CHAPTER 38-19
COMMERCIAL FERTILIZER
38-19-1 Definition of terms.
38-19-2 38-19-2. Repealed by SL 1982, ch 281, § 4
38-19-2.1 Commercial fertilizer distribution license required--Fee--Penalty for violation--Notice.
38-19-2.2 Name and address required on application for distribution license and to appear on other materials of licensee.
38-19-3 38-19-3. Repealed by SL 1982, ch 281, § 5
38-19-3.1 38-19-3.1, 38-19-3.2. Repealed by SL 2001, ch 215, §§ 10, 11
38-19-4 38-19-4. Repealed by SL 1982, ch 281, § 8
38-19-4.1 38-19-4.1. Repealed by SL 2001, ch 215, § 12
38-19-5 Guaranteed analysis defined.
38-19-6 38-19-6 to 38-19-9. Repealed by SL 1982, ch 281, §§ 11 to 14
38-19-10 Inspection fee on fertilizer distributed in state--Rules.
38-19-10.1 Additional inspection fee deposited in precision agriculture fund.
38-19-11 38-19-11. Repealed by SL 1982, ch 281, § 16
38-19-12 Annual tonnage report--Inspection fees.
38-19-13 38-19-13. Repealed by SL 1982, ch 281, § 18
38-19-14 Fertilizer fund--Administration--Expenditures.
38-19-15 Labels required for fertilizer in containers--Contents.
38-19-16 Information to accompany bulk shipments--Fertilizer formulated under specifications furnished by consumer.
38-19-16.1 Labeling requirements applied to sewage sludge distributor--Availability of analyses.
38-19-17 Fertilizer deemed misbranded.
38-19-18 Fertilizer deemed adulterated.
38-19-19 Sale or distribution of adulterated or misbranded fertilizer as misdemeanor.
38-19-20 38-19-20. Repealed by SL 2001, ch 215, § 15
38-19-21 38-19-21 to 38-19-23. Repealed by SL 1982, ch 281, §§ 24 to 26
38-19-23.1 38-19-23.1. Repealed by SL 1977, ch 308, § 1
38-19-24 Intimate and uniform mixture required in custom mixing.
38-19-25 38-19-25. Repealed by SL 1982, ch 281, § 28
38-19-26 Guaranteed analysis of custom mix or fertilizer materials.
38-19-27 Sales and exchanges to manufacturers and mixers exempt from requirements.
38-19-28 Recommendation of grades of fertilizers for use in state--Publication of recommended lists.
38-19-29 38-19-29. Repealed by SL 1982, ch 281, § 29
38-19-30 Inspection and sampling to determine compliance with chapter.
38-19-30.1 Proof of claims required of licensed applicant or registrant--Sources of proof.
38-19-31 Manner of drawing and sealing official samples--Forwarding to director of laboratories.
38-19-32 Examination of samples and reports by director of laboratories.
38-19-33 Analytical methods used by director of laboratories.
38-19-34 Publication of analyses--Dissemination of information.
38-19-35 Annual publication of fertilizer data and analysis results--Separation by semiannual periods.
38-19-36 Rules and regulations for labeling, storage, and distribution.
38-19-36.1 Rules for siting of ammonia, fertilizer, and fertilizer production facilities.
38-19-36.2 Operation of bulk commercial fertilizer storage facility without permit prohibited--Rules--Revocation of permit--Violation as misdemeanor.
38-19-36.3 Civil penalty--Injunctive relief.
38-19-36.4 "Anhydrous ammonia" defined.
38-19-36.5 Mishandling anhydrous ammonia or tampering with equipment and facilities prohibited--Violation as felony--Civil penalty.
38-19-36.6 Action for damages against certain persons unavailable to person who tampers with equipment.
38-19-36.7 Section 38-19-36.6 not applicable against unlawful possessor of anhydrous ammonia.
38-19-36.8 Assumption of risk by person tampering with anhydrous ammonia--Immunity from liability for owners.
38-19-36.9 Owner of anhydrous ammonia defined.
38-19-36.10 Tampering defined.
38-19-37 Secretary charged with enforcement--Access to property and records.
38-19-37.1 Secretary to be given copies of labels and labeling.
38-19-38 Stop-sale orders against fertilizer in violation.
38-19-39 Seizure and condemnation of fertilizer in violation--Disposal--Release to claimant.
38-19-40 Injunction to prevent violations.
38-19-41 Violation of chapter, rule or regulation as misdemeanor.
38-19-42 38-19-42. Repealed by SL 1982, ch 281, § 30
38-19-43 Discretion in prosecution of minor violations--Warning.
38-19-44 38-19-44. Repealed by SL 1982, ch 281, § 31
38-19-45 Severability of provisions.
38-19-46 Promulgation of rules for transportation, use, application, disposal, or notice of fertilizer application.
38-19-47 Refusal or cancellation of commercial fertilizer distribution license for noncompliance--Opportunity to be heard.
38-19-48 Nutrient research and education fund created.
38-19-49 Deposit of inspection fees into nutrient research and education fund--Purposes of disbursements.
38-19-50 Nutrient Research and Education Council created--Membership.
38-19-51 Duties of Nutrient Research and Education Council.
