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Proposed New Rule:  N.J.A.C. 2:71-7.5 

Proposed Amendments:  N.J.A.C. 2:71-7.1, 7.2 and 7.3

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

Authority:  N.J.S.A. 4:1-23  and 4:10-16 et seq.

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

Proposal Number:  PRN 2006-289.

Submit written comments by November 4, 2006 to:

Alfred W. Murray, Director
Division of Marketing and Development
New Jersey Department of Agriculture
P.O. Box 330
Trenton, New Jersey 08625‑0330

The agency proposal follows:

Summary

The Department of Agriculture is proposing amendments to the “Jersey Grown” rules at N.J.A.C. 2:71-7 to permit New Jersey Christmas tree growers to use the "Jersey Grown" logo in marketing their plant material.  The use of the "Jersey Grown" logo will permit New Jersey Christmas tree growers to make New Jersey grown Christmas trees more visible and help promote the viability of the industry by identifying the availability of a product that many believe to be superior.  Under the current “Jersey Grown” rules, cut Christmas trees are not eligible to use the “Jersey Grown” logo because they do not meet the definition of nursery stock. However, proposed new rule N.J.A.C. 2:71-5 is specifically designed to allow cut Christmas trees, including choose and cut operations, to participate in the “Jersey Grown” marketing program.

Pursuant to N.J.S.A. 4:1-23 and 4:10-16 et seq., the Department proposes to adopt and incorporate by reference the “United States Standards for Grades of Christmas Trees” §51.3085 through 51.3106, effective October 30, 1989 and reprinted January 1997, as amended and supplemented (hereinafter referred to as the “Christmas Tree Standards”).  The Christmas Tree Standards provides common techniques for measuring trees normally marketed as Christmas trees, specifying and stating the size of plants, the shape and the proper taper, and determining foliage density.  These rules thoroughly address all areas of concern in tree appearance and health and would help ensure that New Jersey consumers receive top quality Christmas trees.

N.J.A.C. 2:71-7.1, 7.2, and 7.3 are proposed to be amended to permit growers of cut Christmas trees to utilize the “Jersey Grown” logo.  Both N.J.A.C. 2:71-7.1 and 7.3 are proposed to be amended to specifically reference cut Christmas trees and to clarify that cut Christmas tree growers need not be licensed under N.J.A.C. 2:16.  N.J.A.C. 2:71-7.3 is proposed to be amended to specifically include the required growth time for Christmas trees, a minimum of four years in New Jersey.  The definition of “Christmas trees” was added to N.J.A.C. 2:71-7.2 to clarify which trees qualify for the “Jersey Grown” program, and the terms “grower” and “producer” were amended to clarify that “grower” refers only to the growers of cut Christmas trees, not nursery stock or plants, and “producer” applies only to growers of horticultural products, nursery stock, and plants.  Additional technical amendments were made in this subchapter to ensure that the term “Jersey Grown” was in quotations.  N.J.A.C. 2:71-7.3(k) and (p) have been amended to reflect these changes in definitions to ensure that both growers and producers are subject to penalty for violationsof this section. 

New N.J.A.C. 2:71-7.5 sets forth the standards required for cut Christmas trees to be eligible for sale under the “Jersey Grown” logo.  It specifically adopts and incorporates by reference the Christmas Tree Standards.  Those standards set forth four grades of Christmas trees:  “U.S. Premium,” “U.S. No. 1,” “U.S. No. 2,” and “Culls.”  Only those Christmas trees meeting or exceeding the requirements of grades “U.S. No.1” may use the “Jersey Grown” logo.  Sections 51.3086 through 51.3089 of the Christmas Tree Standards set forth the specific requirements for each grade, addressing attributes such as tree characteristics typical of the species, butt appearance, taper, freshness, cleanliness, healthiness, shapeliness, density, handle length, permissible amount of defects, size, and tolerance.  Size specifications and tolerance standards are set forth in §51.3090 and 51.3091, respectively.  The definitions applicable to these standards are set forth in §51-3092 through 51.4104.  A table containing the classification (description) of the types of defects is provided in §51.3105.  Finally, a metric conversion table is provided in §51.3106.

