CHAPTER 69

AN ACT TO AMEND CHAPTER 21, TITLE 3, DELAWARE CODE, ENTITLED "COMMERCIAL FERTILIZERS", BY REPEALING THE PRESENT PROVISIONS AND SUBSTITUTING NEW ADMINISTRATIVE AND SUBSTANTIVE PROVISIONS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. This Act shall be cited as the Delaware Fertilizer Law.

Section 2. Chapter 21, Title 3, Delaware Code, is amended to read as follows:

CHAPTER 21. COMMERCIAL FERTILIZERS

§ 2101. Definitions

As used in this chapter--

"Board" means the State Board of Agriculture.

"Brand" means a term, design, or trade mark used in connection with one or several grades of commercial fertilizer.

"Bulk fertilizer" means commercial fertilizer distributed in a non-packaged form.

"Commercial fertilizer" includes mixed fertilizer and/or fertilizer materials.

"Distribute" means to offer for sale, sell, barter, or otherwise supply commercial fertilizers. The term "distributor" means any person who distributes.

"Fertilizer material" means any substance containing nitrogen, phosphorus, potassium, or any recognized plant nutrient element or compound which is used primarily for its plant nutrient content or for compounding mixed fertilizers except unmanipulated animal and vegetable manures.

"Grade" means the percentages of total nitrogen, available phosphoric acid, and soluble potash stated in whole numbers in the same terms, order and percentages as in the "guaranteed analysis".

"Guaranteed analysis" includes: Total Nitrogen--per cent; available phosphoric acid--per cent; soluble potash--per cent; (i) For unacidulated mineral phosphatic materials and basic slag, both total and available phosphorus or phosphoric acid and the degree of fineness. For bone, tankage, and other organic phosphatic materials, total phosphorus or phosphoric acid. (ii) Additional plant nutrients expressed as the elements. (iii) Potential basicity or acidity expressed in terms of calcium carbonate equivalent in multiples of one hundred pounds per ton, when permitted by regulation.

"Mixed fertilizers" means any combination or mixture of fertilizer materials designed for use or claimed to have value in promoting plant growth.

"Official sample" means any sample of commercial fertilizer taken by the State Board of Agriculture or its agents and designated as "official by the State Board of Agriculture".

"Per cent" or "percentage" means the percentage by weight.

"Registrant" means the person who registers commercial fertilizer under the provisions of this chapter.

"Specialty fertilizer" is a commercial fertilizer distributed primarily for non-farm use, such as home gardens, lawns, shrubs, flowers, golf courses, municipal parks, cemeteries, green houses and nurseries, and may include commercial fertilizers used for research or experimental purposes.

"Ton" means a net weight of two thousand pounds avoirdupois.

§ 2102. Registration

(a) Each brand and grade of commercial fertilizer shall be registered before being offered for sale, sold or distributed in this State. The application for registration shall be submitted to the State Board of Agriculture on forms furnished by the Board and shall be accompanied by a fee of one dollar per brand, except that those brands sold in packages of 10 pounds or less shall be registered at a fee of ten dollars each. Upon approval by the Board, a copy of the registration shall be furnished to the applicant. Each applicant for a certificate of registration shall include in the application a permit granting to the Board or its duly designated representative, permission to verify from applicant's records the applicant's statement of tonnage. All registrations shall expire on December 31 of each year. The application shall include the following information:

(1) The net weight

(2) The brand and grade

(3) The guaranteed analysis

(4) The name and address of the registrant

(b) A distributor shall not be required to register any brand of commercial fertilizer which is already registered under this chapter by another person.

(c) The plant nutrient content of each and every commercial fertilizer must remain uniform for the period of registration, and, in no case, even at a subsequent registration, shall the percentage of any guaranteed plant nutrient element be changed in such a manner that the crop-producing quality of the commercial fertilizer is lowered.

§ 2103. Labeling

(a) Any commercial fertilizer distributed in this State in containers shall have placed on or affixed to the container a label setting forth in clearly legible form the information required by Items (1), (2), (3) and (4) of section 2102.

(b) If distributed in bulk, a written or printed statement of the information required by items (1), (2), (3) and (4) of section 2102 shall accompany delivery and be supplied to the purchaser at time of delivery.

§ 2104. Inspection fees and tonnage reports

(c) There shall be paid to the State Board of Agriculture for all commercial fertilizers offered for sale, sold, or distributed in this State an inspection fee at the rate of ten cents per ton: Provided, that sales to manufacturers or exchanges between them are hereby exempted.

On individual packages of commercial fertilizer containing 10 pounds or less, there shall be paid in lieu of the annual registration fee of one dollar per brand and the ten cents per ton inspection tax, an annual registration fee and inspection tax of ten dollars for each brand and grade sold or distributed. Where a person sells commercial fertilizer in packages of 10 pounds or less and in packages over 10 pounds, this annual registration and inspection tax of ten dollars shall apply only to that portion sold in packages of 10 pounds or less, and that portion sold in packages over 10 pounds shall be subject to the same inspection tax of ten cents per ton as provided in this Act.