38-19-1. Definition of terms.
Terms, as used in this chapter, mean:
(1) "Available phosphoric acid," the sum of the water-soluble and the citrate-soluble phosphoric acid and reported as phosphorus pentoxide;
(2) "Brand," a term, design, or trademark used in connection with one or several grades of commercial fertilizer;
(3) "Bulk commercial fertilizer," any volume of a commercial fertilizer which is transported or held for resale in an immediate reusable container in undivided quantities greater than one hundred pounds net dry weight or fifty-five U.S. gallons liquid measure;
(4) "Bulk commercial fertilizer storage facility," any area, location, tract of land, building, structure, or premises constructed in accordance with rules promulgated by the secretary for the storage of bulk commercial fertilizer;
(5) "Commercial fertilizer," any substance, including manipulated manure, containing any recognized plant nutrient which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, lime sludge, sewage sludge, wood ashes, gypsum, compost, and other products excluded by rule;
(5A) "Compost," a group of organic residues or a mixture of organic residues and soil that have been piled, moistened, and allowed to undergo aerobic biological decomposition;
(6) "Distribute," to import, consign, manufacture, produce, compound, mix, or blend commercial fertilizer, or to offer for sale, sell, barter, or otherwise supply commercial fertilizer in this state;
(7) "Distributor," any person who distributes commercial fertilizer in this state;
(8) "Fertilizer material," a commercial fertilizer which either:
(a) Contains important quantities of no more than one of the primary plant nutrients: nitrogen, phosphoric acid, and potash;
(b) Has approximately eighty-five percent of its plant nutrient content present in the form of a single chemical compound; or
(c) Is derived from a plant or animal residue or by-product or a natural material deposit which has been processed in such a way that its content of primary plant nutrients has not been materially changed except by purification and concentration;
(9) "Grade," the percentage of total nitrogen, available phosphoric acid, and soluble potash stated in whole numbers in the same terms, order, and percentages as in the guaranteed analysis. However, speciality fertilizers may be guaranteed in fractional units of less than one percent of total nitrogen, available phosphoric acid, and soluble potash. Fertilizer materials, bone meal, manures, and similar raw materials may be guaranteed in fractional units;
(10) "Investigational allowance," allowance for variations inherent in the taking, preparation, and analysis of an official sample of commercial fertilizer;
(11) "Label," a display of written, printed, or graphic matter on or attached to the immediate container of any article and the outside container or wrapper of the retail package, or a statement or document accompanying a commercial fertilizer;
(12) "Labeling," all written, printed, or graphic matter, upon or accompanying any commercial fertilizer or advertisements, brochures, posters, television, and radio announcements used in promoting the sale of commercial fertilizer;
(13) "Licensee," any person who receives a license to distribute a commercial fertilizer under the provisions of this chapter;
(13A) "Manipulated manure," any animal or vegetable manure collected or stored in a manner consistent with practices commonly implemented in agricultural production that has been subjected to practices including composting, mechanical dewatering, or pelletizing or altered in any way to change chemical, physical, or biological characteristics;
(14) "Metric ton," a net weight of one thousand kilograms;
(15) "Mixed fertilizer," a commercial fertilizer containing any combination or mixture of fertilizer materials;
(16) "Nitrogen," the element of nitrogen;
(17) "Official sample," any sample of commercial fertilizer taken by the secretary of agriculture and natural resources or department agent according to methods prescribed by this chapter;
(18) "Percent" or "percentage," the percentage by weight;
(19) "Primary nutrients," nitrogen, available phosphoric acid, and soluble potash;
(20) "Recognized plant nutrients," primary nutrients, secondary nutrients, and micro nutrients;
(21) Deleted by SL 2001, ch 215, § 7;
(22) "Secondary and micro nutrients," those nutrients other than primary nutrients that are essential for the normal growth of plants and that may need to be added to the growth medium. Secondary plant nutrients include calcium, magnesium, and sulfur; micro plant nutrients include boron, chlorine, cobalt, copper, iron, manganese, molybdenum, sodium, and zinc;
(23) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(24) "Sell:"
(a) The act of selling, transferring ownership;
(b) The offering and exposing for sale, exchange, or distribution;
(c) Giving away; or
(d) Receiving, accepting, holding or possession for sale, exchange, or distribution;
(25) "Sewage sludge," "sludge," "biosolids," any solid, semisolid, or liquid residue removed during the treatment of municipal or domestic sewage by publicly-owned treatment works regulated under 40 CFR Part 503, as amended to January 1, 1995, and the Clean Water Act as amended to January 1, 1995;
(26) "Soluble potash," that portion of the potash contained in fertilizers or fertilizer materials which is soluble in an aqueous ammoniacal solution of 0.8% ammonium oxalate, after boiling in a 1.14% solution of ammonium oxalate and reported as potassium oxide;
(27) "Ton," a net weight of two thousand pounds avoirdupois.
Source: SL 1949, ch 85, § 2; SDC Supp 1960, § 22.1702; SL 1966, ch 66, §§ 1, 2; SL 1982, ch 281, § 1; SL 1986, ch 331, §§ 1, 2; SL 1988, ch 315, § 2; SL 1995, ch 324, §§ 1 to 3; SL 2001, ch 215, § 7; SL 2015, ch 203, § 13; SL 2016, ch 200, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-2.1. Commercial fertilizer distribution license required--Fee--Penalty for violation--Notice.
