38-12A-1      Definition of terms.
38-12A-2      Label required for containers of agricultural seeds--Contents.
38-12A-3      Label required for containers of lawn and turf seed--Contents.
38-12A-4      Label required for containers of vegetable seeds in planting devices--Contents.
38-12A-5      Label required for containers of flower seeds or flower seeds in planting devices--Contents.
38-12A-6      Label required for containers of tree and shrub seeds--Contents--Exception.
38-12A-7      Contents of label for treated seed.
38-12A-8      Seed sold in bulk--Display of label on container--Customer copy--Exception.
38-12A-9      Seed test to determine label information.
38-12A-10      Exceptions to labeling requirements.
38-12A-11      Seed dealers permit required--Exception--Expiration--Fee.
38-12A-11.1      Seed fund established--Purpose--Appropriations.
38-12A-12      Contents of advertisement by person excepted from seed permit.
38-12A-13      Records of seed lots--File samples--Inspection--Use by secretary.
38-12A-14      Secretary provided copy of records and access to premises.
38-12A-15      Modification, revocation, or refusal to renew permit for violations.
38-12A-16      Unlawful sale, offer for sale, or transportation for sale of seed within state--Violation as misdemeanor.
38-12A-17      Additional prohibited acts--Violation as misdemeanor.
38-12A-18      Additional civil penalty.
38-12A-19      Powers of secretary.
38-12A-20      Promulgation of rules by secretary.
38-12A-21      Right of consumer to submit claim to arbitration.
38-12A-22      Right of seedsman, seed producer, or seed dealer to submit claim to arbitration--Statutes of limitations and legal proceedings tolled.
38-12A-23      Filing of complaint against seedsman, seed producer, or seed dealer--Time limitation--Filing of answer.
38-12A-24      Referring of complaint to arbitration committee--Discontinuation of investigation.
38-12A-25      Appointment of committee members--Election of chairman and secretary.
38-12A-26      Purpose of committee--Nonbinding report--Evidence in litigation.
38-12A-27      Session called by secretary or upon direction of chairman.
38-12A-28      Investigation by committee--Recommendation--Hearings.
38-12A-29      Investigation by majority of committee directed by chairman--Summary.
38-12A-30      Members not compensated--Reimbursement for expenses.
38-12A-31      Federal permits for introduction of organisms and products produced through genetic engineering authorized for use in state.

38-12A-1. Definition of terms.

Terms used in this chapter mean:

(1)    "Advertisement," all representation, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this chapter;

(2)    "Agricultural seeds," the seeds of grass, forage, cereal, oil, fiber, and other kinds of crop seed commonly recognized within this state as agricultural seed and combinations of such seeds;

(3)    "Certified seed," any seed of specific genetic purity and identity that has been officially certified by a certifying agency;

(4)    "Certified seed technologist," any seed technologist who has been certified by the Association of Official Seed Analysts;

(5)    "Certifying agency," an agency authorized by chapter 38-11 to officially certify seed to assure the genetic purity and identity of the seed certified;

(6)    "Conditioning," drying, cleaning, scarifying, and other operations which could change the purity or germination of the seed and require the seed lot to be retested to determine the label information;

(7)    "Consumer," any person who purchases or otherwise obtains seed for sowing, but not for resale;

(8)    "Dormant seed," any viable seed, other than hard seed, which fails to germinate when provided favorable conditions for the kind of seed in question;

(9)    "Flower seed," the seeds of herbaceous plants grown for their blooms, ornamental foliage, or other ornamental parts and commonly known and sold under the name flower seeds in this state;

(10)    "Germination," the emergence and development from the seed embryo of those essential structures which are indicative of the ability to produce a normal plant under favorable conditions;

(11)    "Hard seed," any seed which remains hard at the end of a prescribed germination test period because it has not absorbed water due to an impermeable seed coat;

(12)    "Hybrid," includes the first generation seed of a cross produced by controlling the pollination and by combining:

(a)    Two or more inlines;

(b)    One inbred or single cross with an open pollinated variety;

(c)    Two varieties or species, except open-pollinated varieties of corn (Zea mays). Subsequent generations from such crosses may not be regarded as hybrids. Hybrid designations shall be treated as variety names;

(13)    "Inert matter," all matter not seed which includes broken seeds, sterile florets, chaff, fungus bodies, and other material;

