BILL NUMBER: AB 856 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 15, 2009
INTRODUCED BY Assembly Member Caballero
FEBRUARY 26, 2009
An act to amend Section 14655 of the Food and
Agricultural Code, relating to fertilizer. An act to
amend Sections 14501, 14528, 14532, 14533, 14557, 14558, 14591,
14601, 14623, 14641, 14642, 14651, 14652, and 14655 of, and to add
Sections 14550.5, 14651.5, and 14661 to, the Food and Agricultural
Code, relating to fertilizer, and making an appropriation
therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 856, as amended, Caballero. Fertilizer.
Fertilizing material: organic input material.
Existing law generally regulates fertilizing materials, as
defined, and provides for the licensure of individuals who
manufacture or distribute fertilizing materials.
This bill would include organic input material, as defined, within
the definition of fertilizing material.
Existing law requires every person who manufactures or distributes
fertilizing materials, before engaging in that activity, to obtain a
license from the Secretary of Food and Agriculture for each plant
and business location that he or she operates.
This bill would require the secretary, prior to issuing a license,
to require verification that the applicant is a manufacturer or
distributor of fertilizing material.
Existing law requires the registration of each differing label,
other than weight or package size, for specialty fertilizer and
certain other substances. Existing law requires the registration fee
not to exceed $200 per product.
This bill would also require registration of each differing label
for organic input material and would require the registration fee for
organic input material not to exceed $500 per product. The bill
would provide that registrations may not be issued without a current
license.
Because a violation of provisions relating to fertilizing
materials is a misdemeanor, by changing the definition of a crime
this bill would impose a state-mandated local program.
Existing law requires a tonnage report to be submitted to the
secretary semiannually, as provided, and requires the secretary to
impose a penalty of $200 on any person who fails to submit a report
on or before the due dates.
This bill would provide that any tonnage report that is more than
90 days past due is a cause for revocation of the license.
Existing law provides that the secretary shall have free access at
reasonable times to records, premises, or conveyances used in the
manufacture, transportation, importation, distribution, storage, or
application of any fertilizing material.
This bill would also provide that the secretary has access to
production processes used for those purposes.
Existing law provides that the secretary shall, at the times and
to the extent necessary for the enforcement of these provisions
relating to fertilizing material, to, among other things, take
samples of, or make analyses or examinations of, any substance.
This bill would also permit the secretary to monitor the
manufacture of fertilizing material and take samples at different
stages of the manufacturing process.
Existing law makes a violation of provisions relating to
fertilizing materials a misdemeanor punishable by a fine of not more
than $500 for the first violation and not less than $500 for each
subsequent violation.
This bill would increase those fine amounts to not more than
$1,000 for the first violation and not less than $1,000 for each
subsequent violation.
This bill would authorize the Department of Food and Agriculture
to levy a civil penalty against any person who violates the
provisions relating to fertilizing materials, as provided.
This bill would provide that the department shall be entitled to
receive reimbursement for any reasonable attorney's fees and other
related costs in enforcement of these provisions relating to
fertilizing materials.
By authorizing a new source of revenue to be deposited into a
continuously appropriated fund, the Department of Food and
Agriculture Fund, this bill would make an appropriation.
Existing law provides that it is unlawful for any person to
manufacture or distribute in this state any fertilizing material
without complying with the provisions relating to fertilizing
materials or its regulations.
This bill would provide that it is unlawful for any person to
adulterate any solution or to alter any organic input material that
is prohibited for organic production, and would make the violation of
this provision a misdemeanor punishable by specified fines. By
creating a new crime, this bill would impose a state-mandated local
program.
Existing law provides that the movement, distribution, or sale of
all or part of any product that has been quarantined by the
secretary, unless the movement, distribution, or sale has the prior
approval of the secretary, is a misdemeanor punishable by a fine of
not more than $500 and a fine of not less than $1,000 for a 2nd or
subsequent violation.
This bill would also make a violation of that provision subject to
a civil penalty and would increase those misdemeanor fine amounts to
not more than $5,000 for the first violation and not less than
$10,000 for a 2nd or subsequent violation.