Four types of Christmas trees frequently sold as Christmas trees in New Jersey (Norway Spruce, Leyland Cypress, Southwestern White Pine, and Canaan Fir) are not referenced in the Christmas Tree Standards, and, therefore, do not have density standards delineated for these varieties.  Rather than exclude these varieties from participating in the “Jersey Grown” program, standards relating to density were developed using trees similar in form and growth characteristics to those mentioned in the Standards.  Norway Spruce density would be most similar to the other members of the spruce family, Leyland Cypress most closely resembles Red Cedar, Southwestern White Pine is a variety of the White Pine family, and Canaan Fir is similar to the Frasier Fir.  As a result, the densities of these trees were established in N.J.A.C. 2:71-7.5(c) accordingly. 

In addition to satisfying the conditions set forth in the Christmas Tree Standards, all Christmas trees marketed under the “Jersey Grown” program shall be propagated and/or be grown in New Jersey for a period of at least four years prior to retail sale. 

Individuals or entities seeking to be licensed, to maintain a license, or to renew a license must satisfy all the conditions set forth in N.J.A.C. 2:71-7.3, N.J.S.A. 4:10-5 and 4:10-14. If any provisions of N.J.S.A. 4:10-14 or N.J.A.C. 2:71-7 are violated, a penalty may be imposed not to exceed $50.00 for the first offense and not more than $100.00 for each subsequent offense. Violations of N.J.S.A. 4:10-5 are subject to a penalty of $50.00. Procedures are established for reapplying after license revocation, as well as revocation in the face of a second violation.

As the Department has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The “Jersey Grown” advertising and promotional program was developed to draw consumer attention to the availability of quality New Jersey plant products. This program is based on the “Jersey Fresh” promotional program, which has become the standard against which other states modeled their own marketing programs. As a result of the “Jersey Fresh” advertising and promotional program, New Jersey consumers are assured of the quality and freshness of the food they purchase.  In fact, a 1998 study conducted by Rutgers University (New Jersey Agricultural Experimental Station, P-02137-2-98, February 1998) confirmed that consumers view “Jersey Fresh” products as better quality agricultural products.

The proposed new rule and amendments will have a positive social impact by expanding the “Jersey Grown” advertising and promotional program to cut New Jersey Christmas trees, thereby helping to maintain an important segment of New Jersey agriculture. New Jersey farms, including those growing and selling Christmas trees, provide tax-paying open space and add diversity to the agricultural landscape that benefits the quality of life throughout the Garden State.  Cut Christmas trees bearing the “Jersey Grown” logo will enhance the promotion of these uniformly graded, high quality New Jersey cut Christmas trees to the benefit of growers and consumers.  Growers will gain new markets for their cut Christmas trees, while consumers will have a more quality product available.

Economic Impact

According to the 2001 Census of Agriculture, revenues of approximately $3,062,640 million are generated by New Jersey greenhouse, nursery and sod industries each year and are important contributions to the State's economy, particularly for rural communities. The proposed new rule and amendments will have a positive economic impact for New Jersey by providing an additional marketing tool for New Jersey producers of cut Christmas trees that choose to use the “Jersey Grown” logo on their products. There is no cost for anyone who does not participate in this voluntary program. For those who choose to participate, the cost is $30.00 per year for the annual registration fee, which will be offset by the value added to the product by use of the logo on the cut Christmas tree. Therefore, the proposed new rule and amendments will have a positive economic impact.  Additional costs may be incurred by individuals or entities that violate these rules and are subject to penalties as discussed in the Summary above.

Federal Standards Statement

Executive Order No. 27 (1994) and N.J.S.A. 52:14B-23 (P.L. 1995, c. 65) require administrative agencies which adopt, readopt, or amend any State rules that exceed any Federal standards or requirements to include in the rulemaking a comparison between the two sets of standards and an explanation of the costs and benefits associated with adopting a State standard that exceeds a Federal standard. Because there are no Federal standards governing the creation and regulation of a logo identifying New Jersey agricultural products, as provided by N.J.S.A. 4:10-1 et seq. and 4:10-16 et seq.            

