in the same

terms, order and percentages as in the guaranteed analysis,

except that, with respect to specialty fertilizers, fertilizer

materials, bone meal, manures and similar materials may be

stated in fractional units.

"Growing media." Material in which plants are grown, such as

garden soil, potting soil or commercial soil-less mixes.

"Guaranteed analysis." The minimum percentage of plant

nutrients claimed in the following order and form:

Total Nitrogen (N) %

Available Phosphate (P2O5) %

Soluble Potash (K2O) %

For other organic phosphatic materials, the total phosphate or

degree of fineness may also be guaranteed. Guarantees for plant

nutrients other than nitrogen, phosphorus and potassium may be

established by department regulation.

"Guarantor." A person, including a manufacturer or

distributor, whose name and address appear on the label of

fertilizer.

"Impervious surface." A structure, surface or improvement

that reduces or prevents infiltration of water into soil,

including, but not limited to, concrete, asphalt, roadways,

sidewalks, parking lots, driveways and patios.

"Label." The display of all written, printed or graphic

matter on the immediate container or a statement accompanying a

fertilizer.

"Labeling." All written, printed or graphic matter, on or

accompanying fertilizer or advertisements, brochures, posters or

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electronic media used in promoting the distribution of

fertilizer.

"Manipulation." Processed or treated in any manner,

including drying to a moisture content of less than 30%.

"Manufacture." To produce, mix, blend, repackage or further

process fertilizer or fertilizer material for distribution.

"Manure." Animal excrement, with or without the bedding,

litter, straw, washwater and other refuse materials, dirt and

waste ordinarily mixed or commingled with that excrement, that

is produced at an agricultural operation.

"Micronutrient." Any of the following:

(1) Boron.

(2) Chlorine.

(3) Cobalt.

(4) Copper.

(5) Iron.

(6) Manganese.

(7) Molybdenum.

(8) Nickel.

(9) Sodium.

(10) Zinc.

"Natural organic fertilizer." Materials that are:

(1) Derived from either plant or animal products

containing one or more elements, other than carbon, hydrogen

and oxygen.

(2) Essential for plant growth and subjected to

biological degradation processes under normal conditions of

aging, rainfall, sun curing, air drying, composting, rotting,

enzymatic or anaerobic or aerobic bacterial action or any

combination of these processes.

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(3) Not mixed with synthetic materials or changed in any

physical or chemical manner from their initial state except

by manipulations such as drying, cooking, chopping, grinding,

shredding, hydrolysis or pelleting.

"Net weight." The total weight of fertilizer as offered for

sale, excluding the weight of the container.

"Official sample." A sample of fertilizer collected or

obtained by the department or its agent to effectuate the

provisions of this chapter and designated as official.

"Organic-based fertilizer." A mixed fertilizer in which:

(1) More than half of the fertilizer materials are

organic.

(2) More than half of the sum of the guaranteed primary

nutrient percentages are derived from organic materials.

"Overall index value." The value obtained from the

calculation: (commercial value found) x 100 / (commercial value

guaranteed).

"Park." Privately or publicly owned outdoor real estate,

including a public recreational area and an area with restricted

access.

"Percentage." A percentage by weight.

"Person." An individual, a partnership, an association, a

firm, a corporation or another legal entity.

"Plant nutrient." Any of the following:

(1) A primary nutrient.

(2) A secondary nutrient.

(3) A micronutrient.

"Primary nutrient." Any of the following:

(1) Nitrogen.

(2) Phosphorus.

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(3) Potassium.

"Public applicator." A certified applicator who applies

fertilizer as an employee of the Federal or State government or

a public entity.

"Registrant." A person who registers fertilizer under this

chapter.

"Repackage." The placement of fertilizer into a container or

bulk bin other than what is supplied by the guarantor.

"Secondary nutrient." Any of the following:

(1) Calcium.

(2) Magnesium.

(3) Sulfur.

"Specialty fertilizer." A fertilizer distributed for nonfarm

use or a fertilizer primarily intended to supply plant nutrients

other than nitrogen, phosphate or potash.

"Stream buffer zone." A permanent strip of dense perennial

vegetation established parallel and immediately adjacent to the

bank of a pond, wetland or flowing body of water, such as a

stream, river or creek, that is used to slow water runoff,

enhance water infiltration and minimize the risk of potential

nutrients reaching the waters.