No person whose name appears on the label of a commercial fertilizer or who manufactures or mixes a commercial fertilizer in this state may distribute that fertilizer until the person has obtained a distribution license from the secretary of agriculture and natural resources. A distribution license is required for each location where commercial fertilizer is manufactured or mixed. The license may be granted only after payment of a fee of twenty-five dollars by the licensee. Each license expires on the thirty-first day of December of the year after the date of issuance. Any distribution license application for renewal received after the thirty-first day of January of any year shall be assessed a late payment fee equal to the original license fee, which shall be added to the original fee and shall be paid by the applicant before the renewal license is issued. Any person who fails to obtain the proper license is subject to a civil penalty not to exceed one thousand dollars per violation. Notice shall be given by registered mail prior to the imposition of any civil penalty.
Source: SL 1982, ch 281, § 2; SL 1987, ch 286; SL 2001, ch 215, § 8; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-2.2. Name and address required on application for distribution license and to appear on other materials of licensee.
An application for a commercial fertilizer distribution license shall include the name and address of the licensee. The licensee's name and address as it appears on the license shall appear on all labels and pertinent invoices used by the licensee and on all bulk storage units operated by the licensee in this state.
Source: SL 1982, ch 281, § 3; SL 2001, ch 215, § 9.
38-19-5. Guaranteed analysis defined.
The term, guaranteed analysis, means the minimum percentage of plant nutrients claimed in the following order and form:
(1) Total nitrogen (N) ____________ percent
Available phosphoric acid (P2O5) or available phosphate ____________ percent
Soluble potash (K2O) ____________ percent
(2) For unacidulated mineral phosphatic materials and basic slag, both total and available phosphoric acid and the degree of fineness shall be stated. For bone, tankage, and other organic phosphatic materials, total phosphoric acid shall be stated.
(3) Guarantees for plant nutrients other than nitrogen, phosphoric acid, and potash may be permitted or required by regulations of the secretary of agriculture and natural resources. The guarantees for such other nutrients shall be expressed in the form of the element. The sources of such other nutrients (oxides, salt, chelates, etc.) may be required to be stated on the application for registration and may be included as a parenthetical statement on the label. Other beneficial substances or compounds, determinable by laboratory methods, also may be guaranteed by permission of the secretary and with the advice of the director of the agricultural experiment station. When any plant nutrients or other substances or compounds are guaranteed they shall be subject to inspection, analysis, and minimum standards in accord with the methods prescribed by this chapter and the regulations promulgated hereunder.
Source: SDC Supp 1960, § 22.1702 (20) (a) as added by SL 1966, ch 66, § 2; SL 1982, ch 281, § 10; SL 2015, ch 203, § 14; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-10. Inspection fee on fertilizer distributed in state--Rules.
Each licensed distributor of commercial fertilizer shall pay to the secretary of agriculture and natural resources for all commercial fertilizer distributed in this state an inspection fee in accordance with the provisions of § 38-19-12, not to exceed seventy-five cents per ton. The secretary of agriculture and natural resources shall promulgate rules pursuant to chapter 1-26 to establish the inspection fee.
Source: SL 1949, ch 85, § 4; SDC Supp 1960, § 22.1704 (1); SL 1982, ch 281, § 15; SL 1989, ch 306, § 54; SL 1993, ch 304, § 1; SL 2001, ch 215, § 13; SL 2016, ch 201, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-10.1. Additional inspection fee deposited in precision agriculture fund.
In addition to the fee imposed by § 38-19-10, each licensed distributor of commercial fertilizer shall pay to the secretary of agriculture and natural resources for all commercial fertilizer distributed in this state an inspection fee of twenty-five cents per ton in accordance with the provisions of § 38-19-12. Notwithstanding the provisions of § 38-19-14, the fee imposed by this section shall be deposited in the precision agriculture fund created pursuant to § 13-49-38.
Source: SL 2018, ch 123, § 9; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
Commission Note: This section is repealed pursuant to SL 2018, ch 123, § 11 on the first day of the fiscal year following a determination by the Board of Regents that the bonds authorized pursuant to SL 2018, ch 123, § 4 are satisfied and paid in full.
38-19-12. Annual tonnage report--Inspection fees.