(14)    "Kind," one or more related species or subspecies which singly or collectively is known by one common name;

(15)    "Label," a tag or other written, printed or graphic representations, in any format whatsoever, accompanying or pertaining to any seed, whether in bulk or in containers purporting to set forth the information required on the label by this chapter;

(16)    "Lawn and turf seeds," the seeds of grass commonly grown for ornamental purposes and commonly known and sold as lawn and turf seed;

(17)    "Lot," a definite quantity of seed identified by a lot number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear in the labeling;

(18)    "Mixture," a seed lot consisting of more than one kind;

(19)    "Prohibited noxious weed seed," any weed seed which is prohibited from being present in seed, such as the seeds of weeds which are highly destructive and difficult to control by good cultural practice and the use of herbicides;

(20)    "Pure seed," seed, exclusive of inert matter, and all other seed not of the kind or variety being considered;

(21)    "Record," any and all information which relates to the origin, transport, treatment, germination, purity, kind, and variety of each lot of seed sold in this state. Such information includes seed samples and records of declaration, labels, purchases, sales, conditioning, bulking, treatment, handling, storage, analyses, tests, and examinations;

(22)    "Registered seed technologist," any seed technologist who has been certified by the society of commercial seed technologists;

(23)    "Restricted noxious weed seed," any weed seeds which are highly objectionable and difficult to control in specific crops, fields, lawns, and gardens of this state and which can be generally controlled by good cultural practices or the use of herbicides;

(24)    "Secretary," secretary of the Department of Agriculture and Natural Resources;

(25)    "Seed," all propagation materials, within the context of this chapter ultimately intended for planting purposes;

(26)    "Seed dealer," any person who exposes seed for sale, maintains an unsold inventory and sells seed, or takes and fills orders for seed for a seedsman or seed producer but does not condition or label seed;

(27)    "Seedsman," any person who purchases, conditions, labels, or sells seed as a major part of his business;

(28)    "Seed producer," any person who labels and sells seed only of his own production;

(29)    "Seizure," a legal process carried out by a court order pertaining to a definite amount of seed;

(30)    "Stop sale," an administrative order provided by law, restraining the sale, use, disposition, and movement of a definite amount of seed;

(31)    "Tetrazolium test or TZ test," a chemical test which indicates seed viability;

(32)    "Treated seed," any seed that has received an application of a substance or that has been subjected to a procedure or coating, for which a claim is made or which is designed to reduce, control, or repel disease organism, insects or other pests which attack seed or seedlings;

(33)    "Tree and shrub seeds," the seeds of woody plants commonly known and sold as tree and shrub seeds in this state;

(34)    "Tolerance," the allowable deviation from any figure used on a label to designate the percentage of any component or the number of seeds given for the lot in question and is based on the law of normal variation from a mean;

(35)    "Variety," a subdivision of a kind characterized by growth, yield, plant, fruit, seed, or other characteristics, by which it can be differentiated from other plants of the same kind;

(36)    "Vegetable seed," the seeds of those crops which are grown in gardens and on truck farms and are generally known and sold under the name of vegetable or herb seed in this state;

(37)    "Weed seeds," any seed of plants commonly recognized as weeds within this state including prohibited and restricted noxious weed seeds.

Source: SL 1988, ch 314, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-12A-2. Label required for containers of agricultural seeds--Contents.

Each container of agricultural seed which is sold, offered for sale, or exposed for sale, held for storage, or transported within this state with the intent to sell for sowing purposes shall bear or have attached in a conspicuous place a plainly written or printed label giving the following information:

(1)    The name of the kind or kind and variety or kind and "variety not stated" for each agricultural seed component in excess of five percent of the whole and the percentage by weight of each in order of its predominance. Mixtures shall be listed on the label using the term "mixture," "mixed," or "mix";

(2)    Hybrids shall be labeled as hybrids except if the pure seed contains less than seventy-five percent hybrid seed. If the percentage of the hybrid seed is greater than seventy-five percent, but less than ninety-five percent, the percentage of hybrid shall be labeled parenthetically following the variety;

(3)    Lot number or other lot identification;

(4)    Origin as to state or foreign country, if known, of perennials when grown in this state. If unknown, the label shall state that the origin is unknown;

(5)    Percentage by weight of all weed seed;

