(1) A commercial fertilizer is deemed deficient if the analysis of any nutrient is below the guarantee by an amount exceeding the investigational allowances. The department shall adopt rules, which shall take effect on July 1, 2014, that establish the investigational allowances used to determine whether a fertilizer is deficient in plant food.
(a) Effective July 1, 2014, this paragraph and paragraphs (b)-(f) are repealed. Until July 1, 2014, investigational allowances shall be set as provided in paragraphs (b)-(f).
(b) Primary plant nutrients; investigational allowances.—
|04 or less||0.49||0.67||0.41|
|32 or more||0.88||0.76||1.44|
For guarantees not listed, calculate the appropriate value by interpolation.
(c) Nitrogen investigational allowances.—
|Nitrogen Breakdown||Investigational Allowances|
|Water soluble nitrogen|
or urea nitrogen
|Water insoluble nitrogen||0.30|
In no case may the investigational allowance exceed 50 percent of the amount guaranteed.
(d) Secondary and micro plant nutrients, total or soluble.—
|Element||Investigational Allowances Percent|
|Calcium||0.2 unit + 5 percent of guarantee|
|Magnesium||0.2 unit + 5 percent of guarantee|
|Sulfur (free and combined)||0.2 unit + 5 percent of guarantee|
|Boron||0.003 unit + 15 percent of guarantee|
|Cobalt||0.0001 unit + 30 percent of guarantee|
|Chlorine||0.005 unit + 10 percent of guarantee|
|Copper||0.005 unit + 10 percent of guarantee|
|Iron||0.005 unit + 10 percent of guarantee|
|Manganese||0.005 unit + 10 percent of guarantee|
|Molybdenum||0.0001 unit + 30 percent of guarantee|
|Sodium||0.005 unit + 10 percent of guarantee|
|Zinc||0.005 unit + 10 percent of guarantee|
The maximum allowance for secondary and minor elements when calculated in accordance with this section is 1 unit (1 percent). In no case, however, may the investigational allowance exceed 50 percent of the amount guaranteed.
(e) Liming materials and gypsum.—
|Range Percent||Investigational Allowances|
(f) Pesticides in fertilizer mixtures.—An investigational allowance of 25 percent of the guarantee shall be allowed on all pesticides when added to custom blend fertilizers.
(2) Deficiencies, compensation, and penalties shall be as follows:
(a) When the commercial value of a mixed fertilizer found to be deficient in primary plant nutrient equals or exceeds the amount guaranteed by the licensee, no penalty shall be assessed, provided no element of primary plant nutrient is deficient more than one-half of 1 percent when the guarantee does not exceed 10 percent or more than 1 percent when the guarantee exceeds 10 percent. If the commercial value found fails to equal or exceed that which is guaranteed, a penalty shall be assessed based on the deficiency found, but in no instance shall the penalty be less than $10. No overage in any secondary plant nutrient or micro plant nutrient shall compensate for a deficiency in primary plant nutrient or of another secondary plant nutrient or micro plant nutrient. When a deficiency is found in any plant nutrient, the buyer shall be entitled to collect an amount from the licensee equal to three times the commercial value of the deficiency found. If the licensee on which a penalty is assessed for a plant nutrient deficiency is on probationary status as provided in this chapter, the licensee shall pay to the department an additional amount equal to one-half the penalty assessed. The proceeds from any such penalty shall be deposited into the General Inspection Trust Fund to be used for the sole purpose of funding the fertilizer inspection program. A penalty shall be assessed if any of the plant nutrients in mixed fertilizer or fertilizer material are found below the investigational allowances provided in subsection (1), unless compensable.
(b) Penalties shall be assessed at the rate of three times the commercial value of the deficiency found, using the formula: the percent deficient times the commercial value times three times the tonnage represented by the official sample.
(c) A deficiency in a nitrogen breakdown form shall be compensated by an excess in another nitrogen form if the following criteria are met:
1. Fifty percent or greater of the guaranteed amount of the deficient form must be found by analysis.
2. The excess in the nitrogen forms used for compensation must exceed the commercial value of the guaranteed forms found within investigational allowance but below guarantee.
If the criteria for compensation in this paragraph are not met, a penalty shall be assessed on the difference in the guaranteed and found percentages of the deficient nitrogen form. When compensation is applied to a deficiency and the total commercial value of the nitrogen forms found by analysis fails to equal 100 percent of the total commercial value of the nitrogen forms guaranteed, a penalty of three times the difference of the commercial value after compensation and the commercial value guaranteed shall be assessed. A penalty must be assessed on the nitrogen breakdown when both the total nitrogen and the nitrogen breakdown are found to be deficient. If the nitrogen breakdown is within investigational allowance and the total nitrogen is deficient, a penalty shall be assessed against the total nitrogen deficiency unless compensable as provided in this chapter. If the nitrogen is derived solely from ammonium nitrate, the commercial value used in determining the penalty on either the total nitrogen or the nitrate nitrogen must be the same as that of the ammoniacal nitrogen.
