STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA AGRICULTURAL RESEARCH )
INSTITUTE, a Florida Corporation, ) et al., )
)
Petitioner, )
)
vs. ) CASE NO. 80-2008RX
) FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )
)
Respondent. )
) FLORIDA AGRICULTURAL RESEARCH )
INSTITUTE, a Florida corporation, ) et al., )
)
Petitioner, )
)
vs. ) CASE NO. 81-333RP
) FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )
)
Respondent. )
)
FINAL ORDER
A hearing was held in the above captioned cases, after due notice, at Tampa, Florida on April 20-21, 1981, and at Tallahassee, Florida on April 29, 1981, before the undersigned Hearing Officer.
APPEARANCES
For Petitioners: Edward P. de la Parte, Jr. and
Kenneth E. Apgar, Esquires de la Parte and Butler, P.A. 705 East Kennedy Boulevard Tampa, Florida 33602
For Respondent: Frank Graham, Esquire
Resident Counsel Department of Agriculture
and Consumer Services Mayo Building
Tallahassee, Florida 32301
In this proceeding, Petitioners seek an administrative determination of the validity of certain of Respondent's rules contained in Chapter 5E-1, Florida
Administrative Code, and alleged rules in the form of policy statements contained in four of Respondent's fertilizer bulletins.
In DOAH Case No. 80-2008R, filed October 27, 1980, Petitioners challenge Rules 5E-1.09(1), (2)(a), (2)(b), (2)(c), Rule 5E-1.10, and Rule 5E-1.11(1) and
, F.A.C., pursuant to Section 120.56, Florida Statutes. The challenged rules were promulgated by Respondent pursuant to Chapter 576, Florida Statutes (1979), and concern methods and tools used by Respondent for sampling commercial fertilizer, requests by consumers for sampling of bulk mixed fertilizer, and sampling tolerances. The aforesaid rules are alleged to constitute an invalid exercise of delegated legislative authority because they exceed Respondent's authority to adopt such rules, are not appropriate to the ends specified in Chapter 576, are not reasonably related to the purpose of the said chapter, or are arbitrary or capricious.
The same Petitioners filed their petition in DOAH Case No. 81-333R on February 19, 1981 alleging that Respondent's Fertilizer Bulletins Nos. S-1, F-1, P-2, and D-1 constitute rules which are invalid because they have never been formally adopted as rules pursuant to Section 120.54, Florida Statutes.
Petitioners predicate their allegations that the bulletins are rules upon the contention that they are written policy statements regulating commercial fertilizer which implement and interpret the provisions of Chapter 576, Florida Statutes.
Although Case No. 80-2008R was scheduled for final hearing on December 8, 1980, pursuant to a joint motion and stipulation of the parties the hearing was rescheduled for February 3, 1981. The case was further continued at the request of the parties until April 20-21, 1981.
Upon filing the petition in Case No. 81-333R, Petitioners moved to consolidate the two cases and the motion was granted by Order, dated March 4, 1981.
At the commencement of the hearing, the following matters were addressed by the parties:
Petitioner Agrico Chemical Company moved that it be dismissed as a party to the proceeding. The motion was granted.
Petitioners withdrew their challenge to Rule 1.10, Florida Administrative Code.
Respondent conceded that the fertilizer bulletins that are the subject of Case 81-333R constitute unpromulgated rules, except for Section VI of Fertilizer Bulletin S-1 entitled "Submission of Sample and Reports", and Bulletin P-2 which lists approved fertilizer establishments. Respondent announced its intention to initiate rule making proceedings with regard to the bulletins as soon as possible. Petitioners stipulated that Bulletin P-2 was not a rule, but reserved the question of Section VI of Bulletin S-1 for determination in this proceeding. There was some confusion as to the particular portion of Bulletin S-1 reserved for adjudication. Respondent erroneously referred to it as Section IV, but stated the title as being "Submission of Samples and Reports". Petitioner misconstrued it also and their posthearing brief refers to Section V entitled "Preparation of Sample for Shipment" as being in dispute. It is determined that Section VI is the portion to be addressed in this case (See Exhibit 5 and p 10, TR.)
The parties stipulated that the 1976 study of official sampling techniques for bulk fertilizer in the State of Florida prepared by Arthur D. Little, Inc. for the Florida Agricultural Research Institute was based on sampling tests conducted by Thornton Laboratories, Inc., and that the forty samples used in the study were taken by Respondent's inspectors in accordance with standard procedures. (Exhibit 47)
Sixty exhibits were admitted in evidence at the hearing. Exhibit 54 was rejected as irrelevant to the issues under consideration. The parties stipulated as to the authenticity of the remaining exhibits. (Hearing Officer's Exhibits 1 and 2)
Petitioners published Respondent's Answers to Interrogatories 12-14, 16, 18, and 20, and Respondent's answers to Petitioners' Request for Admissions Nos. 1-3, 8-9, 12-14, 22-25, 27-31, 34-36, 38, 41-42, and 44-46. (Hearing Officer's
Exhibits 3-4)
Proposed Recommended Orders filed by the parties subsequent to the hearing have been fully considered and those portions thereof which have not been adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in law or fact, and are specifically rejected.