Each licensed distributor of commercial fertilizer shall file with the secretary of agriculture and natural resources on forms furnished by the secretary an annual statement for the period ending December thirty-first setting forth the number of net tons of each grade of commercial fertilizer distributed in this state during the reporting period. The report is due on or before the thirty-first of January following the close of the reporting period and on the basis of the statement each licensed distributor of commercial fertilizer shall pay the inspection fee at the rate pursuant to § 38-19-10. If more than one person is involved in the distribution of a commercial fertilizer, the distributor who imports, manufactures, or produces the commercial fertilizer is responsible for the inspection fee on products produced or brought into this state. The distributor shall separately list the inspection fee on the invoice to the licensee. The last licensee shall retain the invoices showing proof of inspection fees paid for three years and shall pay the inspection fee on commercial fertilizer brought into this state unless the distributor has reported and paid the fees. If the tonnage report is not filed and the payment of inspection fee is not made within thirty days after the end of the period, a collection fee amounting to ten percent of the amount shall be assessed against the licensee and the amount of fees due constitutes a debt and becomes the basis of a judgment against the licensee. However, the minimum inspection fee is ten dollars. The secretary may verify the records on which statements of tonnage are based and each licensed distributor of commercial fertilizer shall grant the secretary permission to verify the records on the licensee's application for license and on each tonnage report. The secretary may revoke or refuse to renew the license of any licensee failing to comply with this section. No information furnished under this section may be disclosed by the secretary or anyone having access to tonnage reports if the disclosure will in any way divulge any part of the operations of a licensee.
Source: SL 1949, ch 85, § 4; SDC Supp 1960, § 22.1704 (1); SL 1982, ch 281, § 17; SL 2001, ch 215, § 36; SL 2015, ch 203, § 15; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-14. Fertilizer fund--Administration--Expenditures.
Fees collected pursuant to this chapter shall be deposited with the state treasurer in a special revenue fund known as the fertilizer fund. This fund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and the fees received pursuant to this chapter. The fund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the fertilizer program and to provide funding for fertilizer-related, nutrient-related, and water quality-related research and education-related purposes as provided in § 38-19-49. Expenditures from the fund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature.
Source: SL 1949, ch 85, § 4; SDC Supp 1960, § 22.1704 (4); SL 1993, ch 304, § 2; SL 2016, ch 201, § 3.
38-19-15. Labels required for fertilizer in containers--Contents.
Any commercial fertilizer distributed in this state in containers shall have placed on or affixed to the container a label setting forth in clearly legible and conspicuous form the following information:
(1) Net weight;
(2) Brand and grade;
(3) Guaranteed analysis;
(4) The source or sources from which the nitrogen phosphorus and potassium are derived; and
(5) Name and address of licensee or registrant.
Source: SL 1949, ch 85, § 5; SDC Supp 1960, § 22.1705 (1); SL 1982, ch 281, § 19; SL 2015, ch 203, § 16.
38-19-16. Information to accompany bulk shipments--Fertilizer formulated under specifications furnished by consumer.
In the case of bulk shipments, a label stating the information required by § 38-19-15 shall accompany delivery and be supplied to the purchaser at time of delivery in written or printed form. A commercial fertilizer formulated according to specifications which are furnished by a consumer prior to mixing shall be labeled to show the net weight, guaranteed analysis, and the name and address of the licensee or registrant.
Source: SL 1949, ch 85, § 5; SDC Supp 1960, § 22.1705(2); SL 1982, ch 281, § 20; SL 1986, ch 331, § 3.
38-19-16.1. Labeling requirements applied to sewage sludge distributor--Availability of analyses.
Any distributor of sewage sludge, as defined in § 38-19-1, shall comply with provisions of § 38-19-15 or 38-19-16, whichever is applicable. Any distributor shall make available, upon request, any analyses or information about the sewage sludge to the Department of Agriculture and Natural Resources and the end user of the product.
Source: SL 1995, ch 324, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-17. Fertilizer deemed misbranded.
For the purposes of this chapter, a commercial fertilizer is deemed to be misbranded:
(1) If the label or labeling carries any false or misleading statement either as to the materials contained in the fertilizer or concerning its agricultural value;
(2) If it be so labeled or branded as to deceive or mislead the purchaser; or
(3) If it is not labeled to give all the information required by §§ 38-19-15 and 38-19-16 and such additional information as may be required by rule promulgated pursuant to the provisions of chapter 1-26 and issued by the secretary of agriculture and natural resources as provided in § 38-19-36.
Source: SL 1949, ch 85, § 6; SDC Supp 1960, § 22.1706(2); SL 1986, ch 326, § 28; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-18. Fertilizer deemed adulterated.
For the purposes of this chapter, a commercial fertilizer is deemed to be adulterated:
(1) If it contains any deleterious or harmful ingredient in sufficient amount 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, which may be necessary to protect plant life, are not shown on the label;
(2) If its composition falls below or differs from that which it is purported to possess by its labeling;
(3) If it contains unwanted crop seed or weed seed; or
(4) If it contains any deleterious or harmful ingredient in sufficient amount that, if the product is used in accordance with label instructions, it renders the commodity that is derived from the treated crop injurious to humans, wildlife, livestock, or the environment or renders the commodity unsaleable.
Source: SL 1949, ch 85, § 6; SDC Supp 1960, § 22.1706 (1); SL 1982, ch 281, § 21; SL 2001, ch 215, § 14.
38-19-19. Sale or distribution of adulterated or misbranded fertilizer as misdemeanor.
It is a Class 2 misdemeanor to sell, distribute, offer, or expose for sale or distribution any commercial fertilizer which is adulterated or misbranded.
Source: SL 1949, ch 85, § 6; SDC Supp 1960, § 22.1706 (3); SL 1977, ch 190, § 324.
38-19-24. Intimate and uniform mixture required in custom mixing.