(d) In assessing penalties on a deficient lot of dolomite or limestone, the following formula shall be used: the percentage guarantee minus the percentage of CaCO3 or MgCO3 found times the commercial value times three times the tonnage represented by the official sample. Shortages in CaCO3 liming materials may be compensated by overages in MgCO3 on a unit-for-unit basis.
(e) In calculating penalties, no consideration may be given to investigational allowances.
(f) When a pesticide in a fertilizer-pesticide mixture is found by analysis to be deficient beyond the investigational allowance as provided in this section, the buyer is entitled to collect an amount from the registrant equal to three times the value of the deficiency found, except when the official sample was taken from a fertilizer-pesticide mixture that was in the possession of a consumer for more than 45 days after the date of purchase by that consumer. When a deficiency is found in a sample drawn from a fertilizer-pesticide mixture in the hands of a dealer or agency, the penalty shall be disbursed as provided in paragraph (3)(e). The value of the deficiency found must be an amount equal to the product of the percent deficient times the comparable consumer invoice value of the quantity of pesticide as active ingredient represented by the official sample, divided by the percent guarantee of the pesticide. In no instance may the penalty be less than $25.
(3)(a) In tobacco brands of mixed fertilizer, the penalty for an excess of chlorine of more than 25 percent of the guarantee shall be 100 percent of the commercial value of the mixed fertilizer. No penalty shall be assessed for an excess of chlorine of less than 25 percent of the guarantee, and in no case shall a penalty be assessed unless the chlorine present is 1 percent or more.
(b) Within 60 days from the date of issuance of a fertilizer analysis report from the department and the notice of penalties assessed under the provisions of this chapter, a licensee shall make payment in full to the consumer, in cash, or by credit memo if and to the extent the consumer is indebted to the licensee or dealer. Any licensee who fails to make settlement in full to the consumer within the 60 days is liable for interest on the penalty of 1.5 percent per month from the date of issuance of the fertilizer analysis report. If a licensee demands an analysis of the official check sample by a referee chemist, the 60-day settlement requirement shall be temporarily suspended pending a final determination. When the final and binding analysis has been established, it shall be the responsibility of the department to determine the amount of penalty, if any, due to the consumer and to notify in writing the licensee and the consumer of the final determination. The licensee shall have 10 days from the date of receipt of the final determination from the department to make settlement with the consumer and shall notify the department in writing of the terms of the settlement.
(c) If any fertilizer is found to be of short weight by the department, the licensee, within 30 days after receipt of notice of such short weight, shall make payment to the consumer or the department an amount of three times the commercial value of the shortage in each case, or by credit memo if and to the extent the consumer is indebted to the licensee or dealer, but in no instance shall the penalty be less than $25. Any licensee who fails to make settlement in full to the consumer or the department within 60 days is liable for interest on the penalty of 1.5 percent per month from the date of issuance. The licensee shall notify the department in writing of the terms of the settlement.
(d) If the licensee, dealer, or agent fails or refuses to make payment to the consumer within the time required, the consumer may institute legal proceedings against the licensee, dealer, or agent for recovery of penalties as provided in this chapter. Any judgment against a licensee, dealer, or agent shall be double the amount of the penalty and shall include a reasonable attorney’s fee and costs.
(e) When a deficiency is found in a sample drawn from a lot of fertilizer in the hands of a dealer or agency, the dealer or agency shall collect the amount due under the deficiency from the licensee and shall within 60 days pay to each person purchasing fertilizer from such lot a proportionate share of the amount collected and shall notify the department in writing that such payment has been made. However, as to any individual sale by a dealer or agent of fertilizer subject to penalties for deficiencies when the dealer or agent is unable to determine the purchaser of the lot of fertilizer, the dealer or agent shall pay the proportionate amount of penalties to the department to be placed in the State Treasury to the credit of the General Inspection Trust Fund to be used for the sole purpose of funding the fertilizer inspection program.
(4) When it is determined by the department that a fertilizer has been distributed without being licensed or registered, or without labeling, the department shall require the licensee to pay a penalty in the amount of $100. The proceeds from any penalty payments shall be deposited by the department in the General Inspection Trust Fund to be used for the sole purpose of funding the fertilizer inspection program.
(5) The department may enter an order imposing one or more of the following penalties against any person who violates any of the provisions of this chapter or the rules adopted hereunder or who shall impede, obstruct, hinder, or otherwise prevent or attempt to prevent the department in the performance of its duty in connection with the provisions of this chapter:
(a) Issuance of a warning letter.
(b) Imposition of an administrative fine of not more than $1,000 per occurrence after the issuance of a warning letter.
(c) Cancellation, revocation, or suspension of any license issued by the department.