"Tolerance." A permitted variation from the guarantee of an

official sample of fertilizer.

"Ton." A net weight of 2,000 pounds.

"Turf." Land, including, but not limited to, residential

property, a golf course and privately or publicly owned land,

that is planted in closely mowed, managed grass, except for land

used for agricultural production.

SUBCHAPTER B

FERTILIZER MANUFACTURERS AND GUARANTORS

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Sec.

6811. Licensing.

6812. Registration of specialty fertilizers.

6813. Turf fertilizer components.

6814. Labels and labeling.

6815. Inspection fees.

6816. Tonnage reports.

6817. Plant food deficiency.

6818. Commercial value.

6819. Misbranding.

6820. Adulteration.

§ 6811. Licensing.

(a) Requirements.--Each person engaged in the manufacture of

fertilizer to be distributed in this Commonwealth and each

guarantor of the fertilizer shall, on or before July 1 of each

year or prior to manufacture or distribution of the fertilizer,

obtain a fertilizer license for each manufacturing facility

located in this Commonwealth and for each guarantor by

completing a form furnished by the department and paying a $50

application fee or a fee established in the manner provided

under section 6886 (relating to fees, fines and civil

penalties). All licenses shall expire on June 30 of each year.

(b) Labeling and typical analysis.--The department may

require an applicant for a fertilizer license or a current

fertilizer licensee to submit the labeling that the person is

using or intends to use for the fertilizer. The department may

also require an applicant or fertilizer licensee to provide a

typical analysis of selected components that may be in the

fertilizer.

§ 6812. Registration of specialty fertilizers.

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(a) Application.--Each brand and grade of specialty

fertilizer shall be registered by the guarantor with the

department before being offered for sale, sold or distributed in

this Commonwealth. An application for each brand and grade of

specialty fertilizer shall be made on a form furnished by the

department and shall be accompanied by a fee of $100 or a fee

established in the manner provided under section 6886 (relating

to fees, fines and civil penalties), per each grade of each

brand. Labels for each brand and grade shall accompany the

application. All registrations shall expire on June 30 of each

year.

(b) Contents of specialty fertilizer registration

application.--An application for registration shall include:

(1) The brand and grade.

(2) The guaranteed analysis.

(3) The name and address of the guarantor.

(4) Net weight.

(1) A distributor shall not be required to register a

specialty fertilizer that is already registered under this

chapter by another person, if the label does not differ in a

material respect.

(2) Registration shall not be required when a fertilizer

is formulated according to the specifications that are

furnished by the end user and is not further distributed or

offered for sale to the general public.

(d) Late fee.--

(1) If the application for renewal of the specialty

fertilizer registration required under this section is not

filed prior to June 30 of each year, a penalty of $25 or 10%

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of the total registration fee for all products sought to be

registered, whichever is greater, or a fee established in the

manner provided under section 6886 may be assessed and added

to the original fee and shall be paid by the applicant before

the renewal of the specialty fertilizer registration is

issued.

(2) The penalty shall not apply if the applicant

furnished an affidavit that the applicant has not distributed

the specialty fertilizer subsequent to the expiration of the

applicant's prior registration.

§ 6813. Turf fertilizer components.

(a) General rule.--Except as provided in subsection (b),

fertilizer labeled for turf that is distributed to end users in

this Commonwealth shall:

(1) Consist of at least 20% enhanced efficiency nitrogen

of the total nitrogen or as otherwise determined by the

department, which determination shall be transmitted to the

Legislative Reference Bureau for publication in the

Pennsylvania Bulletin.

(2) Contain no phosphorus, unless the fertilizer is a

natural organic or organic-based fertilizer.

(b) Exemptions.--

(1) Subsection (a) shall not apply when turf fertilizer

is labeled for repairing a turf area or establishing a turf

area for the first time.

(2) Subsection (a)(1) shall not apply to liquid turf

fertilizers or readily available nitrogen fertilizers labeled

for turf, if the directions for use are in accordance with

the requirements of section 6852 (relating to application of

fertilizer to turf).

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regulation, may establish additional requirements for turf

fertilizer.

§ 6814. Labels and labeling.

(a) Contents of label.--The guarantor of a fertilizer

distributed in a container in this Commonwealth shall place on

or affix to the container a label stating in legible and

conspicuous form the following:

(1) The brand and grade of the fertilizer. The grade

shall not be required if no primary nutrients are claimed.

