BILL NUMBER: AB 856 CHAPTERED
BILL TEXT
CHAPTER 257
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE SEPTEMBER 3, 2009
PASSED THE ASSEMBLY SEPTEMBER 11, 2009
AMENDED IN SENATE SEPTEMBER 1, 2009
AMENDED IN SENATE AUGUST 19, 2009
AMENDED IN SENATE JULY 1, 2009
AMENDED IN ASSEMBLY APRIL 27, 2009
AMENDED IN ASSEMBLY APRIL 15, 2009
INTRODUCED BY Assembly Member Caballero
(Coauthor: Assembly Member Tom Berryhill)
FEBRUARY 26, 2009
An act to amend Sections 14528, 14532, 14533, 14557, 14558, 14591,
14601, 14611, 14623, 14631, 14641, 14642, 14651, 14652, 14655,
14681, and 14682 of, to add Sections 14550.5, 14583.5, 14651.5, and
14661 to, and to repeal Section 14632 of, the Food and Agricultural
Code, relating to fertilizer, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 856, Caballero. 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 provides that there is in the Department of Food and
Agriculture a Fertilizer Inspection Advisory Board consisting of 9
persons appointed by the Secretary of Food and Agriculture and
composed as specified and with specified functions.
This bill would require the secretary, by January 1, 2012, and in
consultation with the board, to review certain issues relating to
organic input materials and to post the review in a report on the
department's Internet Web site.
Existing law requires every person who manufactures or distributes
fertilizing materials, before engaging in that activity, to obtain a
license from the secretary for each plant and business location that
he or she operates. Existing law requires a license fee not to
exceed $200, and authorizes the secretary to reduce the license fee,
as provided.
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. The bill would increase the
license fee to an amount not to exceed $300.
By increasing the amount of fee revenue to be deposited into a
continuously appropriated fund, the Department of Food and
Agriculture Fund, from certain license applicants, this bill would
make an appropriation.
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, would require the registration fee for
organic input material not to exceed $500 per product, and would
require the funds generated from the registration of organic input
materials to be deposited into the Organic Input Materials Account,
which the bill would create in the Department of Food and Agriculture
Fund, and be available only upon appropriation by the Legislature.
The bill would provide that registrations may not be issued without a
current license. The bill would require the inspection of organic
input material manufacturers at least once per year, as provided.
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 requires every lot, parcel, or package of fertilizing
material to have attached to it, or the shipment to be physically
accompanied by, a label as required by the secretary, and makes a
violation of these provisions an infraction or misdemeanor, as
provided. Existing law authorizes the secretary to require proof of
labeling statements and claims made for any fertilizing material and
to cancel the approval of, or refuse to approve, a fertilizing
material label if the secretary determines that adequate proof of
label claims does not exist.
This bill would delete the specific penalty for a violation of the
labeling provisions. The bill would instead require the secretary to
cancel the approval of, or refuse to approve, a fertilizing material
label if adequate proof of label claims does not exist. By changing
the penalty for a crime, this bill would impose a state-mandated
local program.
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, among other things, take samples
of, or make analyses or examinations of, any substance.
This bill would also permit the secretary to inspect the
fertilizing material manufacturing facilities and take samples at
various stages of production for specified purposes.
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 require 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 from any violator 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, misbrand, or alter any fertilizing material with the
result that the fertilizing material would be inconsistent with the
label claims, 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. The bill would
also authorize the secretary to prohibit a person who violates this
provision or a certain other provision relating to the distribution
of adulterated fertilizing material from obtaining a license to sell
organic input materials for 3 years.
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.
Existing law prohibits a person from distributing an adulterated
fertilizing material and provides specified conditions under which a
fertilizing material will be deemed to be adulterated.
This bill would include as another condition if an organic input
material contains ingredients that, in type or amount, do not comply
with certain federal standards requirements.
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.
This bill would also make conforming, clarifying, 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.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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. 2. 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. 3. 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. 4. 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, excluding
pesticides, that is to be used in organic crop and food production
and that 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. 5. 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. 6. 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. 7. Section 14583.5 is added to the Food and Agricultural
Code, to read:
14583.5. (a) The secretary, by January 1, 2012, and in
consultation with the board, shall review the definition of organic
input materials in Section 14550.5 and identify oversight and
implementation issues that may arise or have arisen on account of
that definition. The review shall also include an examination of
materials not currently regulated under this definition that may
warrant oversight by the department so as to protect the state's
agricultural industry, including the organic industry, and
recommendations for any necessary statutory changes.
(b) The secretary shall post the review required pursuant to
subdivision (a) in a report on the Internet Web site of the
department.
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 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 three hundred dollars ($300).
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. (a) 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.
(b) Notwithstanding subdivision (a), the registration fee for
organic input material shall not exceed five hundred dollars ($500)
per product, as the registration of organic input material labels
require additional departmental resources and review time to ensure
that nutrient guarantees and claims are scientifically feasible and
meet National Organic Program standards. Funds generated from the
registration of organic input material shall be deposited into the
Organic Input Materials Account in the Department of Food and
Agriculture Fund and, notwithstanding Section 221, shall be available
upon appropriation by the Legislature.
(c) The secretary may, based on the findings and recommendations
of the board, reduce the registration fees to a lower rate that
provides sufficient revenue to carry out this chapter.
(d) Registrations may not be issued without a current license.
(e) 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.