(6)    Name and rate of occurrence of each kind of restricted noxious weed seed, listed under the heading "noxious weed seeds";

(7)    Percentage by weight of agricultural seeds other than those required to be named on label, listed under the heading "Other Crop";

(8)    Percentage by weight of inert matter;

(9)    For each named agricultural seed:

(a)    Percentage of germination, exclusive of hard and dormant seed;

(b)    Percentage of hard and dormant seed, if present;

(c)    The additional statement "total germination and hard and dormant seed" may be stated if desired;

(d)    The calendar month and year the test was completed to determine such percentages;

(10)    Tetrazolium tests may be substituted for germination tests for the kinds and time prescribed by the secretary in accordance with § 38-12A-20;

(11)    Name and address of the seedsman or seed producer who labeled the seed.

Source: SL 1988, ch 314, § 2.

38-12A-3. Label required for containers of lawn and turf seed--Contents.

Each container of lawn and turf seed which is sold, offered for sale, or exposed for sale, held for storage, or transported within this state with the intent to sell for sowing purposes shall bear or have attached in a conspicuous place a plainly written or printed label giving the following information:

(1)    The name of the kind or kind and variety for each lawn and turf seed component in excess of five percent of the whole and the percentage by weight of each in order of its predominance. Mixtures shall be listed on the label using the term "mixture," "mixed," or "mix";

(2)    Lot number or other lot identification;

(3)    Percentage by weight of all weed seed;

(4)    Name and rate of occurrence of each kind of restricted noxious weed seed, listed under the heading "noxious weed seeds";

(5)    Percentage by weight of crop seeds other than those required to be named on label, if present, listed under the heading "other crop";

(6)    Percentage by weight of inert matter;

(7)    For each named lawn and turf seed:

(a)    Percentage of germination, exclusive of hard and dormant seed;

(b)    Percentage of hard and dormant seed, if present;

(c)    The calendar month and year the test was completed to determine such percentages, or an expiration date, or the year for which the seed was packed for sale listed as "packed for __________";

(8)    Name and address of the seedsman or seed producer who labeled the seed.

Source: SL 1988, ch 314, § 3.

38-12A-4. Label required for containers of vegetable seeds in planting devices--Contents.

Each container of vegetable seeds, or of vegetable seeds in preplanted containers, mats, tapes, or other planting devices, which is sold, offered for sale, or exposed for sale, held for storage, or transported within this state with the intent to sell for sowing purposes shall bear or have attached in a conspicuous place a plainly written or printed label giving the following information:

(1)    The name of the kind and variety for each vegetable seed component in excess of five percent of the whole and the percentage by weight of each in order of its predominance. Mixtures shall be listed on the label using the term "mixture," "mixed," or "mix."

(2)    Hybrids shall be labeled as hybrid except if the pure seed contains less than seventy-five percent hybrid seed. If the percentage of hybrid seed is greater that seventy-five percent but less than ninety-five percent the percentage of hybrid shall be labeled parenthetically following the variety;

(3)    Lot number or other lot identification;

(4)    Percentage by weight of all weed seed when present;

(5)    Name and rate of occurrence of each kind of restricted noxious weed seed if present, listed under the heading "noxious weed seeds";

(6)    Name and address of the seedsman or seed producer who labeled the seed;

(7)    For vegetable seeds in packets as prepared for use in home gardens or household plantings or vegetable seeds in preplanted containers, mats, tapes, or other planting devices:

(a)    The year for which the seed was packed for sale as "packed for ______" or the percentage germination and the calendar month and year the test was completed to determine such percentage, or an expiration date;

(b)    For vegetable seeds which germinate less than the standards prescribed by the secretary pursuant to § 38-12A-20:

(i)    Percentage of germination, exclusive of hard and dormant seed;

(ii)    Percentage of hard and dormant seed, if present;

(iii)    The words "Below standards" in not less than eight-point type;

(c)    For seeds placed in a germination medium, mat, tape, or other device in such a way as to make it difficult to determine the quantity of seed without removing the seeds from the medium, mat, tape, or device, a statement to indicate the minimum number of seeds in the container;

(8)    For each named vegetable seed in containers other than packets prepared for use in home gardens or household plantings and other than preplanted containers, mats, tapes, or other planting devices:

(a)    Percentage germination exclusive of hard and dormant seed;

(b)    Percentage of hard and dormant seed, if present;

(c)    The calendar month and year the test was completed to determine such percentages.