At the conclusion of the hearing, the parties agreed that the time for entry of the final order herein would be extended to on or before June 30, 1981.
FINDINGS OF FACT
Petitioners consist of the Florida Agricultural Research Institute (FARI) and thirty firms engaged in the business of manufacturing or distributing various brands and grades of commercial fertilizer in Florida. FARI is a non- profit corporation that serves primarily as an agricultural industry representative, including producers and distributors of commercial fertilizers. One of its representatives currently serves on the State Fertilizer Technical Council. Each of the petitioning firms has registered commercial fertilizers with Respondent, either as a manufacturer or dealer. Respondent has assessed penalties against the firms in the past for deficiencies in the fertilizer plant nutrients pursuant to Rule 5E-1.11, F.A.C., as a result of sampling and analysis of fertilizer produced or distributed by the petitioning firms. (Hearing Officer's Exhibit 4)
Respondent's Division of Inspection performs the function of sampling commercial fertilizer sold or offered for sale within Florida under the provisions of Chapter 576, Florida Statutes, and rules adopted by the Department. Fertilizer samples are taken either at an approved plant or in the "field" by Division Inspectors utilizing standard procedures set forth in Respondent's rules and fertilizer bulletins. The samples are then analyzed by Respondent's Division of Chemistry to determine if the fertilizer is deficient in percentages of plant nutrients specified in its registration below applicable tolerances. If so, penalties are assessed which are payable by the seller to the consumer. (Testimony of Giglio, Exhibit 1, 5, Hearing Officer's Exhibit 4)
Prior to 1971, official samples of bulk mixed fertilizer manufactured in an approved plant could only be taken from the belt at the plant with tools authorized by then existing rules. Dissatisfaction with the accuracy of sampling methods using different sampling tools had led to the adoption in 1957 of procedures whereby sampling was conducted at fertilizer plants using what is known as a belt discharge cup which is passed through the stream of fertilizer
coming off a conveyer belt a number of times to obtain a required amount of sample from the fertilizer lot being tested. If belt discharge sampling was not possible, the sample was drawn from the belt by cutting across the moving stream of fertilizer with a scoop or similar instrument. When neither of the foregoing types of sampling was possible, samples were drawn from trucks, in a sufficient number of "probes" to provide a representative sample. The probe was also used for sampling bagged goods. However, sampling in the "field" was restricted to bagged fertilizer.
By 1965, the sampling methods had remained substantially the same. Samples of fertilizer manufactured by plants not suitably equipped for plant sampling and from out of state manufacturers were drawn in the "field" at various farms and groves of consumers. An "in-house" controversy between Respondent's Inspection and Chemistry Divisions as to the accuracy of sampling in dealers' bins led to the refusal of the state chemist to issue penalty assessments for products found to be deficient in nutrients after analysis. Also during this period, consumer groups were inquiring of Respondent as to the possibility of field sampling of bulk mixed fertilizer. (Testimony of Giglio, Exhibits 6-22, 49-50)
In February 1971, the Pesticide and Fertilizer Technical Council, a statutory advisory group to Respondent, began consideration of the possibility of field sampling of bulk fertilizer, and appointed an ad hoc committee to study the question of whether greater tolerances for deficiencies in such lots of fertilizer should be adopted. Data obtained from prior studies on fertilizer segregation conducted by Respondent and the fertilizer industry showed that samples taken in the field were found deficient in 18 percent more cases than those samples of the same lots of fertilizer taken at the plant. The committee therefore recommended that existing tolerances be increased for nitrogen, available phosphoric acid, and potash, by factors of 1.4, 1.5 and 1.4 respectively to compensate for the additional error found in field sampling.
