Section 43-11-109 - Fertilizer deficiency - Penalties(a) If the analysis shall show that any commercial fertilizer falls short of the guaranteed analysis, penalties shall be assessed by the commissioner as follows: (1) When a deficiency in the analysis of any one (1) primary ingredient (nitrogen, phosphorus or potash) is greater than two (2) times the investigational allowance for that ingredient, penalties will be assessed in the amount of three (3) times the commercial value of the deficiency;(2) When a deficiency in the analysis of any one (1) primary ingredient is two (2) or less times the investigational allowance for that ingredient, an overall index value will be calculated. When the overall index value is less than ninety-seven percent (97%), the penalty assessed shall be three (3) times the difference between the found commercial value and the guaranteed commercial value of the primary nutrients;(3) When an analysis of any one (1) primary ingredient results in both a deficiency greater than two (2) times the investigation allowances and an overall index value of less than ninety-seven percent (97%), the greater of the two (2) penalties will be assessed. In no instance will the penalty assessed be greater than the retail value of the lot of fertilizer; and(4) When an analysis of any one (1) secondary nutrient (minor elements) is deemed deficient by exceeding the allowable deficiencies established by regulation, penalties assessed will be in the amount of three (3) times the commercial value of the deficiency.(b) When assessing penalties for fertilizer found to be deficient, tolerances and investigational allowances established by the Association of American Plant Food Control Officials and published in the annual official publication shall be recognized.(c) Deficiency in any other constituent or constituents covered under § 43-11-103(9)(A)(i), (ii) and (iii) that the registrant is required to or may guarantee shall be evaluated by the commissioner and penalties therefor shall be prescribed by the commissioner.(d) Nothing contained in this section shall prevent any person from appealing to a court of competent jurisdiction for judgment as to the justification of penalties.(e) All penalties assessed under this section shall be paid to the consumer of the lot of commercial fertilizer represented by the sample analyzed within two (2) months after the date of notice from the commissioner to the registrant, receipts taken therefor and promptly forwarded to the commissioner. If these consumers cannot be found, the amount of the penalty shall be paid to the department of agriculture, and shall be used only for the enforcement of this part. If, upon satisfactory evidence, a distributor is shown to have altered the content of a fertilizer shipped to such distributor by a registrant, or to have mixed or commingled fertilizer from two (2) or more supplies such that the result of either alteration changes the analysis of the fertilizer as originally guaranteed, then that distributor shall become responsible for obtaining a registration and shall be held liable for all penalty payments and be subject to other provisions of this part, including seizure, condemnation and stop sale.(f) A deficiency in an official sample of mixed fertilizer resulting from nonuniformity shall be handled in the same manner as a deficiency due to actual plant nutrient shortage.Acts 1969, ch. 102, § 9; 1977, ch. 166, § 1; T.C.A., § 43-1129; Acts 1986, ch. 659, § 8; 1988, ch. 544, § 4.