Source: SL 1988, ch 314, § 4; SL 1989, ch 30, § 66.

38-12A-5. Label required for containers of flower seeds or flower seeds in planting devices--Contents.

Each container of flower seeds or flower seeds in preplanted containers, mats, tapes, or other planting devices which are sold, offered for sale, or exposed for sale, held for storage, or transported within this state with the intent to sell for sowing purposes shall bear or have attached in a conspicuous place a plainly written or printed label giving the following information:

(1)    The name of the kind and variety for each flower seed or a statement of type and performance characteristics. Mixtures shall be listed on the label using the term "mixture," "mixed," or "mix";

(2)    Hybrids shall be labeled as hybrids except if the pure seed contains less than seventy-five percent hybrid seed. If the percentage of hybrid seed is greater than seventy-five percent but less than ninety-five percent, the percentage of hybrid shall be labeled parenthetically following the variety;

(3)    The percentage by weight of pure seed, except this may be omitted if that percentage meets standards prescribed by the secretary pursuant to § 38-12A-20;

(4)    Lot number or other lot identification;

(5)    Percentage by weight of all weed seed when present in flower seed;

(6)    Name and rate of occurrence of each kind of restricted noxious weed seed if present, listed under the heading "noxious weed seeds";

(7)    The year for which the seed was packed for sale listed as "Packed for ____," or the month and the year the percentages for germination were determined by test, or an expiration date;

(8)    For flower seeds for which standard testing procedures are prescribed and which germinate less than the standard prescribed by the secretary pursuant to § 38-12A-20, the percentage of germination exclusive of hard and dormant seeds and the words "below standard" in not less that eight-point type;

(9)    The name and address of the seedsman or seed producer who labeled the seed;

(10)    For seeds placed in a germination medium, mat, tape or other device in such a way as to make it difficult to determine the quantity of seed without removing the seed from the medium, mat, tape, or device, a statement to indicate the minimum number of seeds in the container.

Source: SL 1988, ch 314, § 5.

38-12A-6. Label required for containers of tree and shrub seeds--Contents--Exception.

Each container of tree and shrub seed which is sold, offered for sale, or exposed for sale, or transported within this state for sowing purposes shall bear thereon or have attached hereto in a conspicuous place a plainly written or printed label or tag, giving the following information. However, labeling of tree and shrub seed supplied under contractual agreement may be by invoice accompanying the shipment or by an analysis tag attached to the invoice if each bag or other container is clearly identified by a lot number stenciled on the container or on the invoice if the seed is in bulk. Each bag or container that is not so identified must carry complete labeling:

(1)    Common name of the species of seed and subspecies, if appropriate;

(2)    The scientific name of the genus and species and subspecies, if appropriate;

(3)    Lot number or other lot identification;

(4)    Origin;

(a)    For seed collected from a predominantly indigenous stand, the area of collection given by latitude and longitude, or geographic description, or political subdivision such as state or county;

(b)    For seed collected from other than a predominantly indigenous stand, identify the area of collection and the origin of the stand or state "origin not indigenous";

(5)    Purity as a percentage of pure seed by weight;

(6)    For those species for which standard germination testing procedures are prescribed by the secretary pursuant to § 38-12A-20, the following:

(a)    Percentage germination exclusive of hard and dormant seed;

(b)    Percentage of hard and dormant seed, if present;

(c)    The calendar month and year the test was completed to determine such percentages.

In lieu of germination information the seed may be labeled "Test is in process, results shall be supplied upon request";

(7)    For those species for which standard germination testing procedures have not been prescribed, the calendar year in which the seed was collected;

(8)    The name and address of the seedsman or seed producer who labeled the seed.

Source: SL 1988, ch 314, § 6.

38-12A-7. Contents of label for treated seed.

