A. If the analysis shows that a fertilizer falls short of the guaranteed analysis in any one ingredient, penalty shall be assessed in accordance with the following:

(1) total nitrogen: a penalty of three times the value of the deficiency, if the deficiency is in excess of 0.20 of one percent on goods that are guaranteed two percent; 0.25 of one percent on goods that are guaranteed three percent; 0.35 of one percent on goods that are guaranteed four percent; 0.40 of one percent on goods that are guaranteed five percent up to and including eight percent; 0.50 of one percent on goods guaranteed above eight percent up to and including thirty percent; and 0.75 of one percent on goods guaranteed over thirty percent;

(2) available phosphoric acid or available phosphorus: a penalty of three times the value of the deficiency, if the deficiency exceeds 0.40 of one percent of available phosphate on goods that are guaranteed up to and including ten percent; 0.50 of one percent of available phosphate on goods that are guaranteed above ten percent up to and including twenty-five percent; and 0.75 of one percent of available phosphate on goods guaranteed over twenty-five percent. If guarantees are for available phosphorus, the deficiencies shall be calculated for the appropriate percentage of elemental phosphorus;

(3) soluble potash or soluble potassium: a penalty of three times the value of the deficiency, if the deficiency is in excess of 0.20 of one percent of soluble potash on goods that are guaranteed two percent; 0.30 of one percent of soluble potash on goods that are guaranteed three percent; 0.40 of one percent of soluble potash on goods guaranteed four percent; 0.50 of one percent of soluble potash on goods guaranteed above four percent up to and including eight percent; 0.60 of one percent of soluble potash on goods guaranteed above eight percent up to and including twenty percent; and 1.00 of one percent of soluble potash on goods guaranteed over twenty percent. If guarantees are for soluble potassium, the deficiencies shall be calculated for the appropriate percentage of elemental potassium; and

(4) deficiencies in any other constituent shall be evaluated by the department and penalties therefor prescribed by the board.

B. Nothing contained in this section shall prevent a person from appealing to a court of competent jurisdiction praying for judgment as to the justification of the penalties.

C. All penalties assessed under this section shall be paid to the consumer of the lot of fertilizer represented by the sample analyzed within three months after the date of notice from the department to the registrant. Receipts taken for penalty payments shall be promptly forwarded to the department. If the consumer cannot be found, the amount of the penalty shall be paid to the current school fund. If upon satisfactory evidence a person is shown to have altered the content of a fertilizer shipped to the person by a registrant or to have mixed or commingled fertilizer from two or more suppliers so that the result of either alteration changes the analysis of the fertilizer as originally guaranteed, that person shall be responsible for obtaining a registration and shall be held liable for all penalty payments and be subject to other provisions of the New Mexico Fertilizer Act, including seizure, condemnation and stop sale; provided that this provision does not apply to a consumer who mixes or otherwise alters fertilizer for use on property owned or leased by the consumer.

History: 1953 Comp., § 45-13-18, enacted by Laws 1963, ch. 184, § 8; 1975, ch. 181, § 8; 2013, ch. 112, § 7.

The 2013 amendment, effective June 14, 2013, required that a person who alters the content of fertilizer shipped from a registrant or mixes fertilizers from more than one supplier register and imposes penalties on that person; in Subsections A and C, deleted "commercial" before "fertilizer"; in Paragraph (2) of Subsection A, in the first sentence, in three places, deleted "phosphoric acid (P2O5)" and added "phosphate"; in Paragraph (3) of Subsection A, in the first sentence, in six places, after "potash", deleted "(K2O)"; and in Subsection C, in the second sentence, after "Receipts taken", deleted "therefor and found, and" and added "for penalty payments shall be", in the third sentence, after "shall be paid to the", deleted "common" and added "current", and added the fourth sentence.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 3 Am. Jur. 2d Agriculture §§ 70, 71.

3 C.J.S. Agriculture § 81.