A licensee shall at all times produce an intimate and uniform mixture of fertilizer materials. When two or more fertilizer materials are delivered in the same load, they shall be intimately and uniformly mixed unless they are in separate compartments. To provide for intimate and uniform mixture of fertilizer materials, the secretary, pursuant to the provisions of chapter 1-26, may promulgate rules to establish good manufacturing practices.
Source: SDC Supp 1960, § 22.1703(2)(b) as enacted by SL 1966, ch 66, § 3; SL 1982, ch 281, § 27; SL 1986, ch 326, § 30.
38-19-26. Guaranteed analysis of custom mix or fertilizer materials.
In lieu of the guaranteed analysis, the person who mixes to the customer's order must furnish to the purchaser and consumer a written or printed statement showing the weight and guaranteed analysis of each of the fertilizer materials used in the intimate mixture or delivered in each of the separate compartments in the load.
Source: SDC Supp 1960, § 22.1703 (2) (c) as enacted by SL 1966, ch 66, § 3.
38-19-27. Sales and exchanges to manufacturers and mixers exempt from requirements.
Nothing in this chapter shall be construed to restrict or avoid sales or exchanges of commercial fertilizers to each other by importers, manufacturers, or manipulators who mix fertilizer materials for sale, or as preventing the free and unrestricted shipments of commercial fertilizers to manufacturers or manipulators who have registered their brands as required by the provisions of this chapter.
Source: SL 1949, ch 85, § 16; SDC Supp 1960, § 22.1716.
38-19-28. Recommendation of grades of fertilizers for use in state--Publication of recommended lists.
The secretary of agriculture and natural resources may in his discretion hold public hearing open to all interested parties and with the aid of available and impartial data promulgate a list of grades of mixed fertilizers recommended as adapted to the agricultural needs of the state. Immediately after such hearing or as nearly as practicable thereafter it shall be the duty of the secretary with the cooperation of the agricultural experiment station and the extension service to give wide publicity to such list of adapted grades of mixed fertilizers so the consumers may profit by this information and avoid loss of time and money by the use of fertilizers not adapted to their soil needs.
Source: SL 1949, ch 85, § 9; SDC Supp 1960, § 22.1709; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-30. Inspection and sampling to determine compliance with chapter.
It shall be the duty of the secretary of agriculture and natural resources, who may act through his authorized agents, to inspect and sample commercial fertilizers offered for sale, sold, or distributed within this state at such time and place and to such an extent as he may deem necessary to determine whether such commercial fertilizers are in compliance with the provisions of this chapter, and the secretary shall have the further authority to obtain such additional information as he may deem advisable.
Source: SL 1949, ch 85, § 7; SDC Supp 1960, § 22.1707 (1); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-30.1. Proof of claims required of licensed applicant or registrant--Sources of proof.
The secretary of agriculture and natural resources may require a license applicant or registrant to furnish proof of claims made for any product covered by this chapter and may require proof of value when used as directed or recommended. The secretary shall rely on replicate, or the data derived therefrom, performed by a reputable investigator. The experimental data shall be obtained under conditions similar to those in this state under which the product is intended to be used. The secretary may accept or reject other sources of proof as additional evidence.
Source: SL 1982, ch 281, § 22; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-31. Manner of drawing and sealing official samples--Forwarding to director of laboratories.
An official fertilizer sample shall be one drawn in the manner prescribed by the secretary of agriculture and natural resources from a lot or shipment of fertilizer sold or exposed for sale in this state. In sampling a lot of commercial fertilizer packaged in small containers (less than five pounds each) a single package may constitute the official sample. All samples collected shall be sealed and marked with identifying marks in the presence of the dealer or person from whom taken, and shall be promptly forwarded to the director of laboratories for examination.
Source: SL 1949, ch 85, § 7; SDC Supp 1960, § 22.1707 (2); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-32. Examination of samples and reports by director of laboratories.
It shall be the duty of the director of laboratories to examine all samples submitted under the provisions of this chapter and to report results promptly to the secretary of agriculture and natural resources.
Source: SL 1949, ch 85, § 7; SDC Supp 1960, § 22.1707 (2); SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-33. Analytical methods used by director of laboratories.
The methods of analysis shall be those adopted by the secretary of agriculture and natural resources, through rules promulgated pursuant to the provisions of chapter 1-26, from published sources such as those of the association of official analytical chemists.
Source: SL 1949, ch 85, § 7; SDC Supp 1960, § 22.1707(3); SL 1986, ch 326, § 31; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-34. Publication of analyses--Dissemination of information.
The secretary of agriculture and natural resources shall have authority to publish analyses of all products within the purview of this chapter and to gather and disseminate for the benefit of the public useful information concerning fertilizers and fertilizer materials.
Source: SL 1919, ch 207, § 6; SDC 1939, § 22.1701; SL 1949, ch 85, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-35. Annual publication of fertilizer data and analysis results--Separation by semiannual periods.
The secretary of agriculture and natural resources shall publish at least annually, in such forms as he may deem proper, information concerning the sales of commercial fertilizers, together with such data on their production and use as he may consider advisable, and report of the results of the analyses based on official samples of commercial fertilizers sold within the state as compared with the analyses guaranteed under § 38-19-15. Provided, however, that the information concerning production and use of commercial fertilizers shall be shown separately for the periods July first to December thirty-first and January first to June thirtieth of each year, and no disclosure shall be made of the operations of any person.