(d) Payment of the inspection fee shall be evidenced by a statement made in due form of law, of commercial fertilizer distributed, together with documents showing that fees corresponding to the tonnage were received by the State Board of Agriculture. Every person who distributes commercial fertilizer in this State shall:

File, not later than the last day of January of each year, a statement setting forth the number of net tons of each grade of commercial fertilizer distributed in this State during the preceding year and upon filing such statement shall pay the inspection fee at the rate stated in paragraph (a) of this section. The statement shall include individual packages of ten (10) pounds or less shown as a sub-total and included in the total tonnage; however, no inspection fee will be charged on said packages weighing ten (10) pounds or less. All sales shall be shown for the periods of January 1 to and including June 30 and of July 1 to and including December 31 of each year. When more than one person is involved in the distribution of a commercial fertilizer, the person who distributes to the dealer or consumer is responsible for reporting the tonnage and paying the inspection fee. No information furnished under this section shall be disclosed in such a way as to divulge the operation of any person.

If the tonnage report is not filed and the payment of inspection fee is not made within thirty days after the date due, a collection fee amounting to ten per cent (minimum $10.00) of the amount due shall be assessed against the registrant, and the amount of fees due shall constitute a debt and become the basis of a judgment against the registrant. The State Board of Agriculture, however, in its discretion, may grant a reasonable extension of time.

§ 2105. Inspection, sampling, analysis

(e) It shall be the duty of the Stale Board of Agriculture, who may act through its authorized agents, to sample, inspect, make analyses of, and test commercial fertilizers distributed within this State at time and place and to such an extent as he may deem necessary to determine whether such commercial fertilizers are in compliance with the provisions of this Act. The Board through its agents may enter upon any public or private premises during regular business hours in order to have access to commercial fertilizers subject to the provisions of this chapter and the rules and regulations pertaining thereto.

() The methods of analysis and sampling shall be those adopted by the official from sources such as those of the Association of Official Agricultural Chemists.

(a) The Board, in determining for administrative purposes whether any commercial fertilizer is deficient in plant food, shall be guided solely by the official sample and obtained and analyzed as provided for in section 2105 (b).

(b) The results of official analysis of any commercial fertilizer which has been found to be subject to penalty or other legal action shall be forwarded by the Board to the registrant. If, within ten days, no adequate evidence to the contrary is made available to the Board, the report shall become official. Upon request the Board shall furnish to the registrant a portion of any sample found subject to penalty or other legal action.

§ 2106. Plant food deficiency

(a) If the analysis shall show that any commercial fertilizer falls short of the guaranteed analysis in any one ingredient, penalty shall be assessed in accordance with the following provisions:

(1) Total nitrogen: A penalty of two times the value of the deficiency, if such deficiency is in excess of 0.20 of one per cent on goods that are guaranteed 2 per cent; 0.25 of one per cent on goods that are guaranteed 3 per cent; 0.35 of one per cent on goods that are guaranteed 4 per cent; 0.40 of one per cent on goods that are guaranteed 5 per cent up to and including 8 per cent; 0.50 of one per cent on goods guaranteed above 8 per cent up to and including 30 per cent; and 0.75 of one per cent on goods guaranteed over 30 per cent.

(2) Available Phosphoric Acid: A penalty of two times the value of the deficiency, if such deficiency exceeds 0.40 of one per cent on goods that are guaranteed up to and including 10 per cent; 0.50 of one per cent on goods that are guaranteed above 10 per cent up to and including 25 per cent; and 0.75 of one per cent on goods guaranteed over 25 per cent.

(3) Soluble Potash: A penalty of two times the value of the deficiency, if such deficiency is in excess of 0.30 of one per cent on goods that are guaranteed 3 per cent; MO of one per cent on goods guaranteed 4 per cent, 0.50 of one per cent on goods guaranteed above 4 per cent, up to and including 8 per cent; 0.60 of one per cent on goods guaranteed above 8 per cent up to and including 20 per cent; and 0.75 of one per cent on goods guaranteed over 20 per cent.

(4) Deficiencies in any other constituent or constituents covered under the definition of "guaranteed analysis" in section 2101 which the registrant is required to or may guarantee shall be evaluated by the State Board of Agriculture and penalties therefor shall be prescribed by the State Board of Agriculture.

(b) Nothing contained in this section shall prevent any person from appealing to a court of competent jurisdiction praying for judgment as to the justification of such penalties.

(c) All penalties assessed under this section shall be paid to the consumer of the lot of commercial fertilizer represented by the sample analyzed within three months after the date of notice from the State Board of Agriculture to the registrant, receipts taken therefor and promptly forwarded to the State Board of Agriculture. If said consumers cannot be found, the amount of the penalty shall be paid to the Board who shall deposit the same, in the State Treasury.