The committee reasoned that if the kinds of fertilizer sampled were equivalent, the proposed widened tolerances should be sufficient to protect manufacturers from an increase in penalties from samples taken in the field. However, the committee noted that standard sampling error is influenced by the place of sampling, the tool used, the number of subsamples and the method by which the material is handled from the time it leaves the plant mixer to the point of sampling. (Testimony of Giglio, Wright, Exhibit 23, 25, 60)
At a meeting on March 5, 1971, the Technical Council approved proposed amendments to Respondent's Rule 5E-1.09 to provide that official samples of bulk mixed fertilizer manufactured in a plant approved for belt or belt discharge sampling could be taken where found from the delivery vehicle or when requested by the consumer, providing an official sample had not previously been collected at the plant. It also approved a proposed amendment to Rule 5E-1.11 to provide the larger tolerances for bulk mixed fertilizer sampled in the field, as recommended by the ad hoc committee. During discussion leading to the Council's action, representatives of the fertilizer industry recommended that research be conducted on sampling methods prior to changing the regulations. (Testimony of Giglio, Perrin, Exhibit 24)
In the spring of 1971, Respondent conducted studies to determine the most accurate tool to utilize for the purposes of field sampling of bulk- fertilizers. It was found that field samples collected with a tool called the "Missouri D Tube" more closely approached results of official samples taken by belt sampling than did those drawn with the currently used Indiana Probe. The study indicated that belt sampling was more reliable and that the proposed
expanded tolerance table to be applied when bulk samples were drawn from the field would not compensate for the apparent increased bias in field sampling. Thereafter, the Division of Inspections recommended to the Commissioner of Agriculture that the Missouri D Probe be accepted as the most accurate sampling tool. That recommendation and the recommendation of the Technical Council were accepted by the Commissioner of Agriculture, and thereafter Rules 5E-1.09 and 5E-1.11 were amended accordingly on October 1, 1971. (Testimony of Giglio, Wright, Warren, Exhibits 1, 26, 29)
Penalties assessed against fertilizer producers pursuant to Rule 5E- 1.11(2), F.A.C., from July 1, 1979 through March 31, 1980, were in the total amount of $556,482.22. In the prior three years of 1976, 1977, and 1978, penalties were assessed in amounts exceeding $415,000, $379,000, and $394,000 respectively. (Hearing Officer's Exhibit 3)
In 1973, FARI informed the Commissioner of Agriculture that it had initiated an extensive research project on fertilizer sampling to be accomplished under the supervision of Arthur D. Little, Inc., and the cooperation and participation of Respondent in the study were solicited. After an extensive exchange of correspondence between FARI and Commissioner Doyle Conner, the latter agreed to cooperate in the study, and thereafter during 1974- 75, fertilizer samples were taken by state inspectors from several Florida plants in accordance with state sampling methods, and thereafter analyzed statistically to determine the accuracy and reliability of Respondent's sampling methods and tolerance allowances. The study addressed the present day applicability of Respondent's method of bulk discharge sampling and of sampling bulk fertilizer in the field, together with the effects of "coning" on field sampling, and the extent of any sampling variation due to "riffling."
(Testimony of Giglio, Wood, Exhibits 30-45, 47, 52-53)
The results of the FARI study were published in 1976. Statistical analysis of the samples produced the following reported major conclusions:
Samples taken from belt discharge without riffling showed a small sampling variation whereas riffling of such samples produced significant sampling variations.
Use of the Missouri D Probe in field sampling produced large variations in sampling error. It was found that approximately one-half of the samples of "on-grade" bulk mixed fertilizer would be found deficient under state tolerance tables.
Bias between belt discharge and bulk field samples was significant for nitrogen and potash.
"Unconing" (a method by which a flexible chute is used to evenly distribute bulk mixed fertilizer into bins or receiving vehicles to avoid a coned pile of fertilizer) reduces but does not eliminate absolute differences between the averages of plant and field samples.
Florida official tolerances on official fertilizer guarantees need "some revision" to be consistent with current sampling practices and limitations, especially in regard to riffling.
The statistical expert who designed the study whereby 300 samples were taken from 42 lots of fertilizer found that 90 percent of sampling variance from belt samples taken at the plants was due to riffling of the samples at the plant
and again at the testing laboratory. Riffling is a procedure by which a number of samples are reduced in amount to smaller samples by pouring the samples through a "riffle" which is a device designed to divide or "split" samples into representative halves. The expert is of the opinion that by the use of good sampling methods, only 1 in 1,000 samples of an "on-grade" product should be found deficient under tolerance tables. "Deconing" of bulk fertilizer is not a common practice of the fertilizer industry. (Testimony of Thornton, Glocker, Crisp, Wright, Exhibits 47-48, 56)
a. Respondent is required by statute to use the officially adopted methods and terminology of the Association of Official Analytical Chemists (AOAC) in drawing any official samples and, in cases not covered by such methods, Respondent is obliged to adopt and publish "appropriate" methods and terminology. The official methods of analysis of the AOAC (1975 Ed.) as to solid fertilizers in Section 2.001, provide for the use of the Missouri D Probe in the sampling of bulk fertilizer by drawing ten vertical cores distributed in a specific concentric sampling pattern. Respondent's Rule 5D-1.09(1)(c) also provides for use of the Missouri D Probe in taking official field samples of bulk mixed fertilizer, and sub-paragraph (2)(c)1 of the rule requires that such samples be collected in accordance with recommendations of the AOAC. The AOAC sampling pattern is not shown in the rule, but is set forth in Respondent's Fertilizer Bulletin No. 5-1.
