Chapter 914 Oregon Laws 2001
AN ACT
HB 3815
Relating to agriculture;
creating new provisions; amending ORS 468B.150, 468B.165, 480.200 and 561.144;
repealing ORS 633.310, 633.320, 633.330, 633.335, 633.340, 633.343, 633.345,
633.350, 633.361, 633.370, 633.380, 633.390, 633.420, 633.430, 633.440,
633.450, 633.460, 633.470, 633.475, 633.485, 633.495 and 633.500; appropriating
money; and limiting expenditures.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
Sections 2 to 23 of this 2001 Act are
added to and made a part of ORS chapter 633.
SECTION 2.
As used in sections 2 to 23 of this 2001
Act:
(1) “Agricultural
amendment” means a mixed or unmixed synthetic organic chemical substance, a
chemically or physically modified natural substance, a naturally occurring
substance or a manufacturing by-product, or combination thereof, intended as a
source of plant food, to induce crop yields or plant growth or to produce any
physical or chemical change in the soil. “Agricultural amendment” does not
include:
(a) Fertilizer products;
(b) Agricultural mineral
products;
(c) Lime products;
(d) Hays;
(e) Straws;
(f) Peat;
(g) Leaf mold;
(h) Sands;
(i) Expanded silicates;
(j) Biosolids-derived
products, compost and animal or vegetable manures that are not packaged and do
not contain a grade statement or guaranteed analysis;
(k) Biosolids, domestic
septage and domestic wastewater treatment facility solids regulated under ORS
chapters 468 and 468B; and
(L) Reclaimed water or
treated effluent regulated under ORS 468.020, 468B.010 and 468B.015.
(2) “Agricultural
mineral” means a mineral substance, mixture of mineral substances or mixture of
mineral and organic substances containing less than five percent of available
nitrogen (N), available phosphate (P2O5) or soluble
potash (K2O), singly, collectively or in combination, designed for
use principally as a source of plant food, in inducing increased crop yields or
plant growth or producing any physical or chemical change in the soil.
“Agricultural mineral” does not include:
(a) Fertilizer products;
(b) Agricultural
amendment products;
(c) Lime products;
(d) Sand;
(e) Soil;
(f) Biosolids-derived
products, compost and animal or vegetable manures that are not packaged and do
not contain a grade statement or guaranteed analysis;
(g) Biosolids, domestic
septage and domestic wastewater treatment facility solids regulated under ORS
chapters 468 and 468B; and
(h) Reclaimed water or
treated effluent regulated under ORS 468.020, 468B.010 and 468B.015.
(3) “Available
phosphate” means the sum of the water soluble and citrate soluble phosphate.
(4) “Bulk” or “bulk
sale” is the sale, offering for sale or delivery of a fertilizer, agricultural
mineral, agricultural amendment or lime product or of a custom mix, in
unpackaged form, such as in open containers, closed or open tote boxes, closed
or open tanks, closed or open trailers, spreader trucks or other types of
containers, vehicles or conveyances as determined by State Department of
Agriculture rule.
(5) “Compost” means a
substance derived primarily or entirely from the decomposition of vegetative or
animal organic material that is sold or offered for sale for the purpose of
promoting or stimulating plant growth and to which no fertilizer, agricultural
mineral, agricultural amendment or lime product is added other than to promote
decomposition.
(6) “Custom mix” means a
mixture of fertilizer, agricultural mineral, agricultural amendment or lime
product, each lot or batch of which is mixed according to the specific
instructions of or is prescribed for the special use of the final purchaser.
(7) “Department” means
the State Department of Agriculture.
(8) “Director” means the
Director of Agriculture.
(9) “Distributor” means
a person who imports, consigns, sells or offers for sale, barters, exchanges or
otherwise facilitates the supply of fertilizer, agricultural mineral,
agricultural amendment or lime product.
(10) “Fertilizer” means
any substance, or any combination or mixture of substances, that is designed
for use primarily as a source of plant food, in inducing increased crop yields
or plant growth, or producing any physical or chemical change in the soil, and
that contains five percent or more of available nitrogen (N), available
phosphate (P2O5) or soluble potash (K2O),
singly, collectively or in combination. “Fertilizer” does not include:
(a) Agricultural mineral
products;
(b) Agricultural
amendment products;
(c) Lime products;
(d) Hays;
(e) Straws;
(f) Peat;
(g) Leaf mold;
(h) Biosolids-derived
products, compost and unpackaged animal or vegetable manures that do not
contain a grade statement or guaranteed analysis;
(i) Biosolids, domestic
septage and domestic wastewater treatment facility solids regulated under ORS
chapters 468 and 468B; and
(j) Reclaimed water and
treated effluent regulated under ORS 468.020, 468B.010 and 468B.015.
(11) “Grade” means the
minimum percentage claimed for available nitrogen (N), available phosphate (P2O5)
or soluble potash (K2O) stated in the same terms, order and
percentages as the guaranteed analysis.
(12) “Guaranteed
analysis” means the minimum percentage of the following claimed to be present
in a product:
(a) Primary nutrients;
(b) Secondary nutrients;
(c) Micronutrients;
(d) Neutralizing
capability; or
(e) Substances claimed
to induce crop yields or plant growth or to produce any physical or chemical
change in the soil.
(13) “Label” means all
written, printed or graphic matter on the immediate container or on a statement
or invoice accompanying any fertilizer, agricultural mineral, agricultural
amendment or lime product.
