CHAPTER 63. COMMERCIAL FERTILIZER
AGRICULTURE CODE
TITLE 5. PRODUCTION, PROCESSING, AND SALE OF HORTICULTURAL
PRODUCTS
SUBTITLE A. SEED AND FERTILIZER
CHAPTER 63. COMMERCIAL FERTILIZER
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 63.001. DEFINITIONS. In this chapter:
(1) "Board" means the board of regents of The Texas A & M
University System.
(2) "Brand" means the term, design, trademark, or other specific
designation under which a commercial fertilizer is distributed.
(3) "Bulk" means any lot of commercial fertilizer that is not in
a closed container at the time it passes to the possession of the
consumer and includes that fertilizer at any stage of
distribution.
(4) "Container" means a bag, box, carton, bottle, object,
barrel, package, apparatus, device, appliance, or other item of
any capacity into which a commercial fertilizer is packed,
poured, stored, or placed for handling, transporting, or
distributing.
(5) "Customer-formula fertilizer" means a mixture of commercial
fertilizers or fertilizer materials and other agricultural
products such as seed and pesticides, any part of which is
furnished by the person who processed, mixed, blended, or
prepared the mixture and which is formulated according to the
specific instructions of the purchaser.
(6) "Director" means the director of the Texas Agricultural
Experiment Station.
(7) "Distribute" means sell, offer for sale, expose for sale,
consign for sale, barter, exchange, transfer possession or title,
or otherwise supply.
(8) "Fertilizer material" means a solid or nonsolid substance or
compound that contains an essential plant nutrient element in a
form available to plants and is used primarily for its essential
plant nutrient element content in promoting or stimulating growth
of a plant or improving the quality of a crop or for compounding
a mixed fertilizer. The term does not include the excreta of an
animal, plant remains, or a mixture of those substances, for
which no claim of essential plant nutrients is made.
(9) "Grade" means the percentages stated in whole numbers of
total nitrogen, available phosphoric acid
(P2O5), and soluble potash (K2O)
guaranteed in a fertilizer.
(10) "Label" means a display of written, printed, or graphic
matter on or affixed to a container or on an invoice or delivery
slip.
(11) "Mixed fertilizer" means a solid or nonsolid product that
results from the combination, mixture, or simultaneous
application of two or more fertilizer materials by a
manufacturer, processor, mixer, or contractor. The term may
include a specialty fertilizer or manipulated manure, but does
not include the excreta of an animal, plant remains, or a mixture
of those substances, for which no claim of essential plant
nutrients is made.
(12) "Manipulated manure" means a substance composed of the
excreta of an animal, plant remains, or a mixture of those
substances, for which a claim of essential plant nutrients is
made.
(13) "Official sample" means a sample taken by the service and
designated as official by the service.
(14) "Registrant" means a person who registers a commercial
fertilizer under this chapter.
(15) "Service" means the Texas Feed and Fertilizer Control
Service.
(16) "Specialty fertilizer" means a fertilizer distributed
primarily for nonfarm use, including use on or in home gardens,
lawns, shrubbery, flowers, golf courses, municipal parks,
cemeteries, greenhouses, or nurseries. The term does not include
the excreta of an animal, plant remains, or a mixture of those
substances, for which no claim of essential plant nutrients is
made.
(17) "Ton" means a net weight of 2,000 pounds avoirdupois or
1,000 kilograms metric.
(18) "Weight" means the net weight of a container of commercial
fertilizer expressed in either the avoirdupois or metric system.
Acts 1981, 67th Leg., p. 1140, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1,
Sec. 1, eff. Sept. 1, 1983.
Sec. 63.002. COMMERCIAL FERTILIZER. (a) Except as otherwise
provided by this section, a substance is a commercial fertilizer
subject to this chapter if it is:
(1) a fertilizer material;
(2) a mixed fertilizer;
(3) a customer-formula fertilizer; or
(4) another substance, material, or element, including a
pesticide, that is intended for use or is used as an ingredient
or component of a mixture of materials that is used, designed or
represented for use, or claimed to have value, in promoting plant
growth.
(b) Unprocessed, unpackaged, or unmanipulated lime, limestone,
marl, or gypsum is not a commercial fertilizer subject to this
chapter.
(c) The excreta of an animal, plant remains, or mixtures of
those substances, are not commercial fertilizers subject to this
chapter if no claim of essential plant nutrients is made.
(d) A plant food element or additive other than nitrogen,
phosphorus, or potassium, determinable by an acceptable
laboratory method, may be incorporated into a commercial
fertilizer and guaranteed only if, and in the manner, authorized
by rule of the director. Any additional plant food element or
additive is subject to the inspection, analysis, and other
provisions of this chapter.
Acts 1981, 67th Leg., p. 1141, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1,
Sec. 1, eff. Sept. 1, 1983.