Moreover, these rules specifically adopt the Federal Christmas Tree Standards governing Christmas tree quality grading and standards.  These standards do not address required growing locations, nor do they set forth density standards for trees not listed in its definition of “cut Christmas trees.”  As a result, the Department determined that it was necessary to add the requirement that Christmas trees marketed under the “Jersey Grown” logo must be grown in New Jersey for at least four years and to set forth density standards for four varieties of Christmas trees typically grown in New Jersey, but not listed in the Federal Christmas Tree Standards.  This location requirement is essential to ensure that Christmas trees marketed under the “Jersey Grown” logo were, in fact, grown in New Jersey.  Although the length of growth time for Christmas trees is longer than that required for nursery stock, this disparity is necessary because the propagation time for nursery stock is typically significantly shorter than that of a Christmas tree.

Since this new rule and amendments meet but do not exceed any Federal standards, except for the one discussed above, no Federal standards analysis is required.

Jobs Impact

It is not anticipated that the proposed new rule and amendments will result in the generation or loss of jobs. However, it is anticipated that the new rule and amendments will positively affect the New Jersey Christmas tree growers and others associated with the agricultural industry, averting the permanent loss of jobs.

Agriculture Industry Impact

The proposed new rule and amendments will have a positive impact on New Jersey agriculture by helping to maintain viable Christmas tree industry in the Garden State as described in the Social and Economic Impact Statements above.

Regulatory Flexibility Analysis

The proposed new rule and amendments have an impact on small businesses, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., primarily farmers.  

The proposed new rule and amendments will expand the “Jersey Grown” program to protect the interests of the cut Christmas tree industry by offering the use of the “Jersey Grown” logo to growers who are licensed by the Department to use the logo.   The use of uniform product identification promotes the orderly marketing of goods that are similar in the generic sense and allows equally good products from the small farm to compete with the products of larger operations.  Should a grower choose to participate under the voluntary rules, the cost of participating should be offset by higher prices received for the “Jersey Grown” product and by the valuable marketing program provided. 

Since the proposed new rule and amendments are part of a voluntary program, they do not impose unduly burdensome reporting or compliance requirements on either large or small businesses.  If this labeling is voluntarily undertaken, the grower must ensure that the labeling is accurate.  Other compliance requirements are set forth in the Summary and Economic Impact Statements above.  There are no recordkeeping requirements imposed under the proposed new rule and amendments, and the reporting requirements are minimal, as the reporting requirements are those connected with annual registration and logo and advertising layout.  The compliance and reporting requirements are necessary to protect public confidence in products purchased.  As a result, there can be no lesser or differing standards based on business size. 

There is no professional assistance required nor initial capital outlays to any business by the proposed new rule and amendments.  Although a small annual licensing fee of $30.00 is required, should a grower choose to participate under the voluntary rules, the cost of participating should be offset by the anticipated higher prices received for the “Jersey Grown” products.  Given the preponderance of small producers and the Program's purpose to promote high quality products, the Department has provided no lesser or differing requirements or exceptions based on business size.

Smart Growth Impact

The proposed new rule and amendments assist in the implementation of economic development strategies outlined in the Department's Smart Growth Plan. The proposed new rule and amendments are consistent with the State's smart growth goals as they encourage the continued viability of a sector of the State's agricultural industry. Continued viability of the Christmas tree industry preserves much needed open space in New Jersey.  Therefore, the Department anticipates that there will be a positive impact on the achievement of smart growth and the implementation of the State's Development and Redevelopment Plan.