For all named seed which is treated, for which a separate label may be used, the label shall contain:

(1)    A word or statement to indicate that the seed has been treated;

(2)    The commonly accepted, coined, chemical, or abbreviated generic chemical name of the applied substance;

(3)    The caution statement "Do not use for food, feed, or oil purposes" if the treatment or coating is present in an amount that is harmful to human or other vertebrate animals;

(4)    In addition, for highly toxic substances, a poison statement or the skull and crossbones symbol shall be shown on the label;

(5)    A word or statement describing the purpose for a treatment if the treatment is not of pesticide origin;

(6)    The date beyond which the inoculant is no longer considered effective if the seed is treated with an inoculant, listed on the label as "Inoculant expires (month and year)" or wording that conveys the same meaning;

(7)    The percentage by weight of coating in each container;

(8)    The percentage by weight of pure seed with coating material removed.

The percentage of germination on coated seed shall be labeled on the basis of a determination made on at least four hundred pellets or capsules, whether or not they contain seed.

Source: SL 1988, ch 314, § 7.

38-12A-8. Seed sold in bulk--Display of label on container--Customer copy--Exception.

If seed is offered or exposed for sale in bulk or sold from bulk, the label information requested by §§ 38-12A-2 to 38-12A-7, inclusive, shall be conspicuously displayed on the container or bin. A copy of the label or label information shall be presented to the consumer upon sale except for sale of lawn and turf, vegetable, or flower seed when weighed or measured from bulk in the presence of the consumer.

Source: SL 1988, ch 314, § 8.

38-12A-9. Seed test to determine label information.

Information on a label shall be determined by a seed test conducted by an official state or federal seed laboratory or under the supervision of a registered or certified seed technologist. However, any person may conduct seed tests in his own laboratory to determine label information for his own seed without the supervision of a registered or certified seed technologist.

Source: SL 1988, ch 314, § 9.

38-12A-10. Exceptions to labeling requirements.

The provisions of §§ 38-12A-2 to 38-12A-6, inclusive, do not apply to:

(1)    Seed or grain not intended for sowing purposes;

(2)    Seed in storage in or being transported or consigned to a conditioning establishment for conditioning, provided that the invoice or labeling accompanying any lot of seed bears the statement "seed for conditioning" and provided that any labeling or other representation which may be made with respect to the unconditioned seed shall be subject to this chapter;

(3)    Seed which is in the possession of a seedsman or seed producer and has been conditioned or carried over from a previous sales season or is being transported to another seedsman provided that the seed is not exposed to consumers and that either a test to determine label information is in progress or that the records or a representative label with or accompanying each lot contain current label information;

(4)    Any carrier with respect to seed transported or delivered for transportation in the ordinary course of its business as a carrier, provided that the carrier is not engaged in producing, conditioning, or marketing seeds subject to this chapter;

(5)    A farmer, when certain large or coarse seeds prescribed by the secretary pursuant to § 38-12A-20 that do retain their identity are grown, sold and delivered by that farmer on his own premises to a seedsman or consumer. Such seeds, if taken to community sales for sale or if publicly advertised for sale or containing "noxious weeds" shall be labeled in accordance with this chapter.

Source: SL 1988, ch 314, § 10.

38-12A-11. Seed dealers permit required--Exception--Expiration--Fee.

No person may sell, distribute, advertise, solicit orders for, offer for sale, expose for sale, or transport seed without first obtaining from the Department of Agriculture and Natural Resources a permit to engage in the business. No permit is required of any person selling or advertising seed of the person's own production in South Dakota, if the seed is stored or delivered to a purchaser only on or from the farm or premises where grown or the production and sale of seed is not a primary endeavor and primary source of income to such persons. Each permit shall expire on the thirty-first day of December of the year following the date of issue. The biennial fee for a seed permit is: Seedsman-- five hundred dollars; Seed producer-- seventy-five dollars; Seed dealer-- seventy-five dollars.

Source: SL 1988, ch 314, § 11; SL 2001, ch 215, § 1; SL 2009, ch 197, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-12A-11.1. Seed fund established--Purpose--Appropriations.

Fees collected pursuant to this chapter shall be deposited with the state treasurer in a special revenue fund known as the seed fund. This fund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and the fees received pursuant to this chapter. The fund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the seed program. Expenditures from the fund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature.

Source: SL 2001, ch 215, § 2.

38-12A-12. Contents of advertisement by person excepted from seed permit.