Source: SL 1949, ch 85, § 11; SDC Supp 1960, § 22.1711; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-36. Rules and regulations for labeling, storage, and distribution.
For enforcement of this chapter, the secretary of agriculture and natural resources may promulgate, pursuant to the provisions of chapter 1-26, rules relating to labeling, storage, licensing, sampling, inspection, analysis, and distribution of commercial fertilizers to carry into effect the full intent and meaning of this chapter.
Source: SL 1949, ch 85, § 12; SDC Supp 1960, § 22.1712; SL 1966, ch 66, § 5; SL 1986, ch 326, § 32; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-36.1. Rules for siting of ammonia, fertilizer, and fertilizer production facilities.
The secretary, pursuant to the provisions of chapter 1-26, may promulgate rules for siting of anhydrous ammonia storage facilities, for commercial fertilizer storage facilities and for commercial fertilizer production facilities.
Source: SL 1986, ch 326, § 34.
38-19-36.2. Operation of bulk commercial fertilizer storage facility without permit prohibited--Rules--Revocation of permit--Violation as misdemeanor.
No person may establish or operate a bulk commercial fertilizer storage facility without obtaining a bulk commercial fertilizer storage facility permit from the secretary. The secretary may establish by rule, promulgated pursuant to chapter 1-26, a bulk commercial fertilizer storage facility permit system and operational requirements necessary for secondary containment of bulk commercial fertilizer for the protection of the environment and human health. The secretary may require that appropriate plans and specifications for construction and operation of a bulk commercial fertilizer storage facility be submitted for approval prior to the issuance, modification, suspension, or revocation of a permit. If a bulk commercial fertilizer storage facility is operating in violation of the permit requirements established pursuant to rules promulgated under this section, the secretary may grant a reasonable period of time for the facility to comply with the rules. If the facility does not comply with the rules in the prescribed period of time, the secretary shall revoke the operating permit pursuant to chapter 1-26. Any person operating a bulk commercial fertilizer storage facility without a permit issued pursuant to this section, or operating with a revoked permit, is guilty of a Class 1 misdemeanor.
Source: SL 1988, ch 315, § 3.
38-19-36.3. Civil penalty--Injunctive relief.
Any person who operates a bulk commercial fertilizer storage facility without a permit or who violates the bulk commercial fertilizer storage facility permit provision of this section and §§ 38-19-1 and 38-19-36.2 is subject to a civil action in circuit court for the recovery of a civil penalty not to exceed five hundred dollars for each day of violation. In addition, the secretary, through the attorney general's office, may enforce the provisions of this section and §§ 38-19-1 and 38-19-36.2 by means of injunctive and declaratory relief in circuit court.
Source: SL 1988, ch 315, § 4.
38-19-36.4. "Anhydrous ammonia" defined.
For the purposes of §§ 38-19-36.4 to 38-19-36.7, inclusive, the term, anhydrous ammonia, means a compound formed by the chemical combination of the elements nitrogen and hydrogen in the molar proportion of one part nitrogen to three parts hydrogen as shown by the chemical formula NH3. On a weight basis, the ratio is fourteen parts nitrogen to three parts hydrogen or approximately eighty-two percent nitrogen to eighteen percent hydrogen. Anhydrous ammonia may exist in either a gaseous or a liquid state.
Source: SL 2001, ch 216, § 1.
38-19-36.5. Mishandling anhydrous ammonia or tampering with equipment and facilities prohibited--Violation as felony--Civil penalty.
No person may:
(1) Place, have placed, or possess anhydrous ammonia in a container that is not designed, constructed, maintained, and authorized to contain or transport anhydrous ammonia;
(2) Transport anhydrous ammonia in a container that is not designed, constructed, maintained, and authorized to transport anhydrous ammonia;
(3) Use, deliver, receive, sell, or transport a container designed and constructed to contain anhydrous ammonia without the express consent of the owner or authorized custodian of the container; or
(4) Tamper with any equipment or facility used to contain, store, or transport anhydrous ammonia.
For the purposes of this section, containers designed and constructed for the storage and transport of anhydrous ammonia are described in the Code of Federal Regulations, title 49 as of January 1, 2001. Any person who violates the provisions of this section is guilty of a Class 5 felony or is subject to a civil penalty not to exceed fifty thousand dollars or both.
Source: SL 2001, ch 216, § 2.
38-19-36.6. Action for damages against certain persons unavailable to person who tampers with equipment.
Except as provided in § 38-19-36.7, a person tampering with anhydrous ammonia containers or equipment under § 38-19-36.5 has no cause of action for damages arising out of the tampering against:
(1) The owner or lawful custodian of the container or equipment;
(2) A person responsible for the installation or maintenance of the container or equipment; or
(3) A person lawfully selling or offering for sale the anhydrous ammonia.
Source: SL 2001, ch 216, § 3.
38-19-36.7. Section 38-19-36.6 not applicable against unlawful possessor of anhydrous ammonia.