Full textof the proposal follows (additions indicated in boldface thus and deletions indicated in brackets [thus]):

SUBCHAPTER 7. "JERSEY GROWN" LOGO

2:71-7.1 Scope and purpose

      A New Jersey producer who is certified pursuant to N.J.A.C. 2:16 to sell or distribute nursery stock or plant material is permitted to make application to the New Jersey Department of Agriculture for the use of the "Jersey Grown" logo in marketing their nursery stock and plant material.  In addition, a New Jersey grower who complies with the requirements set forth in N.J.A.C. 2:71-7.3 and 7.5 is permitted to make application to the New Jersey Department of Agriculture for the use of the “Jersey Grown” logo in marketing their cut Christmas trees.

2:71-7.2  Definitions

For the purposes of this subchapter, the following words and terms shall have the following meanings unless the context clearly indicates otherwise.

…

 “Cut Christmas tree”shall mean shearedstock of the coniferous species which are normally cut and marketed as Christmas trees or holiday trees and include the following species:

1.            Leyland Cypress (Cupressocyparis Leylandii);

2.            Douglas Fir (Pseudotsuga Menziesii).;

3.            Balsam Fir (Abies Balsamea);

4.            Canaan Fir (Abies Balsamea var. Phanerolepis);

5.            Red Fir (Abies Magnifica);

6.            White Fir (Abies Concolor);

7.            Fraser Fir (Abies Fraseri);

8.            Grand Fir (Abies Grandis);

9.            Noble Fir (Abies Procera);

10.            White Spruce (Picea Glauca);

11.            Blue Spruce (Picea Pungens);

12.            Norway Spruce (Picea Abies);

13.            Eastern Red Cedar (Juniperus Virginiana);

14.            Red Pine (Pinus Resinosa);

15.            White Pine (Pinus Strobus);

16.            Southwestern White Pine (Pinus Strobiformis);

17.            Virginia Pine (Pinus Virginiana); and

18.            Scotch Pine (Pinus Sylvestris).

“Grower” means, but is not limited to, any person who raises, grows, or propagates cut Christmas trees, whether for profit or other reasons, or whether outdoors or indoors. [any horticultural product, nursery stock, or plant.

"Producer" means a farmer who raises, grows, propagates [and] or maintains, for profit or other reasons, outdoors or indoors, any horticultural product, plant material or nursery stock in New Jersey.

2:71-7.3 Use of the "Jersey Grown" logo

(a) The New Jersey Department of Agriculture approves the use of “Jersey Grown” in conjunction with the New Jersey map symbol under provisions of N.J.S.A. 4:10-5 and 4:10-15 as an official emblem for identifying New Jersey produced plant material and cut Christmas trees.

(b) Persons, firms, partnerships, corporations or associations must first obtain a valid nursery certificate, issued by the Division of Plant Industry pursuant to N.J.A.C. 2:16, before applying to utilize the “Jersey Grown” logo[.] on plant material or nursery stock.  Persons, firms, partnerships, corporations or associations utilizing the “Jersey Grown” logo on cut Christmas trees need only be licensed in accordance with this section and comply with the requirements of N.J.A.C. 2:71-7.5.  No nursery certificate is needed.

(c) Only those persons, firms, partnerships, corporations or associations licensed to use the “Jersey Grown” logo shall be permitted to attach or have it imprinted upon any documents related to their nursery stock, plant material or cut Christmas trees or to employ its use in advertising or in any manner whatsoever. Layout of proposed advertising to be used for the marketing of “Jersey Grown” plants and nursery stock shall be submitted for approval by the Division of Marketing and Development, New Jersey Department of Agriculture, in advance of their manufacture and use.

(d) Any person, firm, partnership, corporation or association wishing to employ the “Jersey Grown” logo in marketing New Jersey produced plant material, [and] nursery stock, and cut Christmas trees shall make application to the New Jersey Department of Agriculture for a license to do so. The application shall be made in writing, upon a form provided by the Department for this purpose. The application shall reveal the name, address and nursery certificate of the user, the type of plant material, [or] nursery stock or cut Christmas tree for which the user is seeking a license and other such information as is deemed necessary for enforcement of the “Jersey Grown” program. The Department will hold confidential any information provided in the application which constitutes proprietary commercial or financial information, or is otherwise protected from disclosure under the Open Public Records Act, N.J.S.A. 4:1A-1 et seq., subject to the limitations set forth therein.

