This subdivision shall be known as the New Hampshire fertilizer law.
This subdivision shall be administered by the commissioner of agriculture, markets, and food.
I. "Brand" means a term, design, or trademark used in connection with one or several grades of fertilizer.
II. "Bulk fertilizer" means a fertilizer distributed in a non-packaged form.
III. "Commissioner" means the commissioner of agriculture, markets, and food or the commissioner's authorized agent.
IV. "Deficiency" means the amount of nutrient found by analysis less than that guaranteed which may result from a lack of nutrient ingredients or from lack of uniformity.
V. "Distribute" means to import, consign, manufacture, produce, compound, mix, or blend fertilizer, or to offer for sale, sell, barter or otherwise supply fertilizer in this state.
VI. "Distributor" means any person who distributes.
VII. "Fertilizer" means any substance containing one or more recognized plant nutrients which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, wood ashes and other products exempted by rule by the commissioner.
VIII. "Fertilizer material" means a fertilizer which:(a) Contains important quantities of no more than one of the following primary plant nutrients, nitrogen (N), phosphorous (P), and potassium (K); or
(b) Has 85 percent or more of its plant nutrient content present in the form of a single chemical compound; or
(c) Is derived from a plant or animal residue or by-product or natural material deposit which has been processed in such a way that its content of plant nutrients has not been materially changed except by purification and concentration.IX. "Grade" means the percentage of total nitrogen, available phosphate, and soluble potash stated in whole numbers in the same terms, order, and percentages as in the guaranteed analysis, provided that:
(a) Specialty fertilizers may be guaranteed in fractional units of less than one percent of total nitrogen, available phosphate, and soluble potash.
(b) Fertilizer materials, bone meal, manures and similar materials may be guaranteed in fractional units.X. "Guaranteed analysis" means the minimum percentage by weight of plant nutrients claimed to be present in a fertilizer.
XI. "Investigational allowance" means an allowance for variations inherent in the taking, preparation and analysis of an official sample of fertilizer.
XII. "Label" means the display of all written, printed, or graphic matter, upon the immediate container, or a statement accompanying a fertilizer.
XIII. "Labeling" means all written, printed, or graphic matter, upon or accompanying any fertilizer, or advertisements, brochures, posters, television and radio announcements used in promoting the sale of such fertilizer.
XIV. "Mixed fertilizer" means a fertilizer containing any combination or mixture of fertilizer materials.
XV. "Official sample" means any sample of fertilizer taken by the commissioner and designated as "official" by the commissioner.
XVI. "Percent" or "percentage" means the percentage by weight.
XVII. "Person" means any individual, firm, company, partnership, corporation, association, cooperative, business trust, or legal entity of any kind.
XVIII. "Primary nutrient" means nitrogen, available phosphate and soluble potash.
XIX. "Registrant" means the person who registers fertilizer under the provisions of this subdivision.
XX. "Specialty fertilizer" means a fertilizer distributed for non-farm use.
XXI. "Ton" means a net weight of 2,000 pounds avoirdupois.
I. Each brand and grade of fertilizer shall be registered in the name of that person whose name appears upon the label before being distributed in this state. The application for registration shall be submitted to the commissioner on a form furnished by the commissioner and shall be accompanied by a fee of $50 per grade of each brand sold.
II. The fees collected under this section shall be deposited with the state treasurer into the general fund as unrestricted revenue.
III. Upon approval by the commissioner, a copy of the registration shall be furnished to the applicant. All registrations expire on December 31 of each year. This application shall include the following information:(a) The brand and grade.
(b) The guaranteed analysis.
(c) The name and address of the registrant.
(d) Net weight.IV. A distributor shall not be required to register any fertilizer which is already registered under this section by another person, providing the label does not differ in any respect.
V. A distributor shall not be required to register each grade of fertilizer formulated according to specifications which are furnished by a consumer prior to mixing, but shall be required to label such fertilizer as provided in RSA 431:5, III.
I. Any fertilizer distributed in this state in containers shall have placed on or affixed to the container a label setting forth in clearly legible and conspicuous form the following information:
(a) Net weight.
(b) Brand and grade, provided, that the grade shall not be required when no primary nutrients are claimed.
(c) Guaranteed analysis in the following order and form:
Total Nitrogen (N) %
Available Phosphate (P2O5) %
Soluble Potash (K2O) %(1) For unacidulated mineral phosphatic material and basic slag, bone, tankage and other organic phosphatic materials, the total phosphate and or degree of fineness may also be guaranteed.
(2) Guarantees for plant nutrients, other than nitrogen, phosphorous and potassium, may be permitted or required by rule by the commissioner. The guarantees for such other nutrients shall be expressed in the form of the element. The source (oxides, salts, chelates, etc.) of such other nutrients may be required to be stated on the application for registration and may be included on the label. Other beneficial substances or compounds, determinable by laboratory methods, also may be guaranteed by permission of the commissioner and with the advice of the director of the agricultural experiment station. When any plant nutrients or other substances or compounds are guaranteed, they shall be subject to inspection and analysis in accord with the methods and rules adopted by the commissioner.(d) Name and address of the registrant.