(14) “Labeling” means a
printed or verbal representation used to promote the sale of any fertilizer,
agricultural mineral, agricultural amendment or lime product, including but not
limited to a representation by means of:
(a) Brochures;
(b) Posters;
(c) Internet;
(d) Television; and
(e) Radio.
(15) “Lime” means any
substance or mixture of substances whose calcium and magnesium compounds are
capable of neutralizing soil acidity.
(16) “Lime score” means
a numerical expression of the quality of lime, as determined by the department
by rule.
(17) “Manufacture” means
to compound, produce, granulate, mix, blend, repackage or otherwise alter the
composition of fertilizer, agricultural mineral, agricultural amendment or lime
product.
(18) “Micronutrient”
means boron (B), chlorine (Cl), cobalt (Co), copper (Cu), iron (Fe), manganese
(Mn), molybdenum (Mo), sodium (Na) or zinc (Zn).
(19) “Official sample”
means any representative sample of product taken by the department or a
representative of the department and designated as official.
(20) “Package” means any
closed container, regardless of size, but does not mean the receptacle in which
bulk product is sold, offered for sale or delivered.
(21) “Percent” or
“percentage” means percentage by weight.
(22) “Phosphate” means
the amount of pentavalent phosphorus present in the material calculated as
phosphorus pentoxide (P2O5) and expressed as available
phosphate.
(23) “Primary nutrient”
means nitrogen (N), available phosphate (P2O5) or soluble
potash (K2O).
(24) “Product” means a
readily distinguishable, individually labeled substance containing fertilizer,
agricultural mineral, agricultural amendment or lime.
(25) “Registrant” means
the person who registers a fertilizer, agricultural mineral, agricultural
amendment or lime product under section 10 of this 2001 Act.
(26) “Secondary
nutrient” means calcium (Ca), magnesium (Mg) or sulfur (S).
(27) “Ton” means 2,000
pounds avoirdupois.
(28) “Waste-derived
product” means any fertilizer, agricultural mineral, agricultural amendment or
lime product derived in whole or in part from hazardous waste as defined in ORS
466.005 (7) or in rules adopted thereunder, solid waste as defined in ORS 459.005
(24) or in rules adopted thereunder, or industrial waste as defined in ORS
468B.005 (2) or in rules adopted thereunder. “Waste-derived product” does not
include:
(a) Biosolids,
biosolids-derived products, domestic septage and domestic wastewater treatment
facility solids regulated under ORS chapters 468 and 468B; or
(b) Reclaimed water or
treated effluent regulated under ORS 468.020, 468B.010 and 468B.015.
SECTION 3.
Sections 2 to 23 of this 2001 Act apply
only to the extent that they are consistent with ORS chapter 634. The
provisions of sections 2 to 23 of this 2001 Act do not supersede the provisions
of ORS chapter 634.
SECTION 4.
(1) A person may not sell, offer for
sale or distribute fertilizer, agricultural mineral, agricultural amendment or
lime product, in package or in bulk, unless there is a printed label attached
or applied to the package, or, in the case of bulk sale, a separate document
that physically accompanies the shipment and is furnished to the user or
purchaser when each separate delivery is made, or when the last delivery is
made of the entire lot or sale thereof. The printed label must include the
following:
(a) The name under which
the product is registered or sold.
(b) The net weight or
volume.
(c) The name and mailing
address of the manufacturer, distributor or registrant.
(d) The product grade if
primary nutrients are claimed.
(e) A guaranteed
analysis. The guaranteed analysis must follow the statement, “GUARANTEED
ANALYSIS.” Guarantees must be based on a laboratory method of analysis approved
by the State Department of Agriculture. The guaranteed analysis shall be stated
on an “as is” basis at the time the fertilizer, agricultural mineral,
agricultural amendment or lime product is offered for sale or distributed into
or within this state. Primary nutrients, secondary nutrients and micronutrients
that are claimed or advertised must be individually guaranteed.
(f) A derivation
statement declaring the sources for all primary and secondary nutrients,
micronutrients and non-plant food ingredients guaranteed. The statement must be
listed below the completed guaranteed analysis. Abbreviations, brand names,
trademarks and trade names may not appear in the derivation statement, but may
appear as part of the product name in an area of the label that is separate
from the derivation statement.
(g) The identity and
amount of ingredients other than primary nutrients, secondary nutrients and
micronutrients that are claimed or advertised. The identity and amount must be
guaranteed and determinable by laboratory methods approved by the department.
The source of such ingredients shall be placed on the label as follows:
____________________________________________________________________________
ALSO CONTAINS
NON-PLANT
FOOD INGREDIENT(S):
____% Humic Acids
(Derived from __________)
____% Other
Determinable Non-Plant
Food Ingredients
______________________________________________________________________________
(h) A unique
identifier for custom mixed products.
(i) An Internet address
that leads to a department website that is accessible to the public and
contains product-specific information. The department shall adopt rules
establishing the date for label compliance and the nature of product
information that must be available through the website. The information,
accessible by product name, ingredient or reportable substance, shall include,
at a minimum:
(A) The name of any
product identified as waste-derived in an application for registration as
provided in section 10 (9) of this 2001 Act;
(B) The Standard
Industrial Classification code of the facility that generated each
waste-derived product or waste-derived ingredient of a product identified in
subparagraph (A) of this paragraph; and
(C) The type and level
of metals and other substances required by the department by rule to be
reported for registration of any product as provided in section 10 (10) of this
2001 Act.
(2)(a)(A) Primary
nutrients that are claimed or advertised must be guaranteed and placed on the
label as follows:
______________________________________________________________________________
GUARANTEED
ANALYSIS:
Total Nitrogen (N) ____%
____% Ammoniacal
Nitrogen
____% Nitrate Nitrogen
____% Water Soluble
Organic Nitrogen or
other recognized and
determinable
forms of Nitrogen
____% Water Insoluble
Organic Nitrogen or
Water Insoluble
Nitrogen
Available Phosphate
(P2O5) ____%
Soluble Potash (K2O) ____%
______________________________________________________________________________
(B) The guarantees
for the forms of nitrogen must add up to the total nitrogen guarantee and may
be shown by subscript. The forms of nitrogen may be listed in an order other
than the order listed in this subsection.