(e) -(h) (No change.)

(i) All nursery stock marketed under the ["]logo["] program shall be propagated and/or be grown in New Jersey for a period of at least six months under the conditions set forth in this section and N.J.A.C. 2:71-7.4.  All cut Christmas trees marked under the logo program shall be propagated and/or be grown in New Jersey for a period of at least four years prior to retail sale under the conditions set forth in N.J.A.C. 2:71-7.5.

(j) Any licensed producer using the “Jersey Grown” logo for nursery stock or plant material without satisfying the requirements set forth in this section and N.J.A.C. 2:71-7.4, any licensed grower using the “Jersey Grown” logo for cut Christmas trees without satisfying the requirements set forth in this section and N.J.A.C. 2:71-7.5, any unlicensed or uncertified producer or grower using the “Jersey Grown” logo, or anyone violating any provision of N.J.S.A. 4:10-14 shall be subject to a penalty of not more than $50.00 for the first offense and not more than $100.00 for each subsequent offense, except for violations of N.J.S.A. 4:10-5 which penalty shall be $50.00.

(k)  After the second violation of any part of this subchapter by the same licensed producer or grower during the same calendar year, the license to use the “Jersey Grown” logo shall be revoked for the remainder of the license year.

(l)   -  (o) (No change.)

(p)  Upon revocation of a license, a produceror grower may reapply for a license for the next license year.

2:71-7.5   Cut Christmas trees

  • (a)Pursuant to the authority of N.J.A.C. 1:30-2.2, the Department hereby adopts and incorporates by reference, the “United States Standards for Grades of Christmas Trees” §51.3085 through 51.3106, effective October 30, 1989 and reprinted January 1997, as amended and supplemented, as the standard for cut Christmas trees.  All cut Christmas trees utilizing the “Jersey Grown” logo shall meet or exceed the standards set forth at §51.3087 for grade “U.S. No.1.” 
  • (b)Copies of the “United States Standards for Grades of Christmas Trees” may be obtained from the following:

1.   U.S. Department of Agriculture, Agricultural Marketing Service, Fresh Products Branch Standardization Section, Fruit and Vegetable Programs, 1400 Independence Ave, SW Room 2065-S, Stop Code 0240, Washington, D.C.  20250-0240; 

2.   Online at the Agricultural Marketing Service website:  http://www.ams.usda.gov/standards/christtr.pdf

3.   The Director's office - Division of Marketing and Development, New Jersey Department of Agriculture, P.O. Box 330, Trenton, New Jersey 08625‑0330; or

4.   The Executive Secretary's office - New Jersey Christmas Tree Growers Association, P.O. Box 211, Stockton, NJ 08559.

(c)  Leyland Cypress, Norway Spruce, Southwestern White Pine and Canaan Fir, which are not listed in the “United States Standards for Grades of Christmas Trees,” shall comply with all listed standards with the exception of the density standards, defined at §51.3097, which shall be as follows:

      1.  Heavy Density:

            i.       Norway Spruce = 80 to 100 percent;

            ii.      Leyland Cypress = 90 to 100 percent;

            iii.      Southwestern White Pine = 90 to 100 percent; and

            iv.      Canaan Fir = 70 to 100 percent;

      2.  Medium Density:

            i.       Norway Spruce = 60 to 80 percent;

            ii.      Leyland Cypress = 70 to 90 percent;

            iii.      Southwestern White Pine = 70 to 90 percent; and

            iv.      Canaan Fir = 50 to 70 percent; and

      3.  Light Density:

            i.       Norway Spruce = 40 to 60 percent;

            ii.      Leyland Cypress = 50 to 70 percent;

            iii.      Southwestern White Pine = 50 to 70 percent; and

            iv.      Canaan Fir = 40 to 50 percent.

 

(d)  In addition to the requirements set forth in (a) above, all cut Christmas trees shall be grown in New Jersey for a period of at least four years prior to retail sale.

 

Charles M. Kuperus, Secretary

New Jersey Department of Agriculture
August 3, 2006