Sec. 63.003. ADMINISTRATION. (a) The Texas Feed and Fertilizer
Control Service is under the direction of the director of the
Texas Agricultural Experiment Station, who is responsible for
exercising the powers and performing the duties assigned to the
service by this chapter.
(b) The service may employ personnel necessary to perform its
duties.
(c) The director may appoint a state chemist whose
responsibilities may include the making of chemical analyses and
tests required by this chapter.
Acts 1981, 67th Leg., p. 1142, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1,
Sec. 1, eff. Sept. 1, 1983.
Sec. 63.004. RULES; STANDARDS. Following a public hearing, the
service may adopt rules relating to the distribution of
commercial fertilizers that the service finds necessary to carry
into full effect the intent and meaning of this chapter including
rules defining and establishing standards for commercial
fertilizer. To the extent practicable, rules that define and
establish standards for commercial fertilizer shall be in harmony
with the official standards of the Association of American Plant
Food Control Officials.
Acts 1981, 67th Leg., p. 1142, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1,
Sec. 1, eff. Sept. 1, 1983.
Sec. 63.005. PUBLICATIONS. (a) At least annually, the service
shall publish:
(1) information concerning the sales of commercial fertilizers,
together with data on those sales that the service considers
advisable;
(2) the results of the analyses of official samples of
commercial fertilizers sold within the state as compared to the
guaranteed analyses of those fertilizers;
(3) a financial statement showing the receipt and expenditure of
funds under this chapter; and
(4) other information relating to fertilizer as the service
considers necessary or desirable to the public interest.
(b) The service shall prescribe the form of a publication
required under this section.
(c) The report on sales of commercial fertilizers shall
separately show information concerning the sales for the fall and
spring seasons.
(d) A publication under this section may not disclose the scope
of operations of any person.
Acts 1981, 67th Leg., p. 1142, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1,
Sec. 1, eff. Sept. 1, 1983.
Sec. 63.006. APPLICATION. (a) This chapter does not apply to,
restrict, or void the sale of a commercial fertilizer by an
importer, manufacturer, or manipulator to an importer,
manufacturer, or manipulator who mixes fertilizers for
distribution. This chapter does not prevent the free and
unrestricted shipment of a commercial fertilizer to a
manufacturer or manipulator who has registered the brand name as
required by this chapter.
(b) This chapter does not apply to the mixing, milling, or
processing of a material produced by a purchaser of commercial
fertilizer or acquired by the purchaser from a source other than
the person who mixed or processed the material.
Acts 1981, 67th Leg., p. 1142, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1,
Sec. 1, eff. Sept. 1, 1983.
Sec. 63.007. EFFECT ON OTHER LAW. This chapter preempts and
supersedes any ordinance, order, or rule adopted by a political
subdivision of this state relating to the regulation,
registration, packaging, labeling, sale, distribution, use, or
application of commercial fertilizer.
Added by Acts 2009, 81st Leg., R.S., Ch.
120, Sec. 1, eff. September 1, 2009.
SUBCHAPTER B. GRADES
Sec. 63.021. GRADE STATEMENTS. Any statement of the grade of a
commercial fertilizer shall be stated in whole numbers in the
following order:
(1) total nitrogen;
(2) available phosphoric acid; and
(3) soluble potash.
Acts 1981, 67th Leg., p. 1143, ch. 388, Sec. 1, eff. Sept. 1,
1981.
SUBCHAPTER C. PERMIT AND REGISTRATION
Sec. 63.031. PERMIT AND REGISTRATION REQUIRED. (a) A person
may not manufacture or distribute a commercial fertilizer in this
state without a valid current permit issued by the service, and a
person may not manufacture or distribute a commercial fertilizer
in this state, other than customer-formula fertilizer, unless the
person first registers the fertilizer with the service.
(b) An application for a permit or registration shall be
submitted on a form prescribed by the service.
(c) Registration is required for each distinct mixture,
formulation, or type of commercial fertilizer manufactured or
distributed in this state.
(d) A person is not required to register a commercial fertilizer
that has been registered by another person.
Acts 1981, 67th Leg., p. 1143, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1,
Sec. 2, eff. Sept. 1, 1983.
Sec. 63.032. APPLICATION FOR REGISTRATION. (a) Each
application for registration of a commercial fertilizer shall
include the following information relating to the fertilizer:
(1) the name and principal address of the person responsible for
manufacture and distribution;
(2) the brand or the name under which the fertilizer is to be
distributed; and
(3) other information that the service may by rule require.
(b) The service may prescribe and furnish forms for registration
of commercial fertilizers under this chapter. The service shall
provide a registrant with a copy of the approved registration.
Acts 1981, 67th Leg., p. 1143, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1,
Sec. 2, eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 498, Sec.
1, eff. June 20, 2003.
Sec. 63.033. TERM OF PERMIT AND REGISTRATION. A permit or
registration issued under this chapter is permanent unless:
(1) the service revokes, suspends, annuls, or amends the permit
or registration;
(2) the permittee or registrant withdraws or cancels the permit
or registration; or
(3) the service requires a new permit or new registration.