(b) In addition to
guarantees of available phosphate (P2O5) and soluble
potash (K2O), the percentage of phosphorus (P) and potassium (K) may
be shown by indentation and subscript as prescribed by the department.
Phosphorous acid (expressed as H3PO3 or PO3) cannot be claimed as a source of
available phosphate.
(c) Unacidulated mineral
phosphatic materials, bone, tankage or other phosphatic materials shall be
guaranteed on the label as follows:
______________________________________________________________________________
Available Phosphate
(P2O5) ____%
____% Total
Phosphate
____% Insoluble
Phosphate
______________________________________________________________________________
(3) The following
secondary nutrients and micronutrients that are claimed or advertised must be
guaranteed, must be placed on the label in the same order as listed in this
subsection and must immediately follow the guaranteed analysis. The guaranteed
analysis of secondary nutrients and micronutrients shall be made on the
elemental basis. When a chelated, water soluble or other form of plant nutrient
is claimed or advertised in addition to the elemental form of the same
secondary nutrient or micronutrient, the form and percentage must be guaranteed
separately. Except for products defined by the department by rule, the minimum
percentages that may be accepted for registration are as follows:
______________________________________________________________________________
Calcium (Ca) 1.0000%
Magnesium (Mg) 0.5000%
Sulfur (S) 1.0000%
Boron (B) 0.0200%
Chlorine (Cl) 0.1000%
Cobalt (Co) 0.0005%
Copper (Cu) 0.0500%
Iron (Fe) 0.1000%
Manganese (Mn) 0.0500%
Molybdenum (Mo) 0.0005%
Sodium (Na) 0.1000%
Zinc (Zn) 0.0500%
______________________________________________________________________________
(4) The label for
any fertilizer, agricultural amendment, agricultural mineral or lime product
with added boron greater than 0.1 percent or added molybdenum greater than
0.001 percent must include a warning or cautionary statement that the product
contains added boron or molybdenum and is to be used only according to the
manufacturer's recommendations or directions.
(5)(a) If a fertilizer,
agricultural mineral or agricultural amendment product is intended to be
microbiological inoculum, the label must include:
(A) A product expiration
date;
(B) The number of each
viable organism per milliliter for liquid products or per gram for dry
products; and
(C) The identification
of each viable organism expressed as genus and species, and, if applicable,
strain.
(b) If a fertilizer,
agricultural mineral or agricultural amendment product is derived from a
microbiological process or culture but is not intended to be a microbiological
inoculum, the product label must include a statement that the product is not a
viable culture.
(6) A product ingredient
may not be listed, claimed or guaranteed on the label or labeling without prior
approval by the department.
SECTION 5.
In addition to the labeling requirements
under section 4 of this 2001 Act, the label for a lime product must include the
following:
(1) The name of the
particular form of lime. Forms of lime may include, but are not limited to,
ground limestone, shells, burnt lime, lime hydrate, sugar lime, residue lime,
dolomitic lime, lime sludge and waste lime.
(2) The guaranteed
analysis, stating:
(a) The minimum percentage
of calcium oxide (CaO) or calcium carbonate (CaCO3);
(b) The minimum
percentage of magnesium oxide (MgO) or magnesium carbonate (MgCO3);
(c) The minimum total
neutralizing power expressed in terms of calcium carbonate equivalent (CCE);
(d) The percentage of
product that will pass, respectively, a 100-mesh, 40-mesh, 20-mesh and 10-mesh
sieve. The mesh size declaration may include a declaration of the percentage of
product that will pass additional mesh sizes, but the mesh sizes specified in
this paragraph must be included in the mesh size declaration;
(e) The lime score; and
(f) The maximum moisture
content if the moisture content is more than two percent, expressed in whole
numbers as follows, “Moisture content does not exceed ______ percent.”
SECTION 6.
In addition to the labeling requirements
under section 4 of this 2001 Act, the label for an agricultural amendment must
include the following:
(1) A guaranteed
analysis that contains the name and percentage of each substance intended to be
used as a source of plant food, to induce crop yields or plant growth or to
produce any physical or chemical change in the soil, listed consecutively,
followed by the percentage of other substances intended to be inert
ingredients.
(2) The purpose of the
product.
(3) Directions for
application.
SECTION 7.
In addition to the labeling requirements
under section 4 of this 2001 Act, the label for an agricultural mineral must
include the following:
(1) The percentage of
sulfur contained in the product if the principal ingredient of the agricultural
mineral is sulfur.
(2) The percentage of
calcium sulfate, if the product is gypsum, landplaster or plaster or is an
agricultural mineral in which calcium sulfate (CaSO4•2H2O)
is the principal ingredient.
(3) The percentage of
all ingredients contained in the product, in terms prescribed by the State
Department of Agriculture, for all other agricultural minerals or mixtures of
agricultural minerals with a principal ingredient other than sulfur or calcium sulfate.
SECTION 8.
In addition to the guarantees of plant
nutrients required by section 4 of this 2001 Act, label guarantees of other
plant nutrients may be made from a list approved by the State Department of
Agriculture.