(f) Organic input material manufacturers shall be inspected at
least once per year. The secretary may perform site inspections of
organic input material manufacturing processes used to validate label
nutrient guarantees, claims, and compliance with National Organic
Program standards during the registration process. The secretary may
accept inspections performed by a third-party organization recognized
by the National Organic Program for out-of-state organic input
material manufacturers. All inspection records obtained by the
third-party organization shall be made available to the secretary
upon request. When a third-party organization is conducting a site
inspection, the organization shall notify the department of when the
inspection is going to take place no less than 72 hours in advance of
the inspection. Department representatives may be present at the
inspection.
(g) (1) 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.
(2) 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 secretary shall have all the
powers that are granted pursuant to Chapter 5.
SEC. 10. Section 14611 of the Food and Agricultural Code is
amended to read:
14611. (a) Any licensee whose name appears on the label who sells
or distributes bulk fertilizing materials, as defined in Sections
14517 and 14533, to unlicensed purchasers, shall pay to the secretary
an assessment not to exceed two mills ($0.002) per dollar of sales
for all fertilizing materials. Any licensee whose name appears on the
label of packaged fertilizing materials, as defined in Sections
14533 and 14551, shall pay to the secretary an assessment not to
exceed two mills ($0.002) per dollar of sales. The secretary may,
based on the findings and recommendations of the board, reduce the
assessment rate to a lower rate that provides sufficient revenue to
carry out this chapter.
(b) In addition to the assessment provided in subdivision (a), the
secretary may impose an assessment in an amount not to exceed one
mill ($0.001) per dollar of sales for all sales of fertilizing
materials, to provide funding for research and education regarding
the use and handling of fertilizing material, including, but not
limited to, any environmental effects.
SEC. 11. 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. 12. Section 14631 of the Food and Agricultural Code is
amended to read:
14631. Every lot, parcel, or package of fertilizing material
distributed into or within this state shall have attached to it, or
the shipment shall be physically accompanied by, a label as required
by the secretary, by regulation. The secretary may require proof of
labeling statements and claims made for any fertilizing material. 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. The secretary shall cancel the
approval of, or refuse to approve, a fertilizing material label if
the secretary determines that adequate proof of label claims does not
exist. The secretary, after hearing, may cancel the license of any
person who distributes a fertilizing material with a label for which
approval has been canceled or a label that has not been approved by
the secretary.
SEC. 13. Section 14632 of the Food and Agricultural Code is
repealed.
SEC. 14. 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 that
are used in the manufacture, transportation, importation,
distribution, storage, or application of any fertilizing material.
SEC. 15. 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) Inspect the fertilizing material manufacturing facilities and
take samples at various stages of production to verify label and
labeling claims and production processes.
SEC. 16. 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
one thousand dollars ($1,000) for the first violation and not less
than 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 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 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. 17. Section 14651.5 is added to the Food and Agricultural
Code, to read:
14651.5. (a) The department shall 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) Upon a finding that the violation is minor 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. 18. 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, misbrand, or
alter any fertilizing material with the result that the fertilizing
material would be inconsistent with the label claims. Any violation
of this subdivision is a misdemeanor punishable by a fine as follows:
(1) Not more than five thousand dollars ($5,000) for the first
violation that is not a knowing violation.
(2) Not more than fifteen thousand dollars ($15,000) for each
subsequent unknowing violation.
(3) Not less than fifteen thousand dollars ($15,000) for each
knowing violation.
(c) Any person found in violation of subdivision (b) of this
section or subdivision (e) of Section 14682 may also be prohibited by
the secretary from obtaining a license to sell organic input
materials for three years.
SEC. 19. 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 by the person having control of the material 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 thousand dollars ($5,000).
A second or subsequent violation of this subdivision is a
misdemeanor punishable by a fine of not less than ten thousand
dollars ($10,000).
SEC. 20. Section 14661 is added to the Food and Agricultural Code,
to read:
14661. (a) The department shall be entitled to receive
reimbursement from any person who is found in violation of this
chapter 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. 21. Section 14681 of the Food and Agricultural Code is
amended to read:
14681. No person shall distribute misbranded fertilizing
materials. A fertilizing material shall be deemed to be misbranded
under any of the following conditions:
(a) If its labeling is false or misleading in any particular way.
(b) If it is distributed under the name of another fertilizing
material.
(c) If it is not labeled as required by regulations adopted
pursuant to this chapter.
(d) If it purports to be, or is represented as, a fertilizing
material, or is represented as containing a primary or secondary
plant nutrient or micronutrients, or both, unless the plant nutrients
conform to the definition of identity, if any, prescribed by
regulation. In adopting these regulations, due regard shall be given
to commonly accepted definitions and official fertilizer terms such
as those prescribed by the Association of American Plant Food Control
Officials.
SEC. 22. Section 14682 of the Food and Agricultural Code is
amended to read:
14682. No person shall distribute an adulterated fertilizing
material. A fertilizing material shall be deemed to be adulterated
under any of the following conditions:
(a) If it contains any deleterious or harmful ingredient in
sufficient amounts to render it injurious to beneficial plant life
when applied in accordance with directions for use on the label, or
if adequate warning statements or directions for use that may be
necessary to protect plant life are not indicated on the label.
(b) If its composition falls below or differs from that which it
is purported to possess by its labeling.
(c) If it contains unwanted crop seed or weed seed.
(d) If it is a threat to public safety.
(e) If an organic input material contains ingredients that, in
type or amount, do not comply 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. 23. 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.