Acts 1981, 67th Leg., p. 1143, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1,
Sec. 2, eff. Sept. 1, 1983.
Sec. 63.034. REFUSAL OR REVOCATION OF PERMIT. Following notice
and a hearing, the service may revoke, suspend, annul, or amend
an existing permit or may refuse to issue a permit if it finds
that the permittee or applicant has:
(1) been convicted of a crime for which a permit may be revoked,
suspended, annulled, amended, or refused under Chapter 53,
Occupations Code;
(2) refused or after notice failed to comply with this chapter
and rules adopted under this chapter; or
(3) used fraudulent or deceptive practices in attempting evasion
of this chapter or a rule adopted under this chapter.
Acts 1981, 67th Leg., p. 1144, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1,
Sec. 2, eff. Sept. 1, 1983; Acts 2001, 77th Leg., ch. 1420, Sec.
14.721, eff. Sept. 1, 2001.
Sec. 63.035. REFUSAL OR REVOCATION OF REGISTRATION. Following
notice and a hearing, the service may revoke, suspend, annul, or
amend an existing registration of or may refuse a registration to
a commercial fertilizer if the service finds that:
(1) the commercial fertilizer:
(A) is not in compliance with this chapter or a rule adopted
under this chapter; or
(B) contains a pesticide as defined by Chapter 76 of this code
that has not been registered in accordance with that chapter; or
(2) the registrant or applicant has:
(A) been convicted of a crime for which registration may be
revoked, suspended, annulled, amended, or refused under Chapter
53, Occupations Code;
(B) refused or after notice failed to comply with this chapter
and rules adopted under this chapter; or
(C) used fraudulent or deceptive practices in attempted evasion
of this chapter or a rule adopted under this chapter.
Acts 1981, 67th Leg., p. 1144, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1,
Sec. 2, eff. Sept. 1, 1983; Acts 2001, 77th Leg., ch. 1420, Sec.
14.722, eff. Sept. 1, 2001.
SUBCHAPTER D. LABELING
Sec. 63.051. LABELING OF COMMERCIAL FERTILIZER. (a) Except as
provided by Subsection (d) of this section, each container of
commercial fertilizer distributed in this state, other than
customer-formula fertilizer, must have a label with the following
information:
(1) the name and principal address of the person responsible for
manufacture and distribution;
(2) the brand, grade, and name under which the fertilizer is to
be distributed;
(3) the net weight of the fertilizer in the container;
(4) the guaranteed analysis of the plant nutrients in the
fertilizer, listing the minimum percentages of primary,
secondary, and micro plant nutrients, and other additives, in
accordance with rules of the service; and
(5) other information that the service may by rule prescribe.
(b) The guaranteed analysis of any unacidulated mineral
phosphatic materials and basic slag shall guarantee both the
total and available phosphoric acid and the degree of fineness.
The guaranteed analysis of bone, tankage, and other organic
phosphate materials shall guarantee the total phosphoric acid.
All materials included in the guaranteed analysis are subject to
inspection and determination by laboratory procedures in
accordance with rules of the service.
(c) The manufacturer or other person distributing packaged
commercial fertilizer shall affix the label required by this
section to the container of fertilizer or cause it to be printed
on the side of the container in the manner prescribed by the
service. The label information must be grouped together and
plainly printed in English in the size or of type prescribed by
the service.
(d) The manufacturer or other person distributing commercial
fertilizer in bulk or in a container that holds an amount
exceeding 110 pounds dry weight or 55 gallons liquid shall at the
time of delivery furnish the purchaser with a written or printed
statement showing the information required by this section.
Acts 1981, 67th Leg., p. 1144, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1846, ch. 349, art. 1,
Sec. 3, eff. Sept. 1, 1983.
Sec. 63.052. MISLEADING LABEL. The label of a commercial
fertilizer may not be misleading in any particular.
Acts 1981, 67th Leg., p. 1144, ch. 388, Sec. 1, eff. Sept. 1,
1981.
Sec. 63.053. LABELING OF CUSTOMER-FORMULA FERTILIZER. A person
distributing customer-formula fertilizer in this state shall at
the time of delivery furnish to the purchaser a label showing:
(1) the name and address of the purchaser;
(2) the date of sale;
(3) the grade of the mixture;
(4) the guaranteed analysis of the plant nutrients and other
additives;
(5) the net weight of the fertilizer; and
(6) the name and address of the registrant.
Added by Acts 1983, 68th Leg., p. 1846, ch. 349, art. 1, Sec. 3,
eff. Sept. 1, 1983.
Sec. 63.054. GENERAL LABEL RESTRICTIONS. Except as authorized
by this chapter or a rule of the service, the label of a
commercial fertilizer may not:
(1) advertise, name, promote, emphasize, or otherwise direct
attention to one or more components or ingredients in the product
unless the percentage and common name of the component or
ingredient is clearly and prominently declared; or
(2) contain the name of another manufacturer or person or a
product of another manufacturer or person.