The provisions of § 38-19-36.6 do not apply to a cause of action against a person who unlawfully obtained the anhydrous ammonia or anhydrous ammonia container or who possesses the anhydrous ammonia or anhydrous ammonia container for any unlawful purpose.
Source: SL 2001, ch 216, § 4.
38-19-36.8. Assumption of risk by person tampering with anhydrous ammonia--Immunity from liability for owners.
Any person tampering with or assisting in tampering with anhydrous ammonia assumes the risk of personal injury, death, and any other economic or noneconomic loss or damage arising from tampering with or assisting in tampering with anhydrous ammonia. An owner of anhydrous ammonia is not liable to such person for personal injury, death, or any other economic or noneconomic loss or damage arising out of tampering with or assisting in tampering with anhydrous ammonia, except in any case in which such loss or damage was caused by conduct of the owner that was willful, wanton, reckless, or grossly negligent.
Source: SL 2004, ch 258, § 1.
38-19-36.9. Owner of anhydrous ammonia defined.
For purposes of this §§ 38-19-36.8 to 38-19-36.10, inclusive, the term, owner of anhydrous ammonia, means any person who, for any lawful purpose:
(1) Owns anhydrous ammonia;
(2) Owns a container, equipment, or storage facility containing anhydrous ammonia;
(3) Is responsible for the installation or operation of a container, equipment, or storage facility containing anhydrous ammonia;
(4) Sells anhydrous ammonia;
(5) Purchases anhydrous ammonia; or
(6) Operates or uses anhydrous ammonia containers, equipment, or storage facilities.
Source: SL 2004, ch 258, § 2.
38-19-36.10. Tampering defined.
For the purposes of §§ 38-19-36.8 to 38-19-36.10, inclusive, the term, tampering, means unlawfully releasing, transferring, or attempting to release or transfer anhydrous ammonia from its present container, equipment, or storage facility to another container, equipment, or storage facility or the subsequent transport of such anhydrous ammonia.
Source: SL 2004, ch 258, § 3.
38-19-37. Secretary charged with enforcement--Access to property and records.
The secretary of agriculture and natural resources is charged with the administration and enforcement of this chapter and he and his deputies, assistants, agents, and employees shall have all the rights of visitation, inspection, sampling, examination, and access to places, property, containers and records, and prosecution, as the same are provided in this title or in any of the chapters of Title 39.
Source: SL 1919, ch 207, § 6; SDC 1939, § 22.1701; SL 1949, ch 85, § 1; SL 1986, ch 326, § 33; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-37.1. Secretary to be given copies of labels and labeling.
Each license applicant or licensee shall, upon request of the secretary, furnish copies of labels and labeling in order to permit the secretary to determine compliance with the provisions of this chapter.
Source: SL 2001, ch 215, § 16.
38-19-38. Stop-sale orders against fertilizer in violation.
It shall be the duty of the secretary of agriculture and natural resources to issue and enforce written or printed "stop-sale, use, or removal" order to the owner or custodian of any lot of commercial fertilizer and to hold at a designated place when the secretary finds said commercial fertilizer is being offered or exposed for sale in violation of any of the provisions of this chapter or any regulation issued hereunder, until the law has been complied with and said commercial fertilizer is released in writing by the secretary or said violation has been otherwise legally disposed of by written authority.
Source: SL 1949, ch 85, § 14; SDC Supp 1960, § 22.1714; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-39. Seizure and condemnation of fertilizer in violation--Disposal--Release to claimant.
Any lot of commercial fertilizer not in compliance with the provisions of this chapter shall be subject to seizure and condemnation on complaint of the secretary of agriculture and natural resources to a court of competent jurisdiction in the area in which said commercial fertilizer is located. In the event the court finds the said commercial fertilizer to be in violation of this chapter and orders the condemnation of said commercial fertilizer it shall be disposed of in any manner consistent with the quality of the commercial fertilizer and the laws of this state; provided, that in no instance shall the disposition of said commercial fertilizer be ordered by the court without first giving the claimant an opportunity to apply to the court for the release of said commercial fertilizer or for permission to process or relabel said commercial fertilizer to bring it into compliance with this chapter.
Source: SL 1949, ch 85, § 15; SDC Supp 1960, § 22.1715; SL 1966, ch 66, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-40. Injunction to prevent violations.
The secretary of agriculture and natural resources is hereby authorized to apply for and the court to grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rule or regulation promulgated under the chapter notwithstanding the existence of other remedies at law. Said injunction shall be issued without bond.
Source: SDC Supp 1960, § 22.1715 (1) (e) as added by SL 1966, ch 66, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-41. Violation of chapter, rule or regulation as misdemeanor.
Any person violating any of the provisions of this chapter or any rule or regulation promulgated hereunder is guilty of a Class 2 misdemeanor.
Source: SL 1919, ch 207, § 5; SDC 1939, § 22.9926; SL 1949, ch 85, § 17; SDC Supp 1960, § 22.9926-1; SDC Supp 1960, § 22.1715 (1) (b) as added by SL 1966, ch 66, § 6; SL 1977, ch 190, § 325.
38-19-43. Discretion in prosecution of minor violations--Warning.