(2) The guaranteed analysis.

(3) A statement of where the material was derived from.

(4) Directions for use for fertilizer distributed to the

end user.

(5) The name and address of the guarantor.

(6) The net weight.

(b) Bulk fertilizer.--In the case of bulk fertilizer

distribution, the information required under subsection (a)

shall accompany delivery and shall be provided in writing to the

purchaser at time of delivery.

primary nutrients, shall be expressed in the form of the

element. The department may require by regulation that other

beneficial substances or compounds be guaranteed. When plant

nutrients or other substances or compounds are guaranteed, they

shall be subject to inspection and analysis in accordance with

the methods and regulation prescribed by the department.

(d) Proof of labeling claims.--The department may require

proof of labeling claims made for fertilizer. Research in

support of the claims must be performed by an institution

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approved by the department utilizing acceptable scientific

methodology.

(e) Consumer-specified fertilizer formulations.--In lieu of

the requirements under subsection (a), a fertilizer formulated

according to specifications that are furnished by the end user

prior to mixing shall be labeled in a clearly legible and

conspicuous form to show the grade, net weight, guaranteed

analysis and name and address of the guarantor.

(f) Bulk fertilizer storage.--Bulk fertilizer in bulk

fertilizer storage that is intended for distribution shall be

identified with a label attached to the storage bin or container

giving the name and grade of the product.

(g) Turf fertilizer.--Subject to subsection (i), fertilizer

intended for use on turf that is distributed to end users in

this Commonwealth, in bulk or packages that are one pound or

greater, shall include a statement in legible and conspicuous

form that at a minimum sets forth the following requirements:

(1) The product may not be applied near water, storm

drains or drainage ditches.

(2) The product may not be applied if heavy rain is

expected.

(3) The product may only be applied to the intended

application site.

(4) Material that lands on an impervious surface must be

swept back onto the turf. This requirement shall not apply if

the product is applied in a liquid form.

(h) Nonturf fertilizer.--Subject to subsections (i) and (k),

fertilizer that is not labeled for turf, in bulk or packages

that are 40 pounds or greater, that is distributed to end users

in this Commonwealth, shall include a statement in legible and

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conspicuous form that at a minimum sets forth the following

requirements:

(1) The product may not be applied near water, storm

drains or drainage ditches or to any impervious surface.

(2) The product may not be applied if heavy rain is

expected.

(3) The product may only be applied to the intended

application site.

(i) Fertilizers containing pesticides.--In lieu of the

statements required under subsections (g) and (h), the label for

fertilizer products containing pesticides shall contain the

environmental hazard statement recommended by the Environmental

Protection Agency for that product.

(j) Minimum font size.--Statements required under

subsections (g) and (h) shall be printed in a legible and

conspicuous manner and may not be smaller than the height of the

font used for the directions for use on the product labeling.

(k) Exemption.--The requirements of subsections (g), (h) and

(j) shall not apply to fertilizer labeled for aquatic settings,

growing media, indoor use or potted plants.

(l) Prohibition.--The label for fertilizer or nitrogen-based

material shall not be labeled for the purposes of melting snow

or ice, unless the product is distributed to an airport to be

used on aircraft or areas an aircraft accesses.

(m) Other label information.--The department may, by

regulation, require additional information to be present on the

label or labeling of fertilizers.

§ 6815. Inspection fees.

(a) Amounts.--The guarantor whose name appears on the label

of a fertilizer distributed in this Commonwealth shall pay

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semiannually and not later than January 31 and July 31 of each

year an inspection fee at the rate of 17¢ per ton of fertilizer

distributed in this Commonwealth or a fee established in the

manner provided under section 6886 (relating to fees, fines and

civil penalties). In no case shall the inspection fee paid

semiannually amount to less than $25 or a fee established in the

manner provided under section 6886.

(b) Adjustment of fees by department.--

(1) Notwithstanding subsection (a), following notice to

registrants and licensees, if the department determines that

the money derived from the registration and inspection fees

are either greater or less than that required to administer

this chapter, the department may reduce or increase the

registration or inspection fee, or both, so as to maintain

revenues sufficient to administer this chapter.

(2) An inspection fee established under this subsection

may not be changed by more than 5¢ in one year.