SECTION 9.
A person may not sell or offer for sale
for agronomic purposes any leather, hair, wool waste, hoof, horn,
urea-formaldehyde condensation products or similar materials, either singly or
in combination, unless the products or materials have been processed in such
manner as to make the plant food content available in conformity with the
standards established by the State Department of Agriculture, taking into
consideration the standards of activity recommended by recognized experts in
the field.
SECTION 10.
(1) Each separately identifiable
fertilizer, agricultural amendment, agricultural mineral or lime product,
whether in package or in bulk, shall be registered with the State Department of
Agriculture. A person may not sell, offer for sale or distribute a fertilizer,
agricultural amendment, agricultural mineral or lime product in this state
until the fertilizer, agricultural amendment, agricultural mineral or lime
product is registered with the department.
(2) The application for
registration shall be made on a form or forms provided by the department. The
application for registration shall include the following information:
(a) Product name and
grade;
(b) Product label;
(c) Name and physical
address of the registrant;
(d) Mailing address of
the registrant;
(e) Product laboratory
analysis;
(f) Supplier or
suppliers of ingredients;
(g) Identification of
the industry, industry process or industry processes and location of the
facility that generated any waste-derived ingredient or ingredients; and
(h) Other information
required by the department by rule.
(3) The application for
registration shall be accompanied by a nonrefundable registration fee
established by department rule, not to exceed $25 annually for each fertilizer,
agricultural amendment, agricultural mineral or lime product. For a
waste-derived product, the department shall also charge an annual product
evaluation fee. For a fertilizer, agricultural mineral or agricultural
amendment product, the department may charge a product evaluation fee if
supplementary research and evaluation by the department is required in order to
determine product compliance with sections 2 to 23 of this 2001 Act. The
department shall establish product evaluation fees by rule, not to exceed $50.
The department shall review the registration application form and product label
for compliance with sections 2 to 23 of this 2001 Act. If the department finds
that the application information and product label comply with sections 2 to 23
of this 2001 Act, the department shall issue a certificate of registration to
the registrant.
(4) Certificates of
registration shall expire on December 31 of each year, except that the
department may grant a certificate of registration for two years. Certificates
of registration for two years shall expire on December 31 of the last year in
the two-year period.
(5) The department may
assess a $25 late registration fee for a product if the registrant has not paid
the registration fee prior to the 30th day following the expiration of the
certificate of registration. A late registration fee assessed by the department
under this subsection shall be added to the registration fee required under
subsection (3) of this section and must be paid by the registrant before the
department may issue a certificate of registration.
(6) The department may
require proof of label or labeling statements or claims of the efficacy and
usefulness of an ingredient prior to issuing a certificate of registration or
at any time deemed necessary by the department. As proof, the department may
request data from the registrant to support the label or labeling claims. The
department may also rely on other experimental data, data from agricultural
experiment stations, product review evaluations and advice from other
authoritative sources. The data must be from recognized, statistically designed
and analyzed trials conducted by recognized experts in the field. All
supporting data shall be representative of the soil, crops and climatic
conditions found in the northwestern United States.
(7) In evaluating a
label or labeling statement, claim or guarantee, the department may require the
submission of a written statement describing the methodology of the laboratory
analysis used, the source of the ingredient material and any reference material
relied on to support the label or labeling statement, claim or guarantee.
Laboratory analyses submitted in support of an application for registration
must comply with laboratory methods of analysis approved by the department.
(8) Each registrant
shall notify the department of any change that results in a laboratory analysis
that differs from the laboratory analysis submitted in support of the related
application for registration or any change in sources of product ingredients
declared on the application form. The registrant must notify the department
within 30 days following the change.
(9) The registrant shall
identify as “waste-derived” in the application for registration any fertilizer,
agricultural amendment, agricultural mineral or lime product that is
waste-derived and distributed as a single ingredient product or blended with
other fertilizer, agricultural amendment, agricultural mineral or lime
products. The application for registration must identify the industry, the
industry process or processes and the location of the facility that generated
the waste and all ingredients of concern as identified and adopted by rule.
(10) The initial
application for registration of a fertilizer, agricultural amendment,
agricultural mineral or lime product must include a statement of the levels of
metals in the product, including but not limited to arsenic (As), cadmium (Cd),
mercury (Hg), lead (Pb), nickel (Ni) or other metals or substances identified
by the department by rule. The registrant must provide a laboratory analysis
report, in accordance with acceptable methods required by the department, to
verify the levels of metals or other substances in the product. Subsequent to
initial product registration, such analysis shall be provided upon request by
the department.
(11) The department
shall establish by rule the level of metals or other substances permitted in
fertilizer, agricultural amendment, agricultural mineral and lime products
registered with the department, including but not limited to the permitted
levels of arsenic (As), cadmium (Cd), mercury (Hg), lead (Pb), nickel (Ni) or
other metals or substances identified by the department by rule for the purpose
of protecting humans, animals, water, aquatic life, soil or beneficial plant
life. The department shall review the permitted level of metals or other
substances in fertilizer, agricultural amendment, agricultural mineral and lime
products a minimum of every five years.
(12) Notwithstanding
subsection (1) of this section, a custom mix is not required to be registered
if all of the fertilizer, agricultural amendment, agricultural mineral or lime
products contained in the final product are registered in accordance with this
section.
(13) The department may
refuse to register any fertilizer, agricultural amendment, agricultural mineral
or lime product the sale, offering for sale or distribution of which would
violate any of the provisions of sections 2 to 23 of this 2001 Act. The registration
of each product is a distinct and separate registration, and the refusal to
register or reregister any product does not affect the registration of any
other product by the same person.
