§ 106-662. Sampling, inspection and testing.
§ 106‑662. Sampling, inspection and testing.
(a) It shall be the duty of the Commissioner to sample, inspect,make analysis of, and test commercial fertilizers offered for sale, sold, ordistributed within the State at such time and place and to such an extent as hemay deem necessary to determine whether such commercial fertilizers are incompliance with the provisions of this Article. The Commissioner is authorizedwith permission or under court warrant to enter upon any public or privatepremises during regular business hours or at any time business is beingconducted therein in order to have access to commercial fertilizers subject tothe provisions of this Article and the rules and regulations thereto.
(b) The methods of sampling shall be as follows:
(1) For the purposes of analysis by the Commissioner and forcomparison with the guarantee supplied to the Commissioner in accordance withG.S. 106‑660 and 106‑661, the Commissioner, shall take an officialsample of not less than one pound from containers of commercial fertilizer. Nosample shall be taken from less than five containers. Portions shall be takenfrom containers as shown in the following table:
5 to 10 containers allcontainers
11 to 20 containers 10containers
21 to 40 containers 15containers
above 40 containers 20containers
Ten cores from bulk lots or as specified by theAssociation of Official Analytical Chemists (A.O.A.C.).
(2) A core sampler shall be used that removes a core from a bagor other container in a horizontal position from a corner to the diagonalcorner at the other end of the package, and the cores taken shall be mixed, andif necessary, shall be reduced after thoroughly mixing, to the quantity ofsample required. The composite sample taken from any lot of commercial fertilizerunder the provisions of this subdivision shall be placed in a tight containerand shall be forwarded to the Commissioner with proper identification marks.
(3) The Board of Agriculture may modify the provisions of thissubsection to bring them into conformity with any changes that may hereafter bemade in the official methods of and recommendations for sampling commercialfertilizers which shall have been adopted by the Association of OfficialAnalytical Chemists or by the Association of American Plant Food ControlOfficials. Thereafter, such methods and recommendations shall be used in allsampling done in connection with the administration of this Article in lieu ofthose prescribed in subdivisions (1) and (2) of this subsection.
(4) All samples taken under the provisions of this section shallbe taken from original unbroken bags or containers, the contents of which havenot been damaged by exposure, water or otherwise; provided, that any commercialfertilizer offered for sale, sold or distributed in bulk may be sampled in amanner approved by the Commissioner.
(5) The Commissioner shall refuse to analyze all samples exceptthose taken under the provisions of this section and no sample, unless sotaken, shall be admitted as evidence in the trial of any suit or action whereinthere is called into question the value or composition of any lot of commercialfertilizer distributed under the provisions of this Article.
(6) In the trial of any suit or action wherein there is calledin question the value or composition of any lot of commercial fertilizer, acertificate signed by the fertilizer chemist and attested with the seal of theDepartment of Agriculture and Consumer Services, setting forth the analysismade by the chemist of the Department of any sample of said commercialfertilizer, drawn under the provisions of this section and analyzed by themunder the provisions of the same, shall be prima facie proof that the lot offertilizer represented by the sample was of the value and constituency shown bysaid analysis. And the said certificate of the chemist shall be admissible inevidence.
(c) The methods of analysis shall be those adopted as officialby the Board of Agriculture and shall conform to sound laboratory practices asevidenced by methods prescribed by the Association of Official AnalyticalChemists of the United States. In the absence of methods prescribed by theBoard, the Commissioner shall prescribe the methods of analysis.
(d) The result of official analysis of any commercial fertilizerwhich has been found to be subject to penalty shall be forwarded by theCommissioner to the registrant at least 10 days before the report is submittedto the purchaser. If, during that period, no adequate evidence to the contraryis made available to the Commissioner, the report shall become official. Uponrequest the Commissioner shall furnish to the registrant a portion of anysample found subject to penalty.
(e) Any purchaser or consumer may take and have a sample ofmixed fertilizer or fertilizer material analyzed for available plant food, iftaken in accordance with the following rules and regulations:
(1) At least five days before taking a sample, the purchaser orconsumer shall notify the manufacturer or seller of the brand in writing, athis permanent address, of his intention to take such a sample and shall requestthe manufacturer or seller to designate a representative to be present when thesample is taken.
(2) The sample shall be drawn in the presence of themanufacturer, seller, or representative designated by either party togetherwith two disinterested adult persons; or in case the manufacturer, seller, orrepresentative of either refuses or is unable to witness the drawing of such asample, a sample may be drawn in the presence of three disinterested adultpersons; provided, any such sample shall be taken with the same type of sampleras used by the inspector of the Department of Agriculture and Consumer Servicesin taking samples and shall be drawn, mixed, and divided, as directed insubdivisions (1), (2), (3), and (4) of subsection (b) of this section, exceptthat the sample shall be divided into two parts each to consist of at least onepound. Each of these is to be placed into a separate, tight container, securelysealed, properly labeled, and one sent to the Commissioner for analysis and theother to the manufacturer. A certificate statement in a form which will beprescribed and supplied by the Commissioner must be signed by the partiestaking and witnessing the taking of the sample. Such certificate is to be madeand signed in duplicate and one copy sent to the Commissioner and the other tothe manufacturer or seller of the brand sampled. The witnesses of the taking ofany sample, as provided for in this section, shall be required to certify that suchsample has been continuously under their observation from the taking of thesample up to and including the delivery of it to an express agency, a postoffice or to the office of the Commissioner.
(3) Samples drawn in conformity with the requirements of thissection shall have the same legal status in the courts of the State, as thosedrawn by the Commissioner or any official inspector appointed by him asprovided for in subsection (b) of this section.
(4) No suit for damages claimed to result from the use of anylot of mixed fertilizer or fertilizer material may be brought unless it shallbe shown by an analysis of a sample taken and analyzed in accordance with theprovisions of this Article, that the said lot of fertilizer as represented by asample or samples taken in accordance with the provisions of this section doesnot conform to the provisions of this Article with respect to the compositionof the mixed fertilizer or fertilizer material, unless it shall appear to theCommissioner that the manufacturer of the fertilizer in question has, in themanufacture of other goods offered in this State during such season, employedsuch ingredients as are prohibited by the provisions of this Article, or unlessit shall appear to the Commissioner that the manufacturer of such fertilizerhas offered for sale during that season any kind of dishonest or fraudulentgoods or unless it shall appear to the Commissioner that the manufacturer ofthe fertilizer in question, or a representative, agent or employee of the manufacturer,has violated any provisions of G.S. 106‑663. (1947, c. 1086, s. 7; 1955, c. 354, s. 3; 1973, c.1304, s. 1; 1977, c. 303, s. 8; 1981, c. 448, s. 8; 1997‑261, ss. 68,69.)