This bill would also make conforming and technical changes.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Existing law generally regulates fertilizer materials and provides
for the licensure of individuals who manufacture or distribute
fertilizing materials.
This bill would make nonsubstantive changes to those provisions.
Vote: majority 2/3 . Appropriation:
no yes . Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 14501 of the Food
and Agricultural Code is amended to read:
14501. The Legislature finds and declares that it is the intent
of this chapter to do all of the following:
(a) To promote the distribution of effective and safe fertilizing
materials essential for the production of food and fiber.
(b) To provide assurance to the consumer of commercial
fertilizers, agricultural minerals, packaged soil amendments,
organic input material, and auxiliary soil and plant substances
that the product purchased is properly identified, and to provide
assurance of the validity of the quality and quantity represented by
the manufacturer of these products.
(c) To provide funds for the administration and enforcement of
this chapter.
SEC. 2. Section 14528 of the Food and
Agricultural Code is amended to read:
14528. "Discontinued manufacturing" means an auxiliary soil and
plant substance, packaged agricultural mineral, packaged soil
amendment, organic input material, and specialty
fertilizer that is no longer manufactured, but is still offered for
sale.
SEC. 3. Section 14532 of the Food and
Agricultural Code is amended to read:
14532. "Farm use" means that the fertilizing material
is used primarily for application to crops produced for commercial
value.
SEC. 4. Section 14533 of the Food and
Agricultural Code is amended to read:
14533. "Fertilizing material" means any commercial fertilizer,
agricultural mineral, auxiliary soil and plant substance,
organic input material, or packaged soil amendment.
SEC. 5. Section 14550.5 is added to the
Food and Agricultural Code , to read:
14550.5. "Organic input material" means any bulk or packaged
commercial fertilizer, agricultural mineral, auxiliary soil and plant
substance, specialty fertilizer, or soil amendment to be used in
organic crop and food production and complies with the requirements
of the National Organic Program standards, as specified in Part 205
(commencing with Section 205.1) of Subchapter M of Chapter I of
Subtitle B of Title 7 of the Code of Federal Regulations.
SEC. 6. Section 14557 of the Food and
Agricultural Code is amended to read:
14557. "Provisional registration" means that under certain
circumstances, a label for renewal on an auxiliary soil and plant
substance, packaged agricultural mineral, packaged soil amendment,
organic input material, or specialty fertilizer, alone or
in any combination, may be registered for a limited period of time
while labels are being corrected and reprinted.
SEC. 7. Section 14558 of the Food and
Agricultural Code is amended to read:
14558. "Registrant" means any person who has registered a
packaged agricultural mineral, auxiliary soil and plant substance,
packaged soil amendment, organic input material, or
specialty fertilizer.
SEC. 8. Section 14591 of the Food and
Agricultural Code is amended to read:
14591. (a) Every person who manufactures or distributes
fertilizing materials shall, before he or she engages in the
activity, obtain a license from the secretary for each plant and
business location which that he or she
operates. Prior to issuing a license, the secretary shall
require verification that the applicant is a manufacturer or
distributor of fertilizing material compliant with this chapter.
All licenses shall be renewed in January of each odd-numbered
year, and shall be valid until December 31 of the following
even-numbered year, if issued in January of that same year. However,
a person who only distributes or who makes retail sales of packaged
agricultural minerals, packaged commercial fertilizers, packaged soil
amendments, organic input material, or packaged auxiliary
soil and plant substances, alone or in any combination, which bear
the registered label of another licensed person, is not required to
obtain the license.
(b) Every person who manufactures or distributes, or intends to
manufacture or distribute, ammonium nitrate as defined in Section
14512.5, in this state, shall inform the secretary of that activity
or intent when applying for a license. The license obtained by that
person shall identify him or her as a manufacturer or distributor of
ammonium nitrate.
(c) The license fee shall not exceed two hundred dollars ($200).
The secretary may, based on the findings and recommendations of the
board, reduce the license fee to a lower rate that provides
sufficient revenue to carry out this chapter.