SECTION 11.
The State Department of Agriculture
shall deposit revenues received under sections 2 to 23 of this 2001 Act in the
Department of Agriculture Service Fund. The revenues shall be continuously
appropriated to the department for the purpose of administering and enforcing
sections 2 to 23 of this 2001 Act.
SECTION 12.
(1) A report of official sample, signed
and acknowledged by a chemist employed by the State Department of Agriculture,
other state agency or laboratory facility designated by the department,
relating to the analysis of any fertilizer, agricultural amendment,
agricultural mineral or lime product is prima facie evidence that the sample identified
in the report of official sample was properly analyzed and that the substance
analyzed contained the constituent parts stated in the report of official
sample.
(2) A report of official
sample, signed and acknowledged by the department, relating to the sampling of
any product is prima facie evidence that the sample identified was taken from
parcels, containers or lots identified in the official request for analysis.
SECTION 13.
(1) The State Department of Agriculture
shall have access at reasonable times to records, premises, materials or
conveyances as necessary for the purpose of implementing sections 2 to 23 of
this 2001 Act.
(2) The department may
take samples of any fertilizer, agricultural amendment, agricultural mineral or
lime product or other substance sold, offered for sale or distributed into or
within this state at times the department deems necessary for the purpose of
determining compliance with sections 2 to 23 of this 2001 Act.
(3) All sampling and
analyses of fertilizer, agricultural amendment, agricultural mineral and lime
products shall be made according to methods approved by the department.
SECTION 14.
(1) When the State Department of
Agriculture has reasonable cause to believe any quantity or lot of fertilizer,
agricultural amendment, agricultural mineral or lime product is sold, offered
for sale, stored, used or distributed in violation of sections 2 to 23 of this
2001 Act or rules adopted thereunder, the department may, in accordance with
ORS 561.605 to 561.620, issue and enforce a stop sale, use or removal order
prohibiting the disposal, distribution, use or removal of the quantity or lot
of product in any manner. The department may enforce the order until all
actions against the order, including any contested case, are resolved or until
the department gives written permission releasing the product for disposal,
distribution, use or removal. The department shall given written permission
releasing the product when sections 2 to 23 of this 2001 Act are complied with.
(2) In accordance with
ORS 561.605 to 561.620, the department may seize any quantity or lot of product
that the department determines does not comply with sections 2 to 23 of this
2001 Act.
SECTION 15.
In accordance with the applicable
provisions of ORS 183.310 to 183.550, the State Department of Agriculture may
adopt rules necessary to implement, administer and enforce sections 2 to 23 of
this 2001 Act, including but not limited to rules for:
(1) Fertilizer,
agricultural amendment, agricultural mineral and lime product:
(a) Handling;
(b) Sampling;
(c) Storage;
(d) Labeling;
(e) Distribution;
(f) Definitions;
(g) Analysis;
(h) Records;
(i) Use;
(j) Minimum percentages;
(k) Investigational
allowances; and
(L) Ingredients.
(2) Public access to
product information of any fertilizer, agricultural amendment, agricultural
mineral or lime product.
SECTION 16.
(1) A person may not:
(a) Sell, offer for sale
or distribute mislabeled products;
(b) Register or attempt
to register any product using fraudulent or deceptive practices to evade or
attempt to evade the requirements of sections 2 to 23 of this 2001 Act or rules
adopted thereunder;
(c) Sell, offer for sale
or distribute adulterated products;
(d) Fail, refuse or
neglect to deliver to a purchaser of a bulk fertilizer, agricultural amendment,
agricultural mineral or lime product a printed label that complies with
sections 4 to 7 of this 2001 Act;
(e) Sell, offer for sale
or distribute a fertilizer, agricultural amendment, agricultural mineral or
lime product that is not registered with the State Department of Agriculture
under section 10 of this 2001 Act;
(f) Fail, refuse or
neglect to keep or maintain records as required under sections 18, 20 and 21 of
this 2001 Act or refuse to make available such records pursuant to section 13
of this 2001 Act upon request by the department;
(g) Make false or
fraudulent applications, records, invoices or reports;
(h) Fail, refuse or
neglect to provide notification to the department as required by section 10 (8)
or 22 (5) of this 2001 Act;
(i) Fail, refuse or
neglect to obtain a manufacturer-bulk distributor license required under
section 22 of this 2001 Act;
(j) Sell, use or remove
any product subjected to a stop sale, use or removal order until the product
has been released in accordance with section 14 of this 2001 Act;
(k) Impede, obstruct,
hinder or otherwise prevent or attempt to prevent the department from the
performance of department duties under sections 2 to 23 of this 2001 Act;
(L) Knowingly or
intentionally make any false or misleading representations in connection with
the sale, offer for sale or distribution of fertilizer, agricultural amendment,
agricultural mineral or lime products;
(m) Fail, refuse or
neglect to file a semiannual statement with the department as required under
section 18 or 20 of this 2001 Act; or
(n) Fail, refuse or
neglect to pay inspection fees required under section 18 of this 2001 Act.
(2) A fertilizer,
agricultural amendment, agricultural mineral or lime product may be considered
mislabeled if the label or labeling:
(a) Is false, misleading
or deceptive;
(b) Does not accurately
reflect the composition of the product;
(c) Requires warning
statements or directions for use that may be necessary to protect humans,
animals, water, aquatic life, soil or beneficial plant life and such warning
statements or directions are not adequately stated on the label; or
(d) Does not comply with
the requirements of sections 4 to 7 of this 2001 Act.