Acts 1981, 67th Leg., p. 1144, ch. 388, Sec. 1, eff. Sept. 1,
1980. Renumbered from Sec. 63.053 and amended by Acts 1983, 68th
Leg., p. 1846, ch. 349, art. 1, Sec. 3, eff. Sept. 1, 1983.
SUBCHAPTER E. FEES
Sec. 63.071. INSPECTION FEE. (a) For each state fiscal year,
the registrant of a commercial fertilizer shall pay to the
service an inspection fee as prescribed by this section.
(b) Except as otherwise provided by this section, the inspection
fee for a commercial fertilizer distributed in this state is 30
cents per ton of fertilizer. With the approval of the board, the
director may reduce or increase the inspection fee in increments
of two cents per ton per fiscal year.
(c) A person distributing in this state a commercial fertilizer
product packaged in individual containers of five pounds or less
shall pay, for each distinct commercial fertilizer product so
distributed, a flat rate inspection fee of $50 for each fiscal
year or part of a fiscal year in which the distribution is made.
(d) A registrant paying an inspection fee under Subsection (b)
of this section shall pay in advance a minimum annual inspection
fee of $100 per fiscal year. All advance inspection fees
collected under this section shall be credited towards the first
tonnage inspection owed by the registrant accruing in that fiscal
year.
(e) If more than one person is involved in the distribution of a
commercial fertilizer, the last person who distributes to a
dealer or consumer who is a nonregistrant shall pay the fee.
(f) A person is not required to pay an inspection fee on a
portion of a customer-formula fertilizer that is produced by the
purchaser or acquired by the purchaser from a source other than
the person who mixed, milled, or processed the mixture.
(g) The service may by rule provide that a person who
manufactures or distributes a commercial fertilizer solely for
investigational, experimental, or laboratory use by qualified
persons is not required to pay an inspection fee on the
fertilizer if the use is in the public interest.
(h) A person is not required to pay an inspection fee on compost
as defined by Section 361.421, Health and Safety Code.
Acts 1981, 67th Leg., p. 1145, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1848, ch. 349, art. 1,
Sec. 4, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 899, Sec.
1.16, eff. Aug. 30, 1993.
Sec. 63.072. TONNAGE REPORT AND INSPECTION FEE PAYMENT. (a)
The person responsible for paying a fertilizer inspection fee
shall file with the service a sworn report either stating that no
tonnage of commercial fertilizer was distributed during the
preceding reporting period or setting forth the tonnage of all
the commercial fertilizer that the person manufactured or
distributed in this state during the preceding reporting period.
The person shall file the report:
(1) quarterly if the total amount of inspection fees in a year
is $100 or more; or
(2) annually if the total amount of inspection fees in a year is
less than $100.
(b) Each tonnage report must be accompanied by payment of the
inspection fee due based on the tonnage reported for that quarter
or year, as applicable.
(c) A tonnage report and inspection fee payment is due:
(1) on or before the 31st day following the last day of
November, February, May, and August, for persons reporting
quarterly; and
(2) on or before the 31st day following the last day of August,
for persons reporting annually.
(d) The service may prescribe and furnish forms as necessary
under this section.
Acts 1981, 67th Leg., p. 1145, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1848, ch. 349, art. 1,
Sec. 4, eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 682, Sec.
1, eff. Sept. 1, 2003.
Sec. 63.073. PENALTY FOR LATE FILING OR PAYMENT. (a) If a
person does not file a report or pay the inspection fee as
required by Section 63.072, the registrant shall pay a penalty
equal to 15 percent of the inspection fee due or $50, whichever
is greater.
(b) A penalty, together with the delinquent inspection fee, is
due before the 61st day following the last day of the quarter,
for quarterly reports, or of August, for annual reports. The
service shall cancel the registration of a registrant who fails
to pay the penalty and delinquent inspection fee within that time
period.
Acts 1981, 67th Leg., p. 1145, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1848, ch. 349, art. 1,
Sec. 4, eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 682, Sec.
2, eff. Sept. 1, 2003.
Sec. 63.074. RECORDS; ADDITIONAL REPORTS; AUDITS. (a) For the
purpose of determining the accurate tonnage of commercial
fertilizers distributed in this state or identifying or verifying
tonnage reports, the service may require each registrant to
maintain records or file additional reports.
(b) The service is entitled to examine at reasonable times the
records maintained under this section.
(c) A registrant shall preserve and maintain in usable condition
all records required by this section and shall retain the records
for a period of at least two years. The service may require a
registrant to retain records for a period longer than two years
if the service determines it to be in the public interest.
(d) If a registrant is located outside this state, the
registrant shall maintain the records and information required by
this section in this state or pay all costs incurred in the
auditing of records at another location. The service shall
promptly furnish to the registrant an itemized statement of any
costs incurred in an out-of-state audit and the registrant shall
pay the costs before the 31st day following the date of the
statement.