SEC. 9. Section 14601 of the Food and
Agricultural Code is amended to read:
14601. Each differing label, other than weight or package size,
such as changes in the guaranteed analysis, derivation statement, or
anything that implies a different product, for specialty fertilizer,
packaged agricultural mineral, auxiliary soil and plant substance,
organic input material, and packaged soil amendment shall
be registered. All registrations shall be renewed in January of an
even-numbered year, and shall be valid until December 31 of the
following odd-numbered year, if issued in January of that same year.
The registration fee shall not exceed two hundred dollars ($200) per
product , except for organic input material. The registration
fee for organic input material shall not exceed five
hundred dollars ($500) per product. Registrations may not be issued
without a current license . The secretary may, based on the
findings and recommendations of the board, reduce the registration
fee to a lower rate that provides sufficient revenue to carry out
this chapter. The secretary may require proof of labeling statements
and other claims made for any specialty fertilizer, agricultural
mineral, packaged soil amendment, organic input material,
or auxiliary soil and plant substance, before the secretary registers
any such product. As evidence of proof, the secretary may rely on
experimental data, evaluations, or advice furnished by scientists,
including scientists affiliated with the University of California,
and may accept or reject additional sources of proof in the
evaluation of any fertilizing material. In all cases, experimental
proof shall relate to conditions in California under which the
product is intended for use.
The secretary, after hearing, may cancel the registration of, or
refuse to register, any specialty fertilizer, packaged agricultural
mineral, packaged soil amendment, organic input material,
or auxiliary soil and plant substance, which the secretary determines
is detrimental or injurious to plants, animals, public safety, or
the environment when it is applied as directed, which is known to be
of little or no value for the purpose for which it is intended, or
for which any false or misleading claim is made or implied. The
secretary may cancel the registration of any product of any person
who violates this chapter.
The proceedings to determine whether to cancel or refuse
registration of any of those products shall be conducted pursuant to
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code. The director
secretary shall have all the powers that are granted pursuant
to Chapter 5.
SEC. 10. Section 14623 of the Food and
Agricultural Code is amended to read:
14623. The tonnage report shall be submitted to the secretary
semiannually not later than January 31 and July 31 of each year. The
secretary shall impose a penalty in the amount of two hundred dollars
($200) on any person who does not submit the report on or before
those dates. Any tonnage report that is more than 90 days past
due is a cause for revocation of the license.
SEC. 11. Section 14641 of the Food and
Agricultural Code is amended to read:
14641. The secretary shall have free access at reasonable times
to all records, premises, production processes, or
conveyances which that are used in the
manufacture, transportation, importation, distribution, storage, or
application of any fertilizing material.
SEC. 12. Section 14642 of the Food and
Agricultural Code is amended to read:
14642. The secretary shall, at the times and to the extent
necessary for the enforcement of this chapter, do all of the
following:
(a) Take samples of any substance.
(b) Make analyses or examinations of any substance.
(c) Conduct investigations concerning the use, sale, adulteration,
or misbranding of any substance.
(d) Monitor the manufacture of a fertilizing material and take
samples at different stages of the manufacturing process.
SEC. 13. Section 14651 of the Food and
Agricultural Code is amended to read:
14651. (a) Unless otherwise specified in this chapter, any
violation of this chapter, or the regulations adopted pursuant to
this chapter, is a misdemeanor, punishable by a fine of not more than
five hundred dollars ($500) one thousand
dollars ($1,000) for the first violation and not less than
five hundred dollars ($500) one thousand
dollars ($1,000) for each subsequent violation.
(b) The secretary may, after hearing, refuse to issue or renew, or
may suspend or revoke, a license or registration for any violation
of this chapter or any regulation that is adopted pursuant to this
chapter.
(c) Upon calling a hearing, the director
secretary shall hand deliver or mail a notice of the hearing to
the licensee or registrant specifying the time and place of the
hearing at least 10 days prior to the hearing. The hearing officer
may do any of the following:
(1) Administer oaths and take testimony.
(2) Issue subpoenas requiring the attendance of the licensee,
registrant, or witnesses, together with books, records, memorandums,
papers, and all other documents that may be pertinent to the case.
(3) Compel from the licensee or registrant and any witness the
disclosure of all facts known to him or her regarding the case. In no
instance shall any employee of Agricultural Commodities and
Regulatory Services Feed, Fertilizer, Livestock Drugs
and Egg Regulatory Services serve as the hearing officer in
any hearing conducted pursuant to this section.