Any person excepted from a seed permit pursuant to § 38-12A-11 who advertise seed in this state shall comply with this chapter. The advertisement shall include but not be limited to:

(1)    Kind, or kind and variety, or kind and "variety not stated";

(2)    Percentages of purity and germination;

(3)    The percentage by weight of other crop seed, if present;

(4)    The rate of occurrence of any restricted noxious weed seed, if present;

(5)    The percentage by weight of all weed seed, if present;

(6)    The name and telephone number or the name and address of the person commissioning the advertisement.

Source: SL 1988, ch 314, § 12.

38-12A-13. Records of seed lots--File samples--Inspection--Use by secretary.

Each seedsman or seed producer whose name appears on the label as handling seed subject to this chapter shall keep for a period of three years after final disposition complete records of each lot of seed handled and keep for one year after final disposition a file sample of each lot of seed. Each seed dealer who handles seed shall keep, for a period of one year after final disposition, complete records of each lot of seed handled. Seed dealers do not have to keep file samples. All records and samples pertaining to the lots of seed involved shall be accessible for inspection by the secretary or his agent during normal business hours. Information obtained from records and from applications shall be for the sole use of the secretary in carrying out the provisions of this chapter.

Source: SL 1988, ch 314, § 13.

38-12A-14. Secretary provided copy of records and access to premises.

Upon acknowledgment of signature of application for seed permit, each applicant shall agree to provide the secretary with a legible copy of any records, and access during customary business hours to premises where seed is sold, handled, or stored.

Source: SL 1988, ch 314, § 14.

38-12A-15. Modification, revocation, or refusal to renew permit for violations.

After a hearing conducted pursuant to chapter 1-26, the department may modify, revoke, or refuse to renew a permit issued under this chapter if the applicant is in violation of or continues to violate any provision of this chapter.

Source: SL 1988, ch 314, § 15.

38-12A-16. Unlawful sale, offer for sale, or transportation for sale of seed within state--Violation as misdemeanor.

It is unlawful for any person to sell, offer for sale, expose for sale, or transport for sale any seed within this state:

(1)    Unless a test to determine the percentage of germination has been made within specified time limits prescribed by the secretary pursuant to § 38-12A-20, or the seed is sold only in the year for which the label states that it was packed, or the seed is sold before the expiration date stated on the label;

(2)    Which is not labeled in accordance with the provisions of this chapter;

(3)    Which has a false, misleading, or incomplete label;

(4)    Which a false or misleading advertisement has been used in respect to its sale;

(5)    Which contains prohibited noxious weed seeds in any amount;

(6)    Which consists of or contains restricted noxious weed seeds in excess of standards prescribed by the secretary pursuant to § 38-12A-20, or in excess of the number declared on the label attached to the container of the seed or associated with the seed;

(7)    Which contains weed seeds in excess of standards prescribed by the secretary pursuant to § 38-12A-20, or in excess of the amount declared on the label;

(8)    If any label or advertisement represents such seed to be certified unless the certification has been determined by an official certifying agency and the seed bears an official label issued for the seed by that agency stating that the seed is certified;

(9)    If a United States certificate of plant variety protection has been applied for or issued in accordance with the plant variety protection act for the kind and variety being sold, except with the approval of the owner of the variety or except by variety name as a class of certified seed in accordance with Title V of the Federal Seed Act.

A violation of this section is a Class 1 misdemeanor.

Source: SL 1988, ch 314, § 16.

38-12A-17. Additional prohibited acts--Violation as misdemeanor.

It is unlawful for any person:

(1)    To alter or deface any label so that the information is false or misleading or to mutilate any label;

(2)    To use in any manner any disclaimer, limited warranty or nonwarranty of information provided on a label pursuant to §§ 38-12A-2 to 38-12A-7, inclusive;

(3)    To disseminate any false or misleading advertisements concerning seed;

(4)    To issue any statement, invoice or declaration as to the variety or certification of any seed which is false or misleading;

(5)    To issue any statement or declaration identifying a lot of seed by variety name if the label states "variety not stated";

(6)    To hinder or obstruct the secretary or an authorized agent in the performance of official duties under this chapter;

(7)    To fail to comply with a "stop sale" order, or to move or otherwise handle or dispose of any quantity of seed held under a "stop sale" order, or a stop sale tag attached thereto, except with express permission of the agent who issued the stop sale in writing and except for the purpose specified therein;

(8)    To plant seed which the person knows contains a prohibited noxious weed seed or restricted noxious weed seed in excess of the standards for that seed.