(3) A fertilizer,
agricultural amendment, agricultural mineral or lime product may be considered
adulterated if the product:
(a) Contains any
deleterious or harmful ingredient in an amount that is injurious to humans,
animals, water, aquatic life, soil or beneficial plant life when used in accordance
with instructions for product use on the label;
(b) Differs in
composition from that which is claimed on the label;
(c) Differs in
composition from that which is claimed in the information provided in
accordance with section 10 of this 2001 Act; or
(d) Contains unwanted
crop seed or weed seed.
SECTION 17.
(1) In addition to any other liability
or penalty provided by law, a person that violates a provision of sections 2 to
23 of this 2001 Act or rules adopted thereunder may be subject to a civil penalty
of not more than:
(a) $500 for the first
violation within a three-year period;
(b) $1,500 for the
second violation within a three-year period; and
(c) $10,000 for each
subsequent violation within a three-year period.
(2) Enforcement guidance
for civil penalty implementation consistency will be determined by rule.
(3) Notwithstanding
subsection (1) of this section, any violation that arises from gross negligence
or willful misconduct and results in substantial harm to human health or the
environment may be subject to a civil penalty of not more than $10,000 for the
initial violation or any subsequent violation.
(4) Each violation of a
provision of sections 2 to 23 of this 2001 Act that results from an action is a
separate and distinct violation. A continuing violation may be deemed a
separate and distinct violation for each day's continued violation.
(5) A civil penalty
imposed under sections 2 to 23 of this 2001 Act may be remitted or reduced upon
such terms and conditions as the Director of Agriculture considers proper and
consistent with the public health and safety.
SECTION 18.
(1) An inspection fee in the amount set
forth under subsection (2) of this section shall be paid to the State
Department of Agriculture by any person who:
(a) Sells or distributes
into this state, from foreign or domestic sources, a fertilizer, agricultural
mineral or agricultural amendment product used as an ingredient in the in-state
manufacture of a fertilizer, agricultural mineral or agricultural amendment
product;
(b) Sells or distributes
into this state, from foreign or domestic sources, an end-use fertilizer,
agricultural mineral or agricultural amendment product for use within this
state; or
(c) Sells or distributes
into this state a fertilizer, agricultural mineral or agricultural amendment
product to the extent the product is composed of ingredients for which an
inspection fee was not charged under paragraph (a) or (b) of this subsection.
(2) A person described
in subsection (1) of this section shall pay the department an inspection fee in
an amount established by rule:
(a) Not to exceed $0.45
for each ton of fertilizer, agricultural mineral or agricultural amendment
products sold or distributed, of which an amount not to exceed $0.25 must be
continuously appropriated to the department for the sole purpose of funding grants
for research and development related to the interaction of fertilizer,
agricultural mineral or agricultural amendment products and ground water or
surface water as described in section 19 (1) of this 2001 Act.
(b) Not to exceed $0.05
for each ton of gypsum, land plaster and each agricultural mineral with a
principal ingredient of calcium sulfate (CaSO4•2H2O) sold
or distributed.
(3) Each person
responsible for paying an inspection fee shall file a semiannual statement with
the department, on forms provided by the department, setting forth the total
tonnage of each product distributed into or within the state during each
reporting period. There will be two six-month reporting periods, January 1
through June 30 and July 1 through December 31 of each year. Semiannual
statements and inspection fees are due within 30 days after the end of each
reporting period.
(4) Notwithstanding
section 10 of this 2001 Act, the department may suspend or deny registration of
a product until the statement is filed and the inspection fee is paid as
required under this section.
(5) If a person required
to file a semiannual statement under subsection (3) of this section does not
sell or distribute any fertilizer, agricultural amendment or agricultural
mineral product during a reporting period, the person shall file a statement
declaring that no sales or distribution occurred.
(6) If a person required
to file a semiannual statement or pay an inspection fee does not file the
statement or pay the fee within 30 days of the due date established by the
department, the department may assess a collection fee of 10 percent of the
amount due or $25, whichever is greater, and the department may withhold
registration of the product until the report is filed and the fee is paid.
(7) A person required to
file a semiannual statement under subsection (3) of this section shall maintain
records and a bookkeeping system that accurately indicate the tonnage of
fertilizer, agricultural mineral or agricultural amendment product that is subject
to annual inspection fees. Such records shall be maintained for a period of
three years. The department may examine such records to verify the reported
annual inspection fees related to the amounts of product sold or distributed in
this state.
(8) Inspection fees may
not be assessed on any fertilizer, agricultural mineral or agricultural
amendment product in commercial transit that is not intended for use or final
distribution in this state.
(9) The provisions of
ORS 561.450 apply to a person who refuses to pay inspection fees due to the
department under this section.
(10) In the case of
duplicate inspection fee payments, an application for refund must be made on
forms provided by the department and submitted to the department within 180
days of the alleged overpayment.
SECTION 19.
(1) There is created the Fertilizer
Research Committee to advise the Director of Agriculture on the funding of
grants for research and development related to the interaction of fertilizer,
agricultural mineral and agricultural amendment products and ground water or
surface water. The committee shall consist of seven members appointed by the
director as follows:
(a) The Director of
Agriculture or the director's designee;
(b) Two members of the
public who have no involvement in the manufacture, distribution or sale of
fertilizer, agricultural mineral or agricultural amendment products;
(c) Three members
representing the fertilizer, agricultural mineral or agricultural amendment
industry; and
(d) One member
representing Oregon State University.