Acts 1981, 67th Leg., p. 1145, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1848, ch. 349, art. 1,
Sec. 4, eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 682, Sec.
3, eff. Sept. 1, 2003.
Sec. 63.075. DISPOSITION AND USE OF FEES. (a) The service
shall deposit fees collected under this subchapter in the same
manner as other local institutional funds of The Texas A&M
University System. The fees shall be set apart as a special fund
to be known as the Texas fertilizer control fund.
(b) The Texas fertilizer control fund shall be used, with the
approval and consent of the board, for administering and
enforcing this chapter, including paying the cost of:
(1) salaries;
(2) equipment and facilities;
(3) registration;
(4) publication of bulletins and reports; and
(5) inspection, sampling, and analysis.
(c) Any fees collected under this subchapter that, in the
judgment of the board, are not needed for the proper and
efficient enforcement and administration of this chapter may,
with approval of the board, be used for research relative to the
value of commercial fertilizers.
Acts 1981, 67th Leg., p. 1146, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1850, ch. 349, art. 1,
Sec. 5, eff. Sept. 1, 1983.
SUBCHAPTER F. INSPECTION, SAMPLING, AND ANALYSIS
Sec. 63.091. INSPECTION AND SAMPLING; ENTRY POWER. In order to
determine if commercial fertilizer is in compliance with this
chapter, the service is entitled to:
(1) enter during regular business hours and inspect any place of
business, mill, plant, building, or vehicle, and to open any bin,
vat, or parcel, that is used in the manufacture, transportation,
importation, sale, or storage of a commercial fertilizer or is
suspected of containing a commercial fertilizer; and
(2) take samples from fertilizer found during that inspection.
Acts 1981, 67th Leg., p. 1146, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1851, ch. 349, art. 1,
Sec. 6, eff. Sept. 1, 1983.
Sec. 63.092. PROCEDURE FOR SAMPLING AND ANALYSIS. The service
by rule shall prescribe the procedures for sampling and analysis
of commercial fertilizers. The procedures must, to the extent
practicable, be in accordance with the official methods of the
Association of Official Analytical Chemists or other methods that
the service considers authentic by research and investigation.
Acts 1981, 67th Leg., p. 1146, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1851, ch. 349, art. 1,
Sec. 6, eff. Sept. 1, 1983.
Sec. 63.093. IDENTIFICATION OF SAMPLE. (a) Each sample taken
shall be sealed with a label placed on the container of the
sample showing:
(1) the serial number of the sample;
(2) the date on which the sample was taken; and
(3) the signature of the person who took the sample.
(b) Each sample shall be sent to the service. In addition, a
report shall be sent to the service stating:
(1) the name or brand of commercial fertilizer sampled;
(2) the serial number of the sample;
(3) the manufacturer or guarantor of the sample, if known;
(4) the name of the person in possession of the lot samples;
(5) the date and place of taking the sample; and
(6) the name of the person who took the sample.
(c) For the purpose of properly identifying a sample with the
lot sampled, the service is entitled to examine and copy any
invoice, transportation record, or other record pertaining to the
lot.
Acts 1981, 67th Leg., p. 1146, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1851, ch. 349, art. 1,
Sec. 7, eff. Sept. 1, 1983.
Sec. 63.094. INDEPENDENT ANALYSIS OF SAMPLE. (a) If the
service finds through chemical analysis or other method that a
commercial fertilizer is in violation of a provision of this
chapter, the service shall notify the manufacturer or other
person who caused the fertilizer to be distributed. The notice
must be in writing and give full details of the findings of the
service.
(b) After receiving a notice under Subsection (a) of this
section, the manufacturer or other person who caused the
fertilizer to be distributed may request that the service submit
portions of the sample analyzed to other chemists for independent
analysis. After receiving a request, the service shall submit two
portions of the sample analyzed to two qualified chemists
selected by the service. If requested, the service shall also
submit one portion of the sample to the person requesting
independent analysis. A request under this subsection must be
filed with the service before the 16th day following the day on
which notice is given.
(c) Each of the chemists selected by the service under
Subsection (b) of this section shall analyze the portion of the
sample and certify findings to the service under oath. The
findings shall be prepared in duplicate and the service shall
forward one copy of each chemist's findings to the person who
requested independent analysis.
(d) The three chemical analyses obtained under this section may
be considered in determining whether a violation of this chapter
has occurred.
(e) Except as provided by this subsection, the person requesting
independent analysis under this section shall pay the costs of
the analysis. If as a result of the independent analysis the
service determines that a violation has not occurred, the service
shall pay the costs of the analysis.
Acts 1981, 67th Leg., p. 1147, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1852, ch. 349, art. 1,
Sec. 8, eff. Sept. 1, 1983.