II. In the case of bulk shipments, the information required in paragraph I
in written or printed form shall accompany delivery and be supplied to the purchaser
at the time of delivery.
III. A fertilizer formulated according to specifications which are furnished
by a consumer prior to mixing shall be labeled to show the net weight, the guaranteed
analysis, and the name and address of the distributor or registrant.
I. There shall be paid to the commissioner for all fertilizers distributed
in this state to non-registrants and inspection fee on each tone of fertilizer
sold in a manner and at a fee prescribed by the commissioner by rules; provided,
that sales or exchanged between importers, manufacturers, distributors or registrants
are exempted.
II. Every registrant who distributed fertilizer in the state shall file with
the commissioner a semi-annual statement for the reporting period setting forth
the number of net tons of each fertilizer so distributed in this state during
such period. The report shall be due on or before 30 days following the close
of the filing period and upon filing such statement the registrant shall pay
an inspection fee. If the tonnage report is not filed and the payment of inspection
fees is not made within 30 days after the end of the specified filing period,
a collection fee, amounting to 10 percent (minimum $10) of the amount due, shall
be assessed against the registrant and added to the amount due.
III. When more than one person is involved in the distribution of a fertilizer,
the last person who has the fertilizer registered and who distributed to a non-registrant
dealer or consumer is responsible for reporting the tonnage and paying the inspection
fee, unless the report and payment is made by a prior distributor of the fertilizer.
IV. Fees collected under this section shall be deposited with the state treasurer
into the general fund as unrestricted revenue.
V. No information furnished the commissioner under this section shall be disclosed
in such a way as to divulge the operation of any person.
I. It shall be the duty of the commissioner to sample, inspect, make analyses of, and test fertilizers distributed within this state at any time and place and to such an extent as the commissioner may deem necessary to determine whether such fertilizers are in compliance with the provisions of this subdivision. The commissioner is authorized to enter upon any public or private premises or carriers during regular business hours in order to access fertilizer subject to provision s of this subdivision and the rules adopted pursuant to it, and the records relating to their distribution and storage.
II. The methods of sampling and analysis shall be those adopted by the Association of Official Analytical Chemists (AOAC). In cases not covered by such methods, or in cases where methods are available in which improved applicability has been demonstrated, the commissioner may adopt by rule such appropriate methods from other sources.
III. The commissioner, in determining for administrative purposes whether any fertilizer is deficient in plant food, shall be guided solely by the official sample as defined in RSA 431:3, and obtained and analyzed as provided for in paragraph II of this section.
IV. The results of official analysis of fertilizers and portions of official samples shall be distributed by the commissioner as provided by rule. Official samples establishing a penalty for nutrient deficiency shall be retained for a minimum of 90 days from issuance of a deficiency report.
I. When the official analysis under RSA 431:7 shall show that a fertilizer is deficient in nitrogen, available phosphate and/or soluble potash in accordance with the provisions of subparagraphs (a) and (b), then a penalty payment of 3 times the value of such deficiency shall be assessed. When a fertilizer is subject to a penalty payment under both (a) and (b), the larger penalty payment shall apply. A fertilizer is deficient when:
(a) One or more of its guaranteed primary plant nutrients are beyond the investigational allowances established by rule; or
(b) The overall index value of the fertilizer is below the level established by rule.II. Penalty payments for deficiencies beyond the investigational allowances as established by rule for any other constituent covered under RSA 431:5, I(c)(2), which the registrant is required to or may guarantee, shall be evaluated and penalty payments prescribed by the commissioner.
III. All penalty payments assessed under this section shall be paid by the registrant to the commissioner within 3 months of receiving written notification from the commissioner of the penalty notice.
IV. Penalty payments received from the registrant shall be refunded to the consumer of the fertilizer which has been analyzed and found deficient, provided that the purchase is of one ton or more. Penalty payments on lots of fertilizer which have been analyzed and found deficient and whose purchaser cannot be found shall be deposited in the general fund as unrestricted revenue.
V. If, upon satisfactory evidence, a person is shown to have altered the content of a fertilizer shipped to such person by a registrant, or to have mixed or commingled fertilizer from 2 or more suppliers such that the result of either alteration changes the analysis of the fertilizer as originally guaranteed, then that person shall become responsible for obtaining a registration and shall be held liable for all penalty payments and be subject to other provisions of this subdivision, including seizure, condemnation and stop sale.
VI. A deficiency in an official sample of mixed fertilizer resulting from non-uniformity is not distinguishable from a deficiency due to actual plant nutrient shortage and is properly subject to official action.
