Proposed Rules Title 4

TITLE 4. AGRICULTURE

Part 3. TEXAS FEED AND FERTILIZER CONTROL SERVICE/OFFICE OF THE TEXAS STATE CHEMIST

Chapter 65. COMMERCIAL FERTILIZER RULES

The Texas Feed and Fertilizer Control Service/Office of the Texas State Chemist proposes to amend TAC Title 4, Part 3, Subchapter A, §65.1 concerning Definitions, as well as to propose a new section in Subchapter B, §65.6 concerning Distribution of Ammonium Nitrate or Ammonium Nitrate Material. These proposed changes to our Commercial Fertilizer Rules are taken to comply with H.B. 2546 that was passed during the 80th legislative session. In §63.154(b)(1) of this new bill, the Office of the Texas State Chemist is instructed to adopt rules allowing a person to refuse sale of ammonium nitrate and ammonium nitrate material. These proposed rules fulfill that requirement.

Dr. Tim Herrman, State Chemist and Director, Office of the Texas State Chemist, has assessed that approximately 200 firms may be affected by the new law and that approximately 80,000 tons of ammonium nitrate and ammonium nitrate material are used in the state. H.B. 2546 requires that the Office of the Texas State Chemist charge a registration fee to cover the cost of implementing this regulation.

Dr. Herrman has also determined that the benefit afforded to the public includes increased regulatory oversight of an important agricultural material (ammonium nitrate) that finds alternate applications as an explosive material used to construct bombs. The principle thrust of this regulation and rules proposed by the Office of the Texas State Chemist is to protect the public from use of ammonium nitrate as explosive material and resulting weapons used against the public. The cost to small business or individuals to comply with this regulation is estimated at $1 per ton of ammonium nitrate fertilizer, which equates to less than 0.5 percent of the product's cost. Fertilizer distributors and producers will benefit from this regulation by ensuring that this important form of nitrogen fertilizer remains available for use by Texas farmers, ranchers, and government entities.

Comments on the proposal may be submitted to Dr. Tim Herrman, State Chemist and Director, Office of the Texas State Chemist, P.O. Box 3160, College Station, Texas 77841-3160; by fax at (979) 845-1389; or by e-mail at tjh@otsc.tamu.edu.

Subchapter A. GENERAL PROVISIONS

4 TAC §65.1

The amendment to §65.1 is proposed under the Texas Agriculture Code 63, §63.004 which provides Texas Feed and Fertilizer Control Service with the authority to promulgate rules relating to the distribution of commercial fertilizers.

The Texas Agriculture Code, Chapter 63, the Texas Commercial Fertilizer Control Act, Subchapter I, §§63.151 - 63.157, are affected by the proposed amendment.

§65.1.Definitions

Except where otherwise provided, the terms and definitions adopted by the Association of American Plant Food Control Officials in its last published official publication are adopted by reference as the terms and definitions to control in this part. (The publication is available from the Association of American Plant Food Control Officials.) In addition, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) - (7) (No change.)

(8) Acceptable Forms of Identification--The only acceptable form of identification, to provide personal information for the purchase of ammonium nitrate or ammonium nitrate materials, is U.S. government identification issued by a Federal, state, outlying possession, or local government agency that includes a photograph and an expiration date. These may include a valid U.S. passport, a valid U.S. military identification card, a driver's license or non-driver identification card issued by a state, Federal, outlying possession, or local U.S. government agency.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 9, 2007.

TRD-200702903

Dr. Tim Herrman

State Chemist and Director, OTSC

Texas Feed and Fertilizer Control Service/Office of the Texas State Chemist

Earliest possible date of adoption: August 19, 2007

For further information, please call: (979) 845-1121

Subchapter B. PERMITTING AND REGISTRATION

4 TAC §65.6

The new rule §65.6 is proposed under the Texas Agriculture Code 63, §63.004 which provides Texas Feed and Fertilizer Control Service with the authority to promulgate rules relating to the distribution of commercial fertilizers.

The Texas Agriculture Code, Chapter 63, the Texas Commercial Fertilizer Control Act, Subchapter I, §§63.151 - 63.157, are affected by the proposed new rule.

§65.6.Distribution of Ammonium Nitrate or Ammonium Nitrate Material.

(a) Registration for ammonium nitrate or ammonium nitrate material: In addition to a permit to manufacture or distribute fertilizer and a registration for commercial fertilizer, as required in The Agriculture Code, Chapter 63, §63.031, an additional registration must be obtained to offer for sale or sell ammonium nitrate or ammonium nitrate material. The registration must be renewed on forms prescribed by the Service at the beginning of each fiscal year and accompanied by the fee specified on the form.

(b) Refusal to sell: The sale of ammonium nitrate or ammonium nitrate material may be refused to any person attempting to purchase under unusual patterns or circumstances, such as, out of season, outside their normal purchasing area, a person that is unknown to the registered facility or to a person that lacks clear knowledge of the use of ammonium nitrate or ammonium nitrate material for agronomic purposes.

(c) Training and Documentation: Employees of facilities that are registered to offer for sale or sell ammonium nitrate or ammonium nitrate material must be trained in the law, rules, policies, and procedures for the sale of ammonium nitrate and documentation of the training maintained on-site.