Sec. 63.095. TESTING OF SAMPLES ON REQUEST. In accordance with
the rules of the director, any person may submit a sample of a
commercial fertilizer to the director for analysis. The results
of the analysis shall be for informational purposes only, may not
identify the manufacturer, and may not be published.
Acts 1981, 67th Leg., p. 1147, ch. 388, Sec. 1, eff. Sept. 1,
1981.
SUBCHAPTER G. ENFORCEMENT; REMEDIES
Sec. 63.121. STOP-SALE ORDER. (a) If the service has
reasonable cause to believe that a commercial fertilizer is being
distributed in violation of a provision of this chapter, the
service shall affix to the container of the fertilizer a written
notice containing:
(1) an order to stop the sale of the fertilizer; and
(2) a warning to all persons not to dispose of the fertilizer in
any manner until the service or a court gives permission or until
the stop-sale order expires.
(b) If the service finds that a commercial fertilizer is in
compliance with this chapter, the service shall immediately
remove the stop-sale order.
(c) A stop-sale order expires at the end of the 30th day
following the day on which it was affixed unless, prior to that
time, the service has instituted proceedings under Section 63.122
of this code to condemn the fertilizer.
Acts 1981, 67th Leg., p. 1147, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1,
Sec. 9, eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 682, Sec.
4, eff. Sept. 1, 2003.
Sec. 63.122. CONDEMNATION OF FERTILIZER. (a) If, after
examination and analysis, the service finds that a commercial
fertilizer is in violation of a provision of this chapter, the
service shall petition the district or county court in whose
jurisdiction the fertilizer is located for an order for the
condemnation and confiscation of the fertilizer. If the court
determines that the fertilizer is in violation of this chapter,
the fertilizer shall be disposed of by sale or destruction in
accordance with the order of the court.
(b) If a condemned commercial fertilizer is sold under
Subsection (a) of this section, the proceeds of the sale, less
court costs and charges, shall be paid into the state treasury.
(c) If the court finds that a violation of this chapter may be
corrected by proper processing or labeling, the court may order
that the fertilizer be delivered to the registrant for processing
or labeling under the supervision of the service. Before entering
that order, the court shall:
(1) enter the decree;
(2) require that all costs, fees, and expenses be paid; and
(3) require the registrant to post good and sufficient bond
conditioned on the proper labeling and processing of the
fertilizer.
(d) The registrant of the fertilizer shall pay all costs
incurred by the service in the supervision of labeling or
processing under Subsection (c) of this section. The court shall
return the bond to the registrant when the service notifies the
court that the commercial fertilizer is no longer in violation of
this chapter and that the registrant has paid the expenses of
supervision.
Acts 1981, 67th Leg., p. 1148, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1,
Sec. 9, eff. Sept. 1, 1983.
Sec. 63.123. WARNINGS. If the service determines that a
violation of this chapter is of a minor nature and that the
public interest will be served and protected by the issuance of a
written warning, the service may issue the warning instead of
proceeding to condemn the fertilizer, report the violation for
prosecution, or take other administrative action.
Acts 1981, 67th Leg., p. 1148, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1,
Sec. 9, eff. Sept. 1, 1983.
Sec. 63.124. INJUNCTION. (a) The service may sue in the name
of the director to enjoin a violation of this chapter.
(b) The service may request a prosecuting attorney or the
attorney general to sue to enjoin a violation or threatened
violation of this chapter.
Amended by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1, Sec.
9, eff. Sept. 1, 1983.
Sec. 63.125. SUIT TO RECOVER FEES. The service may sue to
recover an inspection fee or penalty due under Subchapter E of
this chapter. Venue for a suit under this section is in Brazos
County.
Acts 1981, 67th Leg., p. 1148, ch. 388, Sec. 1, eff. Sept. 1,
1981. Renumbered from Sec. 63.124 and amended by Acts 1983, 68th
Leg., p. 1853, ch. 349, art. 1, Sec. 9, eff. Sept. 1, 1983.
Sec. 63.126. PROSECUTIONS. Each district attorney, criminal
district attorney, or county attorney to whom the service reports
a violation of this chapter shall cause appropriate proceedings
to be instituted and prosecuted in the proper court without delay
in the manner provided by law.
Acts 1981, 67th Leg., p. 1148, ch. 388, Sec. 1, eff. Sept. 1,
1981. Renumbered from Sec. 63.125 and amended by Acts 1983, 68th
Leg., p. 1853, ch. 349, art. 1, Sec. 9, eff. Sept. 1, 1983.
Sec. 63.127. VENUE FOR CIVIL AND CRIMINAL ACTIONS. Except as
provided by Section 63.125 of this chapter, venue for a civil
action or criminal prosecution under this chapter is in the
county in which the commercial fertilizer is located at the time
the alleged violation is discovered by or made known to the
service.
Added by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1, Sec. 9,
eff. Sept. 1, 1983.
Sec. 63.128. APPEAL OF ADMINISTRATIVE ORDER OR RULING. (a) A
person at interest who is aggrieved by an order or ruling of the
service may appeal the order or ruling in the manner provided for
contested cases under Chapter 2001, Government Code.