(3) The department shall announce the adjustment of fees

by transmitting notice to the Legislative Reference Bureau

for publication in the Pennsylvania Bulletin. The adjusted

fees shall take effect 60 days after publication of the

notice in the Pennsylvania Bulletin.

§ 6816. Tonnage reports.

(a) Requirements.--The guarantor whose name appears on a

label shall submit, along with the requisite inspection fee, a

report in a manner prescribed by the department listing by

county the intended use and net tons of each brand and grade of

fertilizer distributed in this Commonwealth for the period

covered by the inspection fee. The department may promulgate

regulations to establish additional tonnage reporting

A02415 - 33 -

requirements.

(b) Multiple guarantors.--When more than one guarantor is

involved in the distribution of fertilizer, the guarantor who

distributed the fertilizer last shall report the tonnage and pay

the inspection fee, unless the report and payment have been made

by a prior distributor.

inspection fee, whichever is greater, or a fee established in

the manner provided under section 6886 (relating to fees, fines

and civil penalties), shall be imposed for a fee or report not

submitted at the required time.

(d) Examination permitted.--

(1) The department or its authorized representative may

examine the records of the guarantor to verify the

information contained in the reports filed with the

department.

(2) Reports containing fraudulent or incorrect

information shall be considered a violation of this chapter

for which the department may assess a penalty as provided for

in this chapter.

(e) Confidentiality of information.--

(1) Notwithstanding the act of February 14, 2008 (P.L.6,

No.3), known as the Right-to-Know Law, or its successor

statute, no proprietary information furnished to the

department under this section shall be disclosed in a way as

to knowingly or intentionally divulge a trade secret of a

person subject to the provisions of this chapter.

(2) This subsection shall not apply to information

furnished to a court or administrative tribunal in accordance

with law.

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§ 6817. Plant food deficiency.

(a) Penalties.--The following penalties shall be assessed

for deficiencies from the guaranteed analysis:

(1) A penalty payment of five times the commercial value

of each deficiency shall be assessed when the analysis shows

that a fertilizer is deficient if:

(i) one or more of its guaranteed primary plant

nutrients is beyond a tolerance of 10% (two unit

maximum); or

(ii) the overall index value of the primary

nutrients in the fertilizer is below 97.

(2) When a fertilizer is subject to a penalty payment

under paragraph (1)(i) and (ii), the larger penalty payment

shall apply. Any penalty assessed shall not exceed the retail

price of the lot of fertilizer represented by the official

sample.

(3) Deficiencies beyond the tolerance as established by

regulation in a component other than a primary nutrient shall

be evaluated by the department and shall be subject to a

penalty under this chapter.

(b) Payment of penalties.--Within 90 days following receipt

of the official report of analysis, the guarantor shall pay to

the consumer a deficiency penalty in the amount prescribed on

the report of analysis. Receipts of payment shall be promptly

forwarded by the guarantor to the department. If the consumer

cannot be found, the penalties shall be paid to the department.

official sample of fertilizer resulting from nonuniformity shall

not be deemed distinguishable from a deficiency due to actual

plant nutrient shortage and shall be deemed a violation of this

A02415 - 35 -

chapter for which the department may assess a penalty as

provided for in this chapter.

§ 6818. Commercial value.

For the purpose of determining the commercial value to be

applied under section 6817 (relating to plant food deficiency),

the department shall determine and publish annually a notice

transmitted to the Legislative Reference Bureau for publication

in the Pennsylvania Bulletin stating the values per pound of

total nitrogen, available phosphate and soluble potash in

fertilizers in this Commonwealth. The values published in the

Pennsylvania Bulletin shall take effect July 1 of each year and

be used in determining and assessing penalty payments.

§ 6819. Misbranding.

No person may distribute a misbranded fertilizer. A

fertilizer shall be deemed to be misbranded if any of the

following apply:

(1) Its labeling is false or misleading in any

particular.

(2) It is distributed under the name of another

fertilizer product.

(3) It is not labeled as required in section 6814

(relating to labels and labeling) and in accordance with

regulations prescribed under this chapter.

(4) It purports to be or is represented as a fertilizer

or is represented as containing a plant nutrient or

fertilizer, unless such plant nutrient or fertilizer conforms

to the definition of identity, if any, prescribed by

regulation.

(5) The label or labeling are in conflict with section

6852 (relating to application of fertilizer to turf).

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§ 6820. Adulteration.