Paragraph 2.001 of the AOAC official methods of analysis also provides for sampling of bulk fertilizer at time of loading by passing a specified sampling cup through the stream of material as it drops from the belt or chute to assure ten equal time spaced passes during a continuous flow of fertilizer for three minutes. Respondent has adopted the use of such a cup in Rule 5E-1.09(2)(b), together with a varying number of core samples based on the lot size in tons. Fertilizer Bulletin No. S-1 specifies the manner of passing the cup through the stream as often as necessary to obtain the required number of cores for the tonnage to be represented by the sample. Seminars periodically conducted by Respondent for its inspectors amplify the procedures specified in rules and bulletins. Additionally, new inspectors receive field training in procedures to be utilized in taking samples.
Section 2.001 of the AOAC official methods of analysis provides that bagged fertilizer shall be sampled by laying the bag horizontally and removing a core diagonally from end to end with a slotted single or double tube trier (probe) of about the approximate length of the filled bag which is being sampled. Respondent's Rule 5E-1.09(1)(d) provides for the use of the large Indiana Probe in taking official samples of bag mixed fertilizer. Information regarding the placement of the bag and manner of using the probe is contained in Fertilizer Bulletin S-1 and conforms to the AOAC methods.
Section 2.001(c) of the AOAC official methods of analysis provides that a composite sample should be placed in an airtight container and the entire sample delivered to the laboratory where it is reduced by use of a riffle. Although Respondent's Rule 5E-1.09 does not provide for riffling of a sample taken at the plant or in the field, its Fertilizer Bulletin No. S-1 requires that samples consisting of more than one gallon will be divided by use of a riffle and procedures for riffling are explained.
In the sampling of bulk fertilizer using the Missouri D Probe, Respondent's inspectors often are required to use a hammer or mallet to drive the probe into hardened fertilizer. This procedure is not mentioned in either the AOAC official methods or in Respondent's rules or bulletins. However, the
recommended sampling procedures of The Fertilizer Institute, a trade organization of the fertilizer manufacturers, and of the Association of American Plant Food Control Officials (AAPFCO), an organization primarily composed of state regulators for the promotion of uniform regulations in the agricultural field, state that the Missouri D Tube is the best manual probe available for sampling a car of fertilizer because it can be driven into the settled mass of fertilizer. Use of the hammer is considered acceptable as long as the load is penetrated vertically and the fertilizer pattern is not disturbed. (Testimony of Giglio, Jackson, Rund, Perrin, Exhibits 1, 5, 27-28, 56)
Respondent's Fertilizer Bulletin No. P-2, dated February 9, 1979, contains a list of Florida fertilizer mixing plants and the agricultural inspectors assigned thereto. Fertilizer Bulletin No. D-1, dated December 3, 1974, consists of a directive to inspectors regarding stop-sale procedure on deficient lots of fertilizer found in manufacturers' or dealers' warehouses. Respondent's Fertilizer Bulletin No. F-1, dated December 3, 1974, is a letter to fertilizer and pesticide inspectors stating standards for the construction and equipment of fertilizer sampling facilities at plants. Fertilizer bulletins are updated periodically and approved by the Respondent's Director, Division of Inspections. (Testimony of Crisp, Exhibits 2-4)
It is acknowledged both in governmental circles and in the fertilizer industry that the Missouri D Probe is the most satisfactory tool for sampling bulk fertilizer other than from the belt in the plant. If fertilizer is not permitted to cone, the tool achieves acceptable results. Most of the fertilizer produced today is of a mixed type which is a combination of granular and non- granular material. Granular material is when all three of the primary nutrients are contained in a single particle or pellet. As a consequence of such a non- homogenous mixture, fertilizer "cones" when it is poured into a truck, bin, or other receiving vehicle. In such instances, the larger particles fall away to the sides and she smaller particles remain in the middle. Thus, it is difficult to obtain representative samples of the entire lot of fertilizer. Although Section 576.055, F.S., provides that Respondent may adopt rules requiring fertilizer manufacturers to incorporate specified procedures designed to avoid coning during the loading of bulk mix fertilizer into vehicles to reduce separation and segregation of components, such rules must be the official method and terminology of the AOAC or other "such nationally recognized testing authorities." Neither the AOAC nor any other nationally recognized testing authority has prescribed official methods for deconing, and therefore Respondent has not been able to adopt rules on the subject. The Fertilizer Institute recognizes the problem of coning and segregation of materials, and recommends in its Quality Control Manual that the industry utilize the anti-segregation devices such as spreading the material by use of a large grain shovel or allowing it to flow into a truck through a telescoping flexible spout, or large truck tire tube being manually moved about the truck. Receiving vehicles, such as compartmented "Killebrew" trailers are owned both by producers and Consumers. Even if unconed at the plant, segregation can recur during transport of fertilizer to the site of eventual use. (Testimony of Giglio, Wood, Perrin, Exhibit 56)