(b) Appeal under this section is by trial de novo.
Acts 1981, 67th Leg., p. 1148, ch. 388, Sec. 1, eff. Sept. 1,
1981. Renumbered from Sec. 63.126 and amended by Acts 1983, 68th
Leg., p. 1853, ch. 349, art. 1, Sec. 9, eff. Sept. 1, 1983.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff.
Sept. 1, 1995.
SUBCHAPTER H. PENALTIES
Sec. 63.141. GENERAL PENALTY. (a) A person commits an offense
if the person violates a provision of this chapter.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously committed an
offense under this subchapter, in which event it is a Class B
misdemeanor.
Acts 1981, 67th Leg., p. 1149, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1,
Sec. 10, eff. Sept. 1, 1983.
Sec. 63.142. DISTRIBUTION OF MISBRANDED FERTILIZER. (a) A
person commits an offense if the person distributes, conspires to
distribute, or causes another person to distribute commercial
fertilizer that:
(1) carries a false or misleading statement on, attached to, or
accompanying the container;
(2) makes a false or misleading statement concerning its
agricultural value on the container or in any advertising matter
accompanying or associated with it;
(3) is of a composition, quantity, or quality that is below or
is different from that which it is represented to be on its
label;
(4) has a container that is made, formed, or filled in a manner
that is misleading; or
(5) purports to be or is represented as a commercial fertilizer
for which a definition of identity and a standard have been
prescribed by rule, but does not conform to the definition or
standard.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has been previously convicted
of an offense under this subchapter, in which event it is a Class
B misdemeanor.
Acts 1981, 67th Leg., p. 1149, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1,
Sec. 10, eff. Sept. 1, 1983.
Sec. 63.143. DISTRIBUTION OF ADULTERATED FERTILIZER. (a) A
person commits an offense if the person distributes, conspires to
distribute, or causes another person to distribute a commercial
fertilizer that:
(1) has been damaged in a manner that reduces its value;
(2) has damage or an inferiority that has been concealed;
(3) has added to it a substance that increases its bulk or
weight, reduces its quality or strength, or makes it appear
better or of greater value than it is;
(4) has had an ingredient omitted or extracted, in whole or in
part; or
(5) contains or bears a poisonous or deleterious substance that
may render it injurious to plants under ordinary conditions of
use.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously been convicted
of an offense under this subchapter, in which event it is a Class
B misdemeanor.
Acts 1981, 67th Leg., p. 1149, ch. 388, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1,
Sec. 10, eff. Sept. 1, 1983.
Sec. 63.144. DISTRIBUTION OF COMMERCIAL FERTILIZER WITHOUT
REGISTRATION, LABELING, OR PAYMENT OF INSPECTION FEE. (a) A
person commits an offense if the person distributes, conspires to
distribute, or causes another person to distribute commercial
fertilizer:
(1) that is required to be registered but is not registered in
accordance with Subchapter C of this chapter;
(2) that is not labeled in accordance with Subchapter D of this
chapter; or
(3) for which an inspection fee has not been paid in accordance
with Subchapter E of this chapter.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously been convicted
of an offense under this subchapter, in which event it is a Class
B misdemeanor.
Added by Acts 1983, 68th Leg., p. 1856, art. 1, ch. 349, Sec. 10,
eff. Sept. 1, 1983.
Sec. 63.145. REFUSAL OF INSPECTION OR SAMPLING. (a) A person
commits an offense if the person refuses, conspires to refuse, or
causes another person to refuse to permit entry, inspection,
sampling, or the examination and copying of invoices or
transportation records under Subchapter F of this chapter.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously been convicted
of an offense under this subchapter, in which event it is a Class
B misdemeanor.
Added by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1, Sec. 10,
eff. Sept. 1, 1983.
Sec. 63.146. REFUSAL TO PAY INSPECTION FEE OR SUBMIT RECORDS.
(a) A person commits an offense if the person refuses, conspires
to refuse, or causes another person to refuse to make records
available, furnish reports, permit the examination of records, or
pay an inspection fee in accordance with Subchapter E of this
chapter.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously been convicted
of an offense under this subchapter, in which event it is a Class
B misdemeanor.
Added by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1, Sec. 10,
eff. Sept. 1, 1983.
SUBCHAPTER I. AMMONIUM NITRATE
Sec. 63.151. DEFINITIONS. In this subchapter:
(1) "Ammonium nitrate" means ammonium salt of nitric acid that
contains more than 33 percent nitrogen, one-half of which is the
50 ammonium form and one-half of which is the nitrate form.
(2) "Ammonium nitrate material" means solid fertilizer that
includes ammonium nitrate as a component, if the fertilizer's
nitrogen content derived from the ammonium nitrate is at least 28
percent of the fertilizer by weight.
Added by Acts 2007, 80th Leg., R.S., Ch.