(2) The term of each
member is two years, but a member serves at the pleasure of the director.
Before the expiration of the term of a member, the director shall appoint a
successor whose term begins on January 1 next following. A member is eligible
for reappointment. If there is a vacancy for any cause, the director shall make
an appointment to become immediately effective for the unexpired term.
(3) The committee shall
select one of its members as chairperson and another as vice chairperson, for
such terms and with duties and powers necessary for the performance of the
functions of such offices as the committee determines.
(4) A majority of the
members of the committee constitutes a quorum for the transaction of business.
(5) The committee shall
meet at times and places specified by the call of the chairperson or of a
majority of the members of the committee.
(6) The director may
appoint an alternate committee member for each member of the committee.
SECTION 20.
(1) A semiannual statement shall be
filed with the State Department of Agriculture by any person who:
(a) Sells or distributes
into this state, from foreign or domestic sources, lime products used as an
ingredient in the in-state manufacture of a fertilizer, agricultural amendment,
agricultural mineral or lime product;
(b) Sells or distributes
into this state, from foreign or domestic sources, end-use lime products for
use within this state; or
(c) Sells or distributes
into this state a lime product composed of ingredients not described under
paragraph (a) or (b) of this subsection.
(2) Each person required
to file a statement under this section shall file a semiannual statement with
the department. The statement shall set forth the total tonnage of lime product
sold or distributed into this state during the filing period. There will be two
six-month reporting periods, January 1 through June 30 and July 1 through
December 31 of each year. Semiannual statements are due within 30 days after
the end of each reporting period.
(3) If a person required
to file a semiannual statement under subsection (1) of this section does not
sell or distribute lime products during a reporting period, the person shall
file a statement declaring that no sales or distribution occurred.
(4) If a person does not
file a semiannual report required under this section, the department may assess
a collection fee of $25.
(5) A person required to
file a semiannual statement under this section shall maintain records and a
bookkeeping system that accurately indicate the tonnage of lime product sold or
distributed into this state. Such records shall be maintained for a period of
three years.
SECTION 21.
(1) A person mixing or selling a custom
mix of fertilizer, agricultural amendment, agricultural mineral or lime
products shall keep for a period of at least three years after mixing a record
showing:
(a) The name and address
of the purchaser;
(b) The date of mixing;
(c) A unique identifier
for each mixture;
(d) The guarantees and
information required under sections 4 to 7 of this 2001 Act or a list of the
registered ingredients showing the number of pounds and the grade of each
ingredient in the mixture or batch; and
(e) Any other
information required by the State Department of Agriculture.
(2) Undelivered parts of
a custom mixture or batch shall at all times be identified with the purchaser's
name and unique identifier.
(3) The records required
by this section shall be available for inspection during normal business hours
by either the purchaser or the department.
SECTION 22.
(1) A manufacturer-bulk distributor
license issued by the State Department of Agriculture is required for
manufacturers or bulk distributors of registered or custom mixed fertilizer,
agricultural amendment, agricultural mineral or lime products. A license is
required for any business entity described by either or both of the following
conditions:
(a) Each out-of-state or
in-state business entity that distributes fertilizer, agricultural amendment,
agricultural mineral or lime in bulk.
(b) Each in-state
business entity that manufactures any fertilizer, agricultural amendment,
agricultural mineral or lime product in this state.
(2) An application for a
manufacturer-bulk distributor license must be filed on forms provided by the
department and must be accompanied by a nonrefundable license fee to be
determined by rule, not to exceed $50 for each business entity per year.
(3) An application for a
license must include but not be limited to:
(a) The name, physical
address and mailing address of the business entity main office and primary
contact;
(b) A list of locations
that are in operation for more than 90 days during a license period; and
(c) Other information as
required by the department to clarify the manufacturer's or bulk distributor's
activities or location.
(4) A manufacturer-bulk
distributor license will expire on December 31 of each year. A late fee of $25
may be assessed by the department on or after the 30th day following the
expiration of a license if the license fee has not been paid by the applicant.
The late fee shall be added to the required license fee and must be paid by the
applicant before the department may issue a license to the applicant.
(5) Within 30 days, each
license holder shall report any change to the department that results in the
addition, removal or change of a location.
SECTION 23.
(1) Information required under section
10 (2)(f) and (g) and (6) of this 2001 Act is exempt from disclosure under ORS
192.410 to 192.505. The State Department of Agriculture may not divulge any
information provided to the department in accordance with section 10 (2)(f) and
(g) and (6) of this 2001 Act.
(2) Notwithstanding
subsection (1) of this section, the information required under sections 2 to 23
of this 2001 Act may be used by the department for any administrative or
enforcement action the department deems necessary. In addition, the department
may:
(a) Accumulate and
publish statistics from statements required by sections 18 and 20 of this 2001
Act in a manner that does not divulge the business operations of the person
submitting a report;
(b) Consult with the
Department of Environmental Quality or other state or federal agencies in
regard to information provided under section 10 (2)(f) and (g) of this 2001 Act
to ensure compliance with applicable regulations; and
(c) Disclose data
required under section 10 (6) of this 2001 Act to experts for the purpose of
evaluating product data submitted in support of registration.
SECTION 24.
ORS 468B.150 is amended to read:
468B.150. As used in ORS 448.268, 448.271 and 468B.150 to
468B.190:
(1) “Area of ground water concern” means an area of the
state subject to a declaration by the Department of Environmental Quality under
ORS 468B.175 or the Health Division under ORS 448.268.