Respondent's Rule 5E-1.11 contains two tolerance tables for nitrogen, available phosphoric acid, potash, and nitrogen breakdown. Tolerance Table II applies to bulk mixed fertilizer samples collected in the field, and Tolerance Table I applies to all other official samples. Penalties are assessed if any of the plant nutrients are found below the tolerances, unless compensable. The tolerances constitute an allowance for inherent variations in samples which are arrived at by determining standard sampling error. The enlarged tolerances for
field samples recognize that error occurs more frequently in such instances than samples obtained at the plant. Although the AOAC does not specify tolerances, the AAPFCO has recommended tolerances which are termed "investigational allowances" and closely parallel Respondent's Tolerance Table II. Such tolerances normally would find only 1 out of 100 lots to be deficient when the lots actually meet the guaranteed analysis. However, the association's allowances do not change at "step" levels as do those in Respondent's Tolerance Table II. Thus, Table II can be inaccurate to a degree upward or downward, depending upon the nutrient percentage level guaranteed by the producer. As a result, statistical experts are of the opinion that both of Respondent's tolerance tables need revision to lessen the present discrepancies brought about by the "step" system. (Testimony of Rund, Zahn, Exhibits 1, 47, 51, 55, 57)
Machinery and equipment used by fertilizer processors is basically the same as it was some twenty to thirty years ago. Although fertilizer firms generally have quality control programs as to accuracy of scales, timing of ingredient flow while mixing, and preventive maintenance procedures, they do not uniformly use devices such as flexible spouts or hoses to avoid coning and consequent segregation of fertilizer when loading receiving vehicles. Although use of granulated fertilizer with uniform particle size would eliminate the problem of segregation, it is more expensive to produce and results in customer resistance. Most fertilizers are mixed upon customer preference and, in some instances, as many as 2500 varieties of mixtures are available in Florida on request. These amounts are not significantly different from those of other states. (Testimony of Wood, Ray, Thornton, Crisp, Perrin)
A representative of the Florida Farm Bureau Federation and several farmers who testified at the hearing are desirous of maintaining field sampling in order to ensure that purchasers receive the blend of fertilizer which they order from the producer. (Testimony of Cockrell, Lindsay, Ray)
CONCLUSIONS OF LAW
These consolidated cases challenging portions of Respondent's existing rules and purported rules in the form of Fertilizer Bulletins have been filed under the provisions of Section 120.56, Florida Statutes. No issue has been raised as to standing of Petitioners or other jurisdictional matters.
The challenged rules appear in Chapter 5E-1, Florida Administrative Code, under the title "Fertilizer." As heretofore stated, Petitioners withdrew their challenge to Rule 5E-1.10, which left for challenge Rules 5E-1.09(1), (2)(a), (b), (c), and Rule 5E-1.11(1) and (2), F.A.C. However, Petitioners only presented evidence and placed in issue at the hearing certain aspects of the challenged rules. Those portions in controversy or which must be recited in order to determine Respondent's compliance with applicable provisions of Chapter 576, Florida Statutes, are set forth as follows:
5E-1.09 Sampling.
SAMPLING TOOLS -- The following shall be the official sampling tools for taking samples of mixed fertilizer and fertilizer material in Florida:
Modified Belt Discharge Cup. (Opening 7/8" x 10", capacity approximately six pints.) To be used in taking official samples of a mixed fertilizer or a fertilizer material from
a belt discharge at in-state establishments which have been approved for such sampling by a representative of the department.
Modified Belt Sampler. (Opening 1" x 7", curved base, capacity approximately six pints.) To be used in taking official samples of a mixed fertilizer or a fertilizer material from top of belt at in-state establishments which have been approved for such sampling by a representative of the department.
Missouri "D" Probe. (52" long, 1" I.D., 1-1/4" O.D., double probe, single 45" compartment.) To be used in taking official field samples of bulk mixed fertilizer.
Large Indiana Probe. (Open, 1" slot, solid tip, 1-1/8" I.D.) To be used in taking official samples of bagged mixed fertilizer and bagged or bulk fertilizer material. The large Indiana probe shall be used in cases where other official sampling tools are not practicable, as determined by the department through its authorized representative.
SAMPLING METHODS.
Dry Bagged Mixed Fertilizer and Dry Bagged or Dry Bulk Fertilizer Material.
Bagged Mixed Fertilizer: May be sampled wherever found. The official tool for sampling shall be the large Indiana probe and the sample size shall be according to the schedule listed hereunder.
LOT SIZE IN TONS NO OF CORES
Less than 1 thru 1 10
Greater than 1 thru 2 12
Greater than 2 thru 4 14
Greater than 4 thru 6 16
Greater than 6 thru 8 18
Greater than 8 thru 10 20
Greater than 10 thru 14 22
Greater than 14 thru 18 24
Greater than 18 thru 24 26
Greater than 24 thru 32 28
Greater than 32 30
Dry Bagged or Dry Bulk Fertilizer Material: May be sampled wherever found. The official tool for sampling shall be the large or small Indiana probe according to the schedule listed under 5E-1.09(2)(a)(1); except that dry bulk fertilizer material sampled with a modified belt discharge cup or modified belt sampler shall be sampled according to the schedule listed in 5E-1.09(2)(b)(1)
Small Package Dry Mixed Fertilizer or Dry Fertilizer Material in Packages of 25 Pounds or Less: when it is not practical to sample these fertilizers according to subsection (1) or (2), one unbroken package shall constitute the official sample.