483, Sec. 1, eff. September 1, 2007.
Sec. 63.152. REGISTRATION REQUIRED. (a) A person may not
produce, store, transfer, offer for sale, or sell ammonium
nitrate or ammonium nitrate material unless the person holds a
certificate of registration issued by the service under this
subchapter.
(b) An application for a registration submitted by an applicant
who owns an ammonium nitrate facility must be:
(1) submitted on a form prescribed by the service that includes:
(A) the name, address, and telephone number of each ammonium
nitrate facility owned by the applicant; and
(B) the name of the person designated by the applicant as the
point of contact for each facility owned by the applicant; and
(2) accompanied by a fee in an amount sufficient to cover the
service's costs to administer this subchapter.
(c) A person who engages in the sale of ammonium nitrate or
ammonium nitrate material must display the person's registration
in conspicuous public view in the person's place of business.
Added by Acts 2007, 80th Leg., R.S., Ch.
483, Sec. 1, eff. September 1, 2007.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
120, Sec. 2, eff. September 1, 2009.
Sec. 63.153. SECURITY REQUIREMENTS. A person who engages in the
sale of ammonium nitrate or ammonium nitrate material shall take
steps to secure the ammonium nitrate or ammonium nitrate material
stored at the person's facility against vandalism, theft, or
other unauthorized access, including:
(1) ensuring that a storage facility is fenced or otherwise
enclosed and locked when unattended;
(2) inspecting a storage facility daily for signs of vandalism
and to verify its structural integrity; and
(3) establishing and maintaining ongoing inventory control
procedures for the ammonium nitrate or ammonium nitrate material.
Added by Acts 2007, 80th Leg., R.S., Ch.
483, Sec. 1, eff. September 1, 2007.
Sec. 63.154. SALE OF AMMONIUM NITRATE. (a) Before completing a
sale of ammonium nitrate or ammonium nitrate material, a person
that engages in those sales shall:
(1) require the person making the purchase to:
(A) display a driver's license or other form of identification
containing the person's photograph;
(B) provide the other personal information required by
Subdivision (2); and
(C) sign for the purchase; and
(2) make a record of the sale, including:
(A) the name of the person making the purchase;
(B) the date of the purchase;
(C) the purchaser's address, date of birth, and phone number;
(D) the form of identification the purchaser presented;
(E) whether the purchase is being made on behalf of another
person; and
(F) the amount and brand name of the ammonium nitrate or
ammonium nitrate material purchased.
(b) The service shall:
(1) adopt rules allowing a person to refuse to sell ammonium
nitrate or ammonium nitrate material based on the season or the
location of the sale; and
(2) distribute forms to each person registered under this
subchapter to be used to record the information required under
Subsection (a).
Added by Acts 2007, 80th Leg., R.S., Ch.
483, Sec. 1, eff. September 1, 2007.
Sec. 63.155. MAINTENANCE OF RECORDS. A person who offers to
sell or sells ammonium nitrate or ammonium nitrate material shall
maintain each record made under Section 63.154 until at least the
second anniversary of the date the record is made and shall make
each record only available on request by:
(1) the Office of the Texas State Chemist;
(2) the Department of Public Safety; or
(3) a law enforcement agency of the United States.
Added by Acts 2007, 80th Leg., R.S., Ch.
483, Sec. 1, eff. September 1, 2007.
Sec. 63.156. SUSPENSION OF REGISTRATION. If the service finds
that a person registered under this subchapter offered to sell or
sold ammonium nitrate or ammonium nitrate material in violation
of this subchapter or a rule adopted under this subchapter, the
service may:
(1) suspend a person's registration for a period of 90 days for
a first violation; and
(2) suspend a person's registration for a period of at least 90
days or revoke the person's registration for a second or
subsequent violation.
Added by Acts 2007, 80th Leg., R.S., Ch.
483, Sec. 1, eff. September 1, 2007.
Sec. 63.157. CRIMINAL PENALTY. (a) A person commits an offense
if the person:
(1) tampers with ammonium nitrate or ammonium nitrate material
stored on the property of another; or
(2) presents false identification to purchase ammonium nitrate
or ammonium nitrate material.
(b) A person commits an offense if the person purchases ammonium
nitrate or ammonium nitrate material with the intent to
manufacture an explosive device.
(c) A person commits an offense if the person offers to sell or
sells ammonium nitrate or ammonium nitrate material and does not
hold a registration issued under this subchapter.
(d) An offense under Subsection (a) or (c) is a Class A
misdemeanor.
(e) An offense under Subsection (b) is a felony of the third
degree.
(f) It is an exception to the application of Subsection (b) that
the person holds a permit or license issued under 18 U.S.C.
Section 843.
(g) If conduct constituting an offense under this section is
also an offense under another law, the actor may be prosecuted
under this section, the other law, or both.
Added by Acts 2007, 80th Leg., R.S., Ch.
483, Sec. 1, eff. September 1, 2007.