Maturing Cover Crops: Can I Sell the Seed?

By Zachary Larson

With patterns of intermittent rainfall in the forecast, farmers may face less than ideal widows to harvest small grain silage. As those small grains approach maturity and forage quality diminishes, one strategy is to let them mature and harvest the seed. While this can be a means of utilizing an unharvested crop, some attention needs to be paid to the practice, especially if you plan on selling some or all of your seed. Federal and state laws are in place to ensure that seed buyers are obtaining a known quality of product, and these laws must be considered if you plan on selling small grains as cover crop seed.

If you're considering keeping or selling seed, the first thing you must determine is if what you have in the field is a particular variety, which can be found on the seed tag or in information sources from your seed supplier. Varieties are not the same as a seed brand name, and a variety may be sold under multiple brand names or a brand name seed may be a variety not stated (VNS).

The genetic makeup of seed is considered intellectual property and seed companies seek protection of their varieties through a patent registered with the U.S. Patent and Trademark Office or protection through the Plant Variety Protection Act (PVPA), administered by the USDA. In both cases, the holder of the intellectual property controls the purchase or sale of a variety for 20 years, and unauthorized sales, purchases, or other uses of protected seed is prohibited for that time. Those violating patent or PVPA protection may face legal action from the seed company or intellectual property holder and may be subject to the applicable legal costs of representation and the assessment of potential damages. Simply put, selling or re-using protected seed is risky business.

One exception exists through the PVPA, which allows farmers to save and re-plant up to, but not exceed, the amount of seed they purchased. For example, if you purchased PVPA seed for 100 acres of a cover crop, you may save enough seed to plant 100 acres in the future. However, this only applies to PVPA seed and does not apply to patent protected seed. In determining the difference between the two, check the seed tag for a patent number or “Patent Pending" for patented seed and the phrase “US Plant Protected Variety – Unauthorized Propagation Prohibited" for PVPA seed.

If the seed you’re growing is VNS, then your options for re-use or sale is much greater. You can save seed for your own use without needing to perform any registration or testing. However, if you plan on selling seed you will need to register as a seed dealer with the Pennsylvania Department of Agriculture (PDA), as laid out in the Pennsylvania Seed Act. All sellers of seed, including seed labeled as VNS need to be a licensed seed dealer. In most cases of Pennsylvania farmers selling seed, the seed will not be sold under a variety name and must be labeled as VNS. Farmers intending to sell a protected variety must go through the appropriate channels with the intellectual property holder. Additionally, you cannot sell seed you know to be a protected variety as VNS.

Fortunately, the process to become licensed to sell seed is relatively easy and inexpensive. The first step involves obtaining a seed license, at a cost of $25 per calendar year, from the Pennsylvania Department of Agriculture. Those selling seed must test their respective lots for germination and purity, which can also be done by PDA. Additionally, the Seed Act requires that all seed to be sold have a label that includes the distributor information, the type of seed, the lot number, and information about the purity and germination testing of the seed. Seed sold without such labeling would be done so illegally. Additional information about licensing and testing seed can be found on the PA Department of Agriculture website.

And while we won't go into agronomics, be aware that Pennsylvania’s humid climate is not the most conducive to producing quality seed, and poor germination is a common problem. There are other options available in dealing with mature small grain silage as well. As quality diminishes, silage can still be fed to heifers or dry cows and harvested small grains can be utilized as part of a ration. Additionally, growers can take advantage of the strong straw markets in Pennsylvania by forgoing harvest and cutting rye for straw .

There are alternatives if you will be stuck with maturing small grains. However, before proceeding down a particular path, please be sure that you’re doing so legally or find another option that can fit your operation.