Dry Bulk Mixed Fertilizer or Dry Bulk Fertilizer Materials Sampled from a Belt or Discharge at an Approved in-state Establishment.
1. Official samples shall be taken with a modified belt discharge cup or a modified belt sampler. The official sample size shall be according to the following schedule:
LOT SIZE IN TONS | NO. | OF | CORES |
Less than 1 thru 2 | 5 | ||
Greater than 2 thru 3 | 6 | ||
Greater than 3 thru 5 | 7 | ||
Greater than 5 thru 7 | 8 | ||
Greater than 7 thru 9 | 9 | ||
Greater than 9 thru 11 | 10 | ||
Greater than 11 thru 15 | 11 | ||
Greater than 15 thru 19 | 12 | ||
Greater than 19 thru 25 | 13 | ||
Greater than 25 thru 32 | 14 | ||
Greater than 32 | 15 |
This method will be utilized at in-state establishments which provide the necessary cooperation and suitable and safe facilities, as determined and approved by a representative of the department, for sampling bulk mixed fertilizer from belt or belt discharge to be delivered directly to consumer.
Field Sampling of Dry Bulk Mixed Fertilizer.
5E-1.11 Tolerances and penalties.
(1) TOLERANCES -- Tolerance I will apply to all official samples except bulk mixed fertilizer samples collected in the field. Tolerance II will apply to bulk mixed fertilizer samples collected in the field.
Total nitrogen
Range (percent) | Tolerance I (percent) | Tolerance II (percent) |
0-4 | 0.2 | 0.3 |
Over 4-6 | 0.3 | 0.4 |
Over 6-8 | 0.4 | 0.6 |
Over 8-11 | 0.5 | 0.7 |
Over 11-30 | 0.6 | 0.8 |
Over 30 | 0.75 | 1.1 |
Available phosphoric acid
Range (percent) | Tolerance I (percent) | Tolerance II (percent) |
0-10 | 0.4 | 0.6 |
Over 10-25 | 0.5 | 0.8 |
Over 25 | 0.75 | 1.1 |
Potash
Range (percent) | Tolerance I (percent) | Tolerance II (percent) |
0-2 | 0.2 | 0.3 |
Over 2-3 | 0.3 | 0.4 |
Over 3-4 | 0.4 | 0.6 |
Over 4-8 | 0.5 | 0.7 |
Over 8-20 | 0.6 | 0.8 |
Over 20 | 1.0 | 1.4 |
Rule 5E-1.11(2) states methods of assessing penalties if any of the plant nutrients in mixed fertilizer or fertilizer material are found below the tolerances provided in subsection unless compensable. Although the petition challenged this provision because it did not provide for compensation for primary plant nutrients in excess of the applicable tolerances when calculating penalties, no evidence was presented in support of such a proposition and, consequently, Petitioners have failed to carry their burden of proof as to the rule's invalidity.
Petitioners' first contention is that the official sampling methods specified in the challenged rules "no longer have application to present day fertilizer materials, formulations and manufacturing equipment." This general allegation is not supported by the evidence of record. In no instance did Petitioners show that Respondent's sampling methods are not current or that any changes in the composition of fertilizer in itself warrant elimination or modification of present sampling procedures. Although fertilizer producers and suppliers admittedly must provide numerous mixtures requested by consumers which probably was not the practice a number of years ago, this fact does not bear directly on sampling methods. Testimony of industry representatives shows that manufacturing equipment has not changed in any significant degree over the last twenty to thirty years.
The next contention of Petitioners is that sampling of bulk fertilizer in the field creates such a high degree of inherent error as to make the results of analysis totally unreliable. The study conducted by Petitioner FARI concluded that use of the Missouri D probe in field sampling produced a high degree of error when compared with plant belt samples. The difference in results can be attributed to some extent to the fact that field samples are generally taken from a coned pile of fertilizer in receiving vehicles which causes irregular distribution or segregation of the irregularly sized fertilizer particles. The FARI study indicated that if the producer "uncones" the fertilizer by evenly distributing the material into receiving vehicles, the difference between averages of plant and field samples is somewhat reduced. Therefore, to some degree, the failure of the producers to customarily use a method of loading to prevent coning contributes to the inaccuracy of field sampling. However, even if unconed at the plant, segregation can occur again during transport of the material to farms. Transport vehicles are variously
owned by producers or consumers. In any event, Respondent has established additional tolerances in its rules applicable to bulk mixed fertilizer samples collected in the field. Further, Respondent uses standard procedures of the AOAC in taking field samples, as required by Section 576.051(7) F.S., including the use of the Missouri D probe. The suggestion by Petitioners that Florida soils are "unique," and that therefore AOAC methods of sampling may not be appropriate in the state, is insufficiently supported by the evidence.