A violation of this section is a Class 1 misdemeanor.

Source: SL 1988, ch 314, § 17.

38-12A-18. Additional civil penalty.

In addition to the criminal penalties imposed under this chapter, a person is subject to a further civil penalty to the State of South Dakota as prescribed by the secretary pursuant to § 38-12A-20 not to exceed ten times the retail value of any seed involved in the violation or a maximum of one thousand dollars per violation.

Source: SL 1988, ch 314, § 18.

38-12A-19. Powers of secretary.

The secretary may:

(1)    Enter upon any public or private premises during regular business hours in order to have access to seeds and to the records subject to this chapter;

(2)    Inspect, sample, make analysis of, and test seeds to the extent necessary to determine whether the seeds are in compliance with this chapter;

(3)    Inspect the records of seeds to the extent necessary to determine whether the seeds are in compliance with this chapter;

(4)    Establish and maintain a seed laboratory for seed testing or to cooperate with other persons, agencies or institutions in seed testing and reporting of results;

(5)    Employ qualified persons, and to incur such expenses as may be necessary to comply with the provisions of this chapter;

(6)    Issue and enforce a written or printed "stop sale" order to the owner or custodian of any lot of seed which is in violation of any of the provisions of this chapter. The order shall prohibit further sale, conditioning, and movement of the seed, except on approval of the agent issuing the stop sale or the secretary, until the secretary has evidence that the law has been complied with and has issued a "Release From Stop Sale" order for the seed;

(7)    Request from a court of competent jurisdiction and carry out a seizure on any lot of seed for which a stop sale order has been issued and the person having responsibility has failed to abide by the stop sale order. The court shall order disposition of the seed after any criminal or civil proceedings are terminated;

(8)    Cooperate with the United States Department of Agriculture, regulatory agencies of other states, and other agencies of this state in seed law enforcement.

Source: SL 1988, ch 314, § 19.

38-12A-20. Promulgation of rules by secretary.

The secretary may promulgate rules, pursuant to the provisions of chapter 1-26, which are consistent with the following:

(1)    To provide application forms for seed permits;

(2)    To provide for procedures for contested cases;

(3)    To designate which weed seeds are prohibited or restricted;

(4)    To establish standards for sampling, inspecting, analyzing, and testing seeds;

(5)    To establish the tolerances to be used;

(6)    To establish which kinds of seed have to be labeled as to variety, variety not stated, type or performance characteristics;

(7)    To establish standards for allowable weed seed or restricted noxious weed seed;

(8)    To establish the length of time for which a germination test shall be acceptable;

(9)    To establish standards for percentage of germination and inert matter;

(10)    To establish which seeds a farmer can produce and sell without a label;

(11)    To establish which seeds are subject to specific labeling and germination requirements;

(12)    To establish standards for enforcement of plant variety protection;

(13)    To provide procedures for releasing seed from stop sales;

(14)    To establish standards for imposing civil penalties;

(15)    To establish standards for labels;

(16)    To establish standards for size of file samples;

(17)    To establish procedures and standards for the arbitration committee and the arbitration process;

(18)    To establish standards for the sale, transportation, storage, planting, disposal, or other use of seed and for the posting of planted sites and notification of seed use.

Source: SL 1988, ch 314, § 20; SL 2005, ch 211, § 1.

38-12A-21. Right of consumer to submit claim to arbitration.

If any consumer is damaged by the failure of seed to produce or perform as represented by the label attached to the seed, or by warranty, or as a result of negligence, the consumer shall have the right to submit the claim to arbitration as provided in this chapter. The filing of a claim for arbitration is not a prerequisite to the consumer's right to maintain a legal action.

Source: SL 1988, ch 314, § 21.

38-12A-22. Right of seedsman, seed producer, or seed dealer to submit claim to arbitration--Statutes of limitations and legal proceedings tolled.

The seedsman, seed producer, or seed dealer shall also have the right to submit a claim to arbitration if conspicuous language calling attention to the requirement for arbitration is referenced or included on the label or otherwise conspicuously attached or printed on the container. Any applicable statutes of limitation and legal proceedings shall be tolled and stayed pending the outcome of the arbitration proceedings.

Source: SL 1988, ch 314, § 21A.

38-12A-23. Filing of complaint against seedsman, seed producer, or seed dealer--Time limitation--Filing of answer.