No person may distribute an adulterated fertilizer product. A

fertilizer shall be deemed to be adulterated if any of the

following apply:

(1) It contains a deleterious or harmful substance in

sufficient amount to render it injurious to beneficial plant

life, animals, humans, aquatic life, soil or water when

applied in accordance with its intended use or directions for

use on the label.

(2) Adequate warning statements or directions for use

that may be necessary to protect plant life, animals, humans,

aquatic life, soil or water are not shown on the label.

(3) Its composition falls below or differs from that

which it is purported to possess by its labeling.

(4) It contains viable weed seed or unwanted crop seed

in amounts exceeding the limit that the department

establishes by regulation.

SUBCHAPTER C

APPLICATOR LICENSING AND CERTIFICATION

Sec.

6831. Licensing of fertilizer application businesses.

6832. Certification of applicators.

6833. Recertification of applicators.

6834. Reciprocal agreement.

6835. Training of fertilizer technicians.

6836. Process.

§ 6831. Licensing of fertilizer application businesses.

(a) Requirements.--

(1) A fertilizer application business must be licensed

prior to applying fertilizer and shall comply with the

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provisions of this chapter and any regulation or order of the

department.

(2) A fertilizer application business with more than one

location or place of business or operating under more than

one name in this Commonwealth shall license each location,

place of business and business entity.

(3) For a governmental or public entity, each district

or region shall be considered a separate business and shall

require a separate license.

(b) Operation, application and expiration.--

(1) A fertilizer application business may not be

operated without first obtaining a fertilizer application

business license.

(2) The application for licensure shall be on a form

furnished by the department and shall be accompanied by a

$100 application fee or a fee later established in the manner

under section 6886 (relating to fees, fines and civil

penalties).

(3) All business licenses shall expire on December 31

each year, except that the department may issue a license for

the following year when an initial license application is

filed during the last two months of a licensing year.

shall employ at all times and at each licensed business at least

one person who holds a current valid commercial applicator or

public applicator certification. This person shall be

responsible for training fertilizer technicians on the proper

handling and application of fertilizer.

(d) Fertilizer technicians.--A fertilizer application

business shall ensure fertilizer technicians do not apply

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fertilizer unless the persons have completed a training program

as described by section 6835 (relating to training of fertilizer

technicians).

(e) Record.--A fertilizer application business shall

maintain a record and provide to the department, upon request,

the following:

(1) A list of all certified applicators employed by the

business.

(2) A list of all fertilizer technicians employed by the

business and an attestation that each has completed a

training program meeting the requirements of section 6835.

The attestation shall be subject to the penalties for a

violation of 18 Pa.C.S. § 4904 (relating to unsworn

falsification to authorities).

(f) Notification.--A licensed fertilizer application

business shall notify the department in writing within 15 days

of a change in its license information, including the employment

status of its certified applicators and fertilizer technicians.

(g) License number display.--A fertilizer application

business shall prominently display on every vehicle involved in

the fertilizer application phase of its business the license

number assigned by the department. The number shall appear in

figures at least three inches high and be located on both sides

of the vehicle at a readily visible location in a contrasting

color.

(h) Aerial application.--If a fertilizer application

business or an applicator of fertilizer engages in aerial

applications, the applicant shall, upon request by the

department, provide proof of compliance with the Federal

Aviation Administration regulations as described in 14 CFR Pt.

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137 (relating to agricultural aircraft operations) or its

successor regulations.

§ 6832. Certification of applicators.

(a) Certification examination.--

(1) Any person required to be certified under this

chapter must take and pass a written examination developed or

approved by the department and administered by the department

or an agent of the department. The department may also

establish field testing requirements. All tests and

examinations shall be subject to examination fees established

by the department. Any person seeking certification shall

demonstrate minimum standard proficiency on the basis of a

written examination conducted at an approved test site under

direction of the department or its designated agent.

(2) Each applicant for certification shall demonstrate

knowledge and competence as to:

(i) Safety and health.

(ii) Labeling and label comprehension.

(iii) Environmental protection.

(iv) Equipment use, calibration and dosage

calculations.

(v) Personal protective equipment.

(vi) Cleaning and maintaining equipment.

(vii) Transportation, storage, security and

disposal.

(viii) Applicable Federal and State laws.

(ix) Any subject matter deemed appropriate by the

department through regulation.

(3) The department shall require a minimum examination

fee of $10 or a fee established in the manner specified under

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