Petitioners further assert that Rule 5E-1.11(1) is invalid because the tolerances set forth in the rule do not completely encompass the variation of plant nutrient percentages attributable to the statistical error inherent in the official sampling, and laboratory procedures specified in Rule 5E-1.09, because such error causes the tolerances set out in the rule to be exceeded on a regular basis and thus permits penalties to be imposed solely for sampling error. At the hearing, Petitioners primarily restricted their attack to Tolerance Table II which is applied to field sampling. The evidence adduced at the hearing shows that the tolerance table does not accurately reflect the variation of nutrient percentages attributable to the statistical error produced in field sampling, in part due to the fact that a tolerance percentage is not provided for each percentage of the guaranteed plant ingredients. Therefore, as heretofore found, the tolerance "steps" at a limited number of percentage ranges are inaccurate to some degree upward or downward, and favor either the consumer or producer at the extremes of the table. Indeed, it was acknowledged by Respondent's expert statistician that both tables need revision to lessen the present discrepancies brought about by the "step" system. Respondent's counsel acknowledged at the hearing that rule-making proceedings leading to revision of the tolerances might be advisable.
Petitioners alleged in their petition that the above recited alleged infirmities in Respondent's rules rendered them invalid as exceeding the agency's authority to adopt rules, as not being appropriate to the ends specified in Chapter 576 or reasonably related thereto, or as being arbitrary or capricious. Based on the evidence presented, it is concluded that Petitioners' contentions have not been established. Section 576.181, F.S., provides Respondent's rule-making authority as follows:
576.181 Administration: rules; procedure--
This chapter and all rules and regulations adopted and promulgated hereunder shall be administered and enforced by the department.
The department is authorized by rule, to implement, make specific and interpret the provisions of this chapter, and specifically to determine the composition and uses of commercial fertilizer as defined in this chapter, including, without limiting the foregoing general terms, the taking and handling of samples, the establishment of tolerances, deficiencies, and penalties where
not specifically provided for in this chapter; . . .
Section 576.021 requires registration of each commercial fertilizer before being offered for sale or sold in the state to include, inter alia, information as to the guaranteed analysis of the product. Section 576.051 provides for sampling in the following terms:
576.051 Inspection, sampling, analysis.--
(2) The department or its agent, is authorized and directed to sample, test, inspect, and make analysis of commercial fertilizer sold or offered for sale within this state within the provisions of this law and rules adopted hereunder, at time and place and to such an extent as it may deem necessary to determine whether such commercial fertilizers are in compliance with the provisions of this law.
(7) In drawing any official sample and in making any analysis, the officially adopted methods and terminology of the Association of Official Analytical Chemists shall be used. In cases not covered by such officially adopted methods and terminology, the department shall, as soon as practicable, adopt and publish appropriate methods and terminology. In any instance in which the officially adopted methods and terminology of the Association of Official and Analytical Chemists are not applicable to conditions,
circumstances, or cases in the state, then the department shall, with the approval of the Technical Council, adopt by regulation methods and terminology which shall be official in the state.
Section 576.061, F.S., provides that tolerances "shall be set by the Department" in technical rules and regulations, and prescribes the method of assessing penalties against producers under specified circumstances for deficiencies in guaranteed plant nutrients.
The evidence adduced at the hearing clearly shows that Respondent's rules provide reasonable and logical interpretations of the above statutory provisions, do not exceed delegated authority, or constitute arbitrary or capricious agency action. The rules in question properly conform to the "officially adopted methods and terminology of the Association of Official Analytical Chemists", as mandated by subsection 576.051(7), F.S. Although certain of the AOAC sampling procedures, such as sampling patterns and bag sampling directions, have not been included in the challenged rules, they are substantially set forth in Respondent's fertilizer bulletins. The mere fact that the existing rules do not presently contain all of the details as to methods officially utilized does not provide a basis for declaring the rules themselves invalid. However, as noted previously, Respondent has conceded that certain of the AOAC and other currently used methods which are set forth in its fertilizer bulletins properly should be the subject of rule amendment proceedings to incorporate such procedures.
The fact that the Missouri D probe may not be a completely satisfactory tool for use in taking field samples of bulk mixed fertilizer does not constitute adequate grounds for discontinuing its use and invalidating Respondent's Rule 5E-1.09(1)(c). The evidence showed that the tool is the one recognized by the AOAC for such use and that no better tool exists in the field
of fertilizer sampling at the present time. Petitioners' claim that Respondent is restricted to adoption of the AOAC methods in effect at the time Section 576.051(7) was enacted in 1966 (thus not permitting use of the Missouri D probe which was adopted by AOAC in 1967) is considered unwarranted. The statute does not so restrict Respondent and the cases cited by Petitioners are deemed inapplicable.