The consumer shall make a signed complaint against the seedsman, seed producer, or seed dealer alleging that damages may have been sustained. The consumer shall file the complaint with the secretary and shall send a copy of the complaint to the seedsman, seed producer, or seed dealer by United States registered mail. Except in case of seed which has not been planted the claim shall be filed within such time as to permit effective inspection of the plants under field conditions. Within five working days after receipt of a copy of complaint, the seedsman, seed producer, or seed dealer shall file with the secretary his answer to the complaint and send a copy to the consumer by United States registered mail.

Source: SL 1988, ch 314, § 22.

38-12A-24. Referring of complaint to arbitration committee--Discontinuation of investigation.

The secretary shall refer the complaint and the answer to the arbitration committee for investigation, findings, and recommendation on the matters complained of. Upon receipt of same, the secretary shall transmit the findings and recommendation of the arbitration committee to the consumer and to the seedsman, seed producer, or seed dealer by United States registered mail. The investigation of the committee may be discontinued at any time if the consumer and the seedsman, seed producer, or seed dealer satisfy the complaint and the consumer requests that it be withdrawn.

Source: SL 1988, ch 314, § 23.

38-12A-25. Appointment of committee members--Election of chairman and secretary.

The secretary shall appoint an arbitration committee composed of five members and five alternate members.

One member and one alternate member shall be appointed upon recommendation of each of the following:

(1)    Director of extension at South Dakota State University;

(2)    Director of the agriculture experiment station at South Dakota State University;

(3)    President, South Dakota Seed Trade Association;

(4)    President, a farmer organization as the secretary may determine to be appropriate;

(5)    Secretary, Department of Agriculture and Natural Resources.

Each member and alternate shall continue to serve until replaced by the secretary. Each alternate member shall serve only in the absence of the member for whom he is an alternate. The committee shall elect a chairman and a secretary from its membership. The chairman shall conduct all meetings and deliberations held by the committee and direct all other activities of the committee. The secretary shall keep accurate and correct records on all meetings and deliberations and perform other duties for the committee as directed by the chairman.

Source: SL 1988, ch 314, § 24; SL 1989, ch 30, § 66A; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-12A-26. Purpose of committee--Nonbinding report--Evidence in litigation.

The purpose of the arbitration committee is to assist consumers and seedsmen, seed producers, and seed dealers in determining the validity of complaints made by consumers and recommend total money damages resulting from alleged failure of seed to produce as represented by label on the seed package. Any report of the arbitration committee is nonbinding. The consumer or the seedman, seed producer, or seed dealer may offer the report as evidence in any litigation.

Source: SL 1988, ch 314, § 25.

38-12A-27. Session called by secretary or upon direction of chairman.

The arbitration committee may be called into session by the secretary or upon the direction of the chairman to consider matters referred to it by the secretary.

Source: SL 1988, ch 314, § 26.

38-12A-28. Investigation by committee--Recommendation--Hearings.

When the secretary refers a complaint to the arbitration committee, the committee shall make a full and complete investigation and report its findings and its recommendation to the secretary and the parties within sixty days of the referral or at a later date as agreed to by the consumer and the seedsman, seed producer or seed dealer. All hearings shall be conducted in the county in which the seed was planted, unless otherwise agreed by the parties.

Source: SL 1988, ch 314, § 27.

38-12A-29. Investigation by majority of committee directed by chairman--Summary.

An investigation may be made by not less than a majority of the membership of the arbitration committee by written directive of the chairman. The investigation shall be summarized in writing and considered by the entire committee in reporting its findings and making its recommendation.

Source: SL 1988, ch 314, § 28.

38-12A-30. Members not compensated--Reimbursement for expenses.

The members of the arbitration committee shall receive no compensation for the performance of their duties, but the members of the committee shall be reimbursed for expenses when they attend a meeting or perform a service in conformity with the requirements of this chapter. The expenses shall be paid by the party demanding arbitration under the provisions of this chapter.

Source: SL 1988, ch 314, § 29.

38-12A-31. Federal permits for introduction of organisms and products produced through genetic engineering authorized for use in state.

Any holder of a permit issued pursuant to 7 CFR 340, as amended to January 1, 2004, is authorized to use the permit in South Dakota.

Source: SL 2004, ch 257, § 1.