(2) “Contaminant” means any chemical, ion, radionuclide,
synthetic organic compound, microorganism, waste or other substance that does
not occur naturally in ground water or that occurs naturally but at a lower
concentration.
(3) “Ground water management area” means an area in which
contaminants in the ground water have exceeded the levels established under ORS
468B.165, and the affected area is subject to a declaration under ORS 468B.180.
(4) “Fertilizer” has the meaning given that term in [ORS 633.310] section 2 of this 2001 Act.
(5) “Pesticide” has the meaning given that term in ORS
634.006.
SECTION 25.
ORS 468B.165 is amended to read:
468B.165. (1) Within 90 days after receiving the
recommendations of the technical advisory committee under ORS 468B.166, the
Environmental Quality Commission shall begin rulemaking to first adopt final
rules establishing maximum measurable levels for contaminants in ground water.
The commission shall adopt the final rules not later than 180 days after the
commission provides notice under ORS 183.335.
(2) The adoption or failure to adopt a rule establishing a
maximum measurable level for a contaminant under subsection (1) of this section
shall not alone be construed to require the imposition of restrictions on the
use of fertilizers under [ORS 633.310 to
633.495] sections 2 to 23 of this
2001 Act or the use of pesticides under ORS chapter 634.
SECTION 26.
ORS 480.200 is amended to read:
480.200. As used in ORS 480.200 to 480.290 unless the
context requires otherwise:
(1) “Certificate of possession” means a certificate issued
under ORS 480.235 by the State Fire Marshal to applicants who have met the
requirements of ORS 480.200 to 480.290.
(2) “Certificate of registration” means a certificate of
registration issued under ORS 480.244 by the State Fire Marshal for an
explosives magazine.
(3) “Explosive” means a chemical compound, mixture or
device, the primary or common purpose of which is to function by explosion. The
term includes, but is not limited to, dynamite, pellet powder, initiating
explosives, detonators, safety fuses, squibs, detonating cord, igniter cord and
igniters, but excludes fireworks, as defined in ORS 480.110 (1), black powder,
smokeless powder, small arms ammunition, small arms ammunition primers and
fertilizer, as defined in [ORS 633.310]
section 2 of this 2001 Act.
(4) “Issuing authority” means the State Fire Marshal or an
assistant appointed by the State Fire Marshal under ORS 480.280 (2).
(5) “Magazine” means an approved facility for the storage
of explosives.
(6) “Small arms ammunition” means a shotgun, rifle, pistol
or revolver cartridge.
(7) “Small arms ammunition primers” means small
percussion-sensitive explosive charges encased in a cup and used to ignite
propellant powder.
SECTION 27.
ORS 561.144 is amended to read:
561.144. (1) The State Treasurer shall establish a
Department of Agriculture Service Fund which shall be a trust fund separate
from the General Fund and included under ORS 293.115 (6), and which shall not
be subject to ORS 293.105 and 293.110. The State Department of Agriculture
shall deposit all license and service fees paid to it under the provisions of
the statutes identified in subsection (3) of this section in the Department of
Agriculture Service Fund. The State Treasurer is the custodian of this trust
fund which shall be deposited by the treasurer in such depositories as are
authorized to receive deposits of the General Fund, and which may be invested
by the treasurer in the same manner as authorized by ORS 293.701 to 293.820.
(2) Notwithstanding ORS 293.140, interest received on
deposits credited to the Department of Agriculture Service Fund shall accrue to
and become a part of the Department of Agriculture Service Fund.
(3) The license and service fees subject to this section
are those described in ORS 561.400, 570.710, 571.057, 571.063, 571.145,
583.004, 583.046, 583.445, 583.510, 583.610, 585.050, 586.270, 586.580,
586.650, 596.030, 596.311, 599.235, 599.269, 599.406, 599.610, 600.030,
601.040, 602.090, 603.025, 603.075, 616.706, 618.115, 618.136, 619.031,
621.072, 621.166, 621.266, 621.297, 621.335, 621.730, 622.080, 625.180,
628.240, 632.211, 632.425, 632.600, 632.720, 632.730, 632.741, 632.940, 632.945,
633.015, 633.029, [633.361, 633.460,]
633.680, 633.700, 633.720, 634.016, 634.116, 634.122, 634.126, 634.132,
634.136, 634.212 and 635.030 and
sections 10, 18, 20 and 22 of this 2001 Act.
SECTION 28.
Notwithstanding the term of office
specified by section 19 of this 2001 Act, of the members first appointed to the
Fertilizer Research Committee:
(1) Two shall serve for
terms ending January 1, 2004.
(2) Two shall serve for
terms ending January 1, 2005.
(3) Three shall serve
for terms ending January 1, 2006.
SECTION 29.
Sections 4 (1)(i) and 10 (11) of this
2001 Act become operative January 1, 2003.
SECTION 30.
ORS 633.310, 633.320, 633.330, 633.335,
633.340, 633.343, 633.345, 633.350, 633.361, 633.370, 633.380, 633.390,
633.420, 633.430, 633.440, 633.450, 633.460, 633.470, 633.475, 633.485, 633.495
and 633.500 are repealed.
SECTION 31.
Notwithstanding any other law, the
amount of $394,057 is established for the biennium beginning July 1, 2001, as
the maximum limit for payment of expenses from fees, moneys or other revenues,
including Miscellaneous Receipts, but excluding lottery funds and federal
funds, collected or received by the State Department of Agriculture for
purposes of carrying out sections 2 to 23 of this 2001 Act.
Approved by the Governor
August 3, 2001
Filed in the office of
Secretary of State August 6, 2001
Effective date January 1,
2002
__________