(d) Any person who is denied a license, whose license is not
renewed, or whose license is suspended or revoked pursuant to this
section may appeal to the secretary.
SEC. 14. Section 14651.5 is added to the
Food and Agricultural Code , to read:
14651.5. (a) The department may levy a civil penalty against any
person who violates this chapter in an amount of not more than five
thousand dollars ($5,000) for each violation. The amount of the
penalty assessed for each violation shall be based upon the nature of
the violation, the seriousness of the effect of the violation upon
the effectuation of the purposes and provisions of this chapter, and
the impact of the penalty on the violator, including the deterrent
effect on future violations.
(b) For a first offense, and upon a finding that the violation is
minor and negligent or unintentional, in lieu of a civil penalty, the
secretary may issue a notice of warning.
(c) A person against whom a civil penalty is levied shall be
afforded an opportunity for a hearing before the secretary, upon a
request made within 30 days after the date of issuance of the notice
of penalty. At the hearing, the person shall be given the right to
present evidence on his or her own behalf. If no hearing is
requested, the civil penalty shall constitute a final and
nonreviewable order.
(d) If a hearing is held, review of the decision of the secretary
may be sought by the person against whom the civil penalty is levied
within 30 days of the date of the final order of the secretary
pursuant to Section 1094.5 of the Code of Civil Procedure.
(e) A civil penalty levied by the department pursuant to this
section may be recovered in a civil action brought in the name of the
state.
SEC. 15. Section 14652 of the Food and
Agricultural Code is amended to read:
14652. (a) It is unlawful for any person to
manufacture or distribute in this state any fertilizing material
without complying with this chapter or the regulations adopted
pursuant to this chapter.
(b) It is unlawful for any person to adulterate any solution or to
alter any organic input material that is prohibited for organic
production. Any violation of this subdivision is a misdemeanor
punishable by a fine of not more than fifteen thousand dollars
($15,000) for the first violation and not less than fifteen thousand
dollars ($15,000) for each subsequent violation.
SEC. 16. Section 14655 of the Food and
Agricultural Code is amended to read:
14655. (a) Any lot of fertilizing material for which a hold order
or notice is issued shall be held by the person having control of
the material and shall not be distributed or moved except under the
specific directions of the secretary, pending final disposition
pursuant to this chapter. This does not prevent the person who has
control of the material from inspecting any seized material or from
taking a reasonable sample for evidence while in the presence of a
person designated by the director secretary
.
(b) The movement, distribution, or sale of all or part of any
product that has been quarantined by the secretary, unless the
movement, distribution, or sale has the prior approval of the
secretary, is a violation subject to a civil penalty as
specified in Section 14651.5, or a misdemeanor punishable by a
fine of not more than five hundred dollars ($500)
thousand dollars ($5,000) . A second or subsequent
violation of this subdivision is a misdemeanor punishable by a fine
of not less than one thousand dollars ($1,000)
ten thousand dollars ($10,000) .
SEC. 17. Section 14661 is added to the
Food and Agricultural Code , to read:
14661. (a) The department shall be entitled to receive
reimbursement for any reasonable attorney's fees and other related
costs, including, but not limited to, investigative costs, involved
in enforcement of this chapter.
(b) The department shall use all funds received pursuant to this
chapter for the purposes of this chapter.
SEC. 18. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 14655 of the Food and
Agricultural Code is amended to read:
14655. (a) Any lot of fertilizing material for which a hold order
or notice is issued shall be held by the person having control of
the material and shall not be distributed or moved except under the
specific directions of the secretary, pending final disposition
pursuant to this chapter. This does not prevent the person who has
control of the material from inspecting any seized material or from
taking a reasonable sample for evidence while in the presence of a
person designated by the secretary.
(b) The movement, distribution, or sale of all or part of any
product that has been quarantined by the secretary, unless the
movement, distribution, or sale has the prior approval of the
secretary, is a misdemeanor punishable by a fine of not more than
five hundred dollars ($500). A second or subsequent violation of this
subdivision is a misdemeanor punishable by a fine of not less than
one thousand dollars ($1,000).