§ 2107. False or misleading statements

A commercial fertilizer is misbranded if it carries any false or misleading statement upon or attached to the container, or if false or misleading statements concerning its agricultural value are made on the container or in any advertising matter accompanying or associated with the commercial fertilizer. It shall be unlawful to distribute a misbranded commercial fertilizer.

§ 2108. Publications

The State Board of Agriculture shall publish at least annually, in such forms as it may deem proper, information concerning the sales of commercial fertilizers, together with such data on their production and use as it may consider advisable, and a report of the results of the analysis based on official samples of commercial fertilizers sold within the State as compared with the analyses guaranteed under sections 2102 and 2103, but that the information concerning production and use of commercial fertilizers shall be shown separately for the periods July first to December thirty-first and January first to June thirtieth of each year, and that no disclosure shall be made of the operations of any person.

§ 2109. Rules and regulations

For the enforcement of this chapter, the State Board of Agriculture may prescribe and, after public hearing following due public notice, enforce such rules and regulations relating to the distribution of commercial fertilizers as it may find necessary to carry into effect the full intent and meaning of this chapter.

§ 2110. Short weight

If any commercial fertilizer in the possession of the consumer is found by the State Board of Agriculture to be short in weight, the registrant of said commercial fertilizer shall within thirty days after official notice from the Board pay to the consumer a penalty equal to four times the value of the actual shortage.

§ 2111. Cancellation of registrations

The State Board of Agriculture may cancel the registration of any brand of commercial fertilizer or refuse to register any brand of commercial fertilizer as herein provided, upon satisfactory evidence that the registrant has used fraudulent or deceptive practices in the evasions or attempted evasions of the provisions of this chapter or any rules and regulations promulgated thereunder, but no registration shall be revoked or refused until the registrant shall have been given the opportunity to appear for a hearing by the Board.

§ 2112. "Stop sale" orders

The State Board of Agriculture may issue and enforce a written or printed "stop, sale, use or removal" order to the owner or custodian of any lot of commercial fertilizer and to hold at designated place when the Board finds said commercial fertilizer is being offered or exposed for sale in violation of any of the provisions of this chapter until the law has been complied with and said commercial fertilizer is released in writing by the Board or the violation has been otherwise legally disposed of by written authority. The Board shall release the commercial fertilizer so withdrawn 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.

§ 2113. Seizure, condemnation and sale

Any lot of commercial fertilizer not in compliance with the provisions of this chapter shall be subject to seizure on complaint of the State Board of Agriculture to a court of competent jurisdiction in the area in which said commercial fertilizer is located.

In the event the court finds the commercial fertilizer to be in violation of this chapter and orders the condemnation of said commercial fertilizer, it shall be disposed of in any manner consistent with the quality of the commercial fertilizer and the laws of the State, but in no instance shall the disposition of the commercial fertilizer be ordered by the court without first giving the claimant an opportunity to apply to the court for release of the fertilizer or for permission to process or re-label said commercial fertilizer to bring it into compliance with this chapter.

§ 2114. Exchanges between manufacturers

Nothing in this chapter shall be construed to restrict or avoid sales or exchanges of commercial fertilizers to each other by importers, manufacturers, or manipulators who mix fertilizer materials for sale or as preventing the free and unrestricted shipments of commercial fertilizer to manufacturers or manipulators who have registered their brands as required by the provisions of this chapter.

§ 2115. Violations, penalties, enforcement, exceptions

(a) If it shall appear from the examination of any commercial fertilizer that any of the provisions of this chapter or the rules and regulations issued thereunder have been violated, the State Board of Agriculture shall cause notice of the violations to be given to the registrant, distributor, or possessor from whom said sample was taken; any person so notified shall be given opportunity to be heard under such rules and regulations as may be prescribed by the Board. If it appears after such hearing, either in the presence or absence of the person so notified, that any of the provisions of this chapter or rules and regulations issued thereunder have been violated, the Board may certify the facts to the proper prosecuting attorney.

(b) Any person convicted of violating any provision of this chapter or the rules and regulations issued thereunder shall be punished in the discretion of the court.

() Nothing in this chapter shall be construed as requiring the State Board of Agriculture or its representative to report for prosecution or for the institution of seizure proceedings as a

result of minor violations of the chapter when it believes that the public interests will be best served by a suitable notice or warning in writing.

(d) It shall be the duty of each Deputy Attorney General to whom any violation is reported to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay.

(e) The State Board of Agriculture may apply for and the court may grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rule or regulation promulgated hereunder notwithstanding the existence of other remedies at law. Said injunction to be issued without bond.

§ 2116. Disposition of monies received

All monies received under the provisions of this chapter, except as provided for in paragraph (c) of section 2106, shall be promptly transferred to the State Treasurer and paid into the general fund of the State.

Section 3. This act shall take effect January 1, 1960.

Approved June 17, 1959.