VII. Nothing contained in this section shall prevent any person from appealing to a court of competent jurisdiction seeking judgment as to the justification of such penalty payments.
For the purpose of determining the commercial value to be applied under the provisions of RSA 431:8, the commissioner shall determine and publish annually the values per unit of nitrogen, available phosphate, and soluble potash in fertilizers in this state. The value so determined and published shall be used in determining and assessing penalty payments.
No person shall distribute misbranded fertilizer. A fertilizer shall be deemed to be misbranded if:
I. Its labeling is false or misleading in any particular.
II. It is distributed under the name of another fertilizer product.
III. It is not labeled as required in RSA 431:5 and in accordance with rules adopted under this subdivision.
IV. It purports to be or is represented as a fertilizer, or is represented as containing a plant nutrient or fertilizer unless such plant nutrient or fertilizer conforms to the definition of identity, if any, prescribed by rule of the commissioner. In adopting such rules, the commissioner shall give due regard to commonly accepted definitions and official fertilizer terms such as those issued by the Association of American Plant Food Control Officials.
No person shall distribute an adulterated fertilizer product. A fertilizer shall be deemed to be adulterated if:
I. It contains any deleterious or harmful ingredient in sufficient amount to render it injurious to beneficial plant, animal, human or aquatic life or to soil or water when applied in accordance with directions for use on the label, or if adequate warning statements or directions for use which may be necessary to protect plant life, animal, human, or aquatic life or soil or water are not shown upon the label.
II. Its composition falls below or differs from that which it is purported to possess by its labeling.
III. It contains unwanted crop seed or weed seed.
The commissioner shall publish in such forms as the commissioner deems proper:
I. Information concerning the distribution of fertilizer.
II. Results of analyses based on official samples of fertilizer distributed within the state as compared with the analyses guaranteed under RSA 431:4 and RSA 431:5.
For the enforcement of this subdivision, the commissioner shall adopt under RSA 541-A, after public hearing, such rules relating to investigational allowances, definitions, records, distribution, storage, use and application of fertilizers as may be necessary to carry into effect the full intent and meaning of this subdivision.
If any fertilizer in the possession of the consumer is found by the commissioner to be short in weight, the registrant of the fertilizer shall within 30 days after official notice from the commissioner submit to the consumer a penalty payment of 4 times the value of the actual shortage.
The commissioner may cancel the registration of any brand of fertilizer or may refuse to register any brand of fertilizer as provided in this subdivision, upon satisfactory evidence that the registrant has used fraudulent or deceptive practices in the evasion or the attempted evasion of the provisions of this subdivision or any rules adopted thereunder. No registration shall be revoked or refused until the registrant shall have been given the opportunity to appear for a hearing by the commissioner.
The commissioner may issue and enforce a written or printed "stop sale, use, or removal" order to the owner of any lot of fertilizer and hold such fertilizer at a designated place when the commissioner finds the fertilizer is being offered or exposed for sale in violation of any of the provisions of this subdivision until the law has been complied with and the fertilizer is released in writing by the commissioner, or the violation has been otherwise legally disposed of by written authority. The commissioner shall release the fertilizer so withdrawn when this subdivision has been complied with and all costs and expenses incurred in connection with the withdrawal have been paid.
Any lot of fertilizer not in compliance with the provisions of this subdivision shall be subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the are in which the fertilizer is located. In the event the court finds the fertilizer to be in violation of this subdivision and orders the condemnation of the fertilizer, it shall be disposed of in any manner consistent with the quality of the fertilizer and the law of the state. In no instance shall the disposition of the fertilizer be ordered by the court for release of the fertilizer or for permission to process or relabel the fertilizer to bring it into compliance with this subdivision.
I. Any person who, personally or through an agent, violates any provision of this subdivision or rule adopted under this subdivision shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
II. Any person who violates any provision of this subdivision or any rule adopted or order issued under this subdivision shall, in addition, be liable for a civil forfeiture not to exceed $5,000 for each violation, for each day of a continuing violation, which may be collected in a civil action or in connection with an action for injunctive relief brought by the attorney general.
III. Any person who violates any provision of this subdivision, or any rule or order of the commissioner, shall be subject to the imposition of an administrative fine levied by the commissioner, not to exceed $1,000 for each violation.
IV. The commissioner 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 subdivision or any rule adopted hereunder, notwithstanding the existence of other remedies at law. The injunction shall be issued without bond.
The commissioner may cooperate with and enter into agreement with governmental agencies of this state, other states, and agencies of the federal government in order to carry out the purpose of this subdivision.
Nothing in this subdivision shall be construed to restrict or avoid sale or exchanges of fertilizers to each other by importers, manufacturers, or manipulators who mix fertilizer materials for sale, or as preventing the free and unrestricted shipments of fertilizer to manufacturers or manipulators who have registered their brands as required by provisions of this subdivision.