Nothing in this chapter shall be construed as requiring the secretary of agriculture and natural resources or his representative to report for prosecution, or for the institution of seizure proceedings, minor violations of the chapter when he believes that the public interests will be best served by a suitable notice of warning in writing.
Source: SL 1949, ch 85, § 17; SDC Supp 1960, § 22.1717; SDC Supp 1960, § 22.1715 (1) (c) as added by SL 1966, ch 66, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-45. Severability of provisions.
If any clause, sentence, paragraph, or part of this chapter shall for any reason be judged invalid by any court of competent jurisdiction, such judgment shall not affect, impair, or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered.
Source: SL 1949, ch 85, § 18; SDC Supp 1960, § 22.1718.
38-19-46. Promulgation of rules for transportation, use, application, disposal, or notice of fertilizer application.
The secretary of agriculture and natural resources may promulgate rules pursuant to chapter 1-26 relating to transportation, use, application, disposal, posting of application sites, or notification of the public or other individuals who may be affected by a commercial fertilizer application that has occurred or will occur in the future.
Source: SL 1992, ch 284, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-47. Refusal or cancellation of commercial fertilizer distribution license for noncompliance--Opportunity to be heard.
The secretary of agriculture and natural resources may reject the commercial fertilizer distribution license application of any firm not in compliance with the provisions of this chapter and may cancel the commercial fertilizer license of any firm subsequently found not to be in compliance with any provision of this chapter. However, no commercial fertilizer distribution license may be refused or canceled unless the licensee has been given an opportunity to be heard before the secretary and to amend the application in order to comply with the requirements of this chapter.
Source: SL 2001, ch 215, § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
38-19-48. Nutrient research and education fund created.
There is hereby created a nutrient research and education fund for the purpose of advancing fertilizer-related, nutrient-related, and water quality-related purposes as provided in § 38-19-49. Any money in the nutrient research and education fund is continuously appropriated to the Agriculture Experiment Station. The state may accept and expend for the purposes of §§ 38-19-48 to 38-19-51, inclusive, funds obtained from appropriations or any other source. Interest earned on money in the fund shall be deposited into the fund. Any money deposited into and distributed from the fund shall be set forth in an informational budget as described in § 4-7-7.2.
Source: SL 2016, ch 201, § 7.
38-19-49. Deposit of inspection fees into nutrient research and education fund --Purposes of disbursements.
From each fee collected pursuant to § 38-19-10, fifty cents shall be deposited into the nutrient research and education fund created in § 38-19-48. The nutrient research and education fund shall be disbursed as follows:
(1) The Agriculture Experiment Station may use an amount not to exceed five percent of the revenue deposited in the fund for administrative expenses necessary to carry out the functions of §§ 38-19-48 to 38-19-51, inclusive;
(2) The balance of the fund shall be used for fertilizer-related, nutrient-related, and water quality-related research and education purposes in conjunction with the Nutrient Research and Education Council; and
(3) Beginning in fiscal year 2020, a minimum of ten percent of the fund shall be used to support water quality projects.
Source: SL 2016, ch 201, § 4.
38-19-50. Nutrient Research and Education Council created--Membership.
The Nutrient Research and Education Council is hereby established. The council shall consist of nine voting members, including three representing the fertilizer industry, two representing grower organizations, one representing the state's largest commodity organization, one representing the specialty fertilizer industry, one representing the certified agronomy association, and one farmer member of the State Conservation Commission. The council shall also include five nonvoting members: two representing environmental organizations, one representing the director of the South Dakota Agricultural Experiment Station, and two representing the secretary of the Department of Agriculture and Natural Resources. The certified agronomy association and any association or organization representing the fertilizer industry, growers, and the environment may submit nominations to the secretary of agriculture and natural resources for their respective members. The secretary shall select from these nominations the members of the council. Members of the council may receive no compensation, but members may be reimbursed for travel and subsistence expense at the rates set pursuant to chapter 3-9. The council shall meet at least twice each year. The council shall be provided with staff assistance from the South Dakota Agricultural Experiment Station. The council retains the respective quasi-judicial, quasi-legislative, advisory, other nonadministrative and special budgetary functions as defined in § 1-32-1 otherwise vested in the council. The council shall exercise those functions independently of the South Dakota Agricultural Experiment Station.
Source: SL 2016, ch 201, § 5; SL 2018, ch 242, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 67, eff. Apr. 19, 2021; SL 2024, ch 20, § 16.
38-19-51. Duties of Nutrient Research and Education Council.
The Nutrient Research and Education Council established in § 38-19-50, acting in cooperation and conjunction with the South Dakota Agricultural Experiment Station, shall:
(1) Prioritize nutrient research, water quality research, and education proposals and solicit research proposals to generate findings and make recommendations to the council based on the findings;
(2) Evaluate the proposed budget for each research project and make recommendations as necessary;
(3) Arrange for peer review of all research proposals for scientific merit and methods;
(4) Disseminate the findings of all research projects to the appropriate agricultural sector in the manner deemed most effective; and
(5) Cooperate with other programs with similar goals, if practicable.
The council shall publish an annual financial and activities report, including the amount of funds collected and expenditures for nutrient programs.
Source: SL 2016, ch 201, § 6.