As to those provisions of Rule 5E-1.09(1)(a) and (b) concerning sampling from belt discharges, Petitioners acknowledged that the use of the belt discharge cup, as specified in the rules and in the AOAC procedures, is the best method of sampling. They merely object to Respondent's practice of "riffling" the samples after they have been taken from the belt. The "riffling" procedure is not presently referred to in the AOAC method of taking bulk samples, nor is it contained in Respondent's rules. Rather, it is incorporated into a fertilizer bulletin and will be discussed further below.
As to the tolerance tables set forth in Rule 5E-1.11(1) Section 576.061, F.S., merely requires that tolerances be established by Respondent in its rules and regulations, but does not prescribe the specific tolerances to be utilized. Although it is true, as previously indicated, that the tables do not completely and accurately reflect the variances in sampling errors between belt and field sampling, they have not been shown to be so inaccurate as to constitute arbitrary or capricious action on the part of Respondent. Respondent based Tolerance Table II on the recommendations of the Fertilizer Technical Council which were in turn based on the findings of its ad hoc committee. Sufficient evidence was presented to show that the allowances were based on appropriate study and consideration. As acknowledged by the Respondent, refinement of the tolerance percentages appropriately could be the subject of further rule-making proceedings with a view to eventual amendment of the rule provision in question.
The validity of regulations normally will be sustained so long as they are reasonably related to the purpose of the enabling legislation and are not arbitrary or capricious. Florida Beverage Corporation v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975), Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), Jax Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, et al., 388 So.2d 1306 (Fla. 1st DCA 1980), Eli Witt v. Department of Business Regulation, 388 So.2d 1340 (Fla. 1st DCA 1980). In Agrico, the Court stated:
"A capricious action is one which is taken without thought or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. . .
The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious is a stringent one indeed. . .
Here, Petitioners have not succeeded in meeting their "stringent" burden.
In case No. 81-333R, petitioners have challenged certain of Respondent's fertilizer bulletins as being written policy statements concerning its regulation of commercial fertilizer which constitute rules that were not promulgated pursuant to Chapter 120, Florida Statutes. Petitioners thus claim that they represent an invalid exercise of delegated legislative authority. The
policies in question are contained in Fertilizer Bulletins Nos. S-1, F-1, P-2, and D-1. Generally, they supplement the fertilizer sampling methods and procedures contained in Rule 5E-1.09, including such matters as the definition of the term "lot", methods of taking belt and field samples, riffling of belt samples, sampling patterns, identification of agency forms used in taking samples, procedure for preparing samples for shipments to the State laboratory for analysis, criteria for construction of fertilizer sampling rooms at plants, lists of fertilizer mixing plants in Florida, and stop sale procedures. As heretofore stated, Respondent conceded at the commencement of the hearing that all of the fertilizer bulletins in question constitute unpromulgated rules, except for Section VI of Fertilizer Bulletin S-1, entitled "Submission of Samples and Reports", and Bulletin P-2, which lists approved fertilizer establishments. Petitioners stipulated that Bulletin P-2 was not a rule, but reserved the question of Section VI of Bulletin S-1 for determination in this proceeding. Accordingly, with that exception, the parties have agreed that the aforesaid bulletins constitute an invalid exercise of delegated legislative authority because they were not promulgated in accordance with the procedures of Chapter 120, F.S. It is therefore unnecessary to arrive at conclusions concerning the merits of the contents of the various bulletins.
Section VI of Fertilizer Bulletin S-I contains information as to the manner in which fertilizer samples are marked, and tags attached containing appropriate information for identification. No evidence was presented at the hearing by Petitioners contesting this particular provision, and it is deemed to constitute internal management memoranda which does not affect the substantial interests of any person or any plan or procedure important to the public, as defined in Section 120.52 (14)(a), and which constitutes matters not properly embraced by the definition of a "rule."
In view of the foregoing findings of fact and conclusions of law, it is hereby determined and ORDERED:
Case No. 80-2008R: That Petitioners have not established that Respondent's Rules 5E-1.09(1), (2)(a), (b), and 5E-1.11(1) and(2), Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.
Case No. 81-333R: (1) That Respondent's Fertilizer Bulletins Nos. S-1, F-1, and D-1 were not promulgated according to the rule-making procedures of Chapter 120, Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority, except for Section VI of Fertilizer Bulletin S-1.
(2) That Respondent's Fertilizer Bulletin P-2 does not constitute a rule.
DONE and ORDERED this 30th day of June, 1981, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1981.
COPIES FURNISHED:
Edward P. de la Parte, Jr.
and Kenneth E. Apgar, Esquires de la Parte and Butler, P.A.
705 East Kennedy Boulevard Tampa, Florida 33602
Frank Graham, Esquire Resident Counsel Department of Agriculture
and Consumer Services Mayo Building
Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32301
Liz Cloud, Chief
Bureau of Administrative Code 1804 Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 30, 1981 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 30, 1981 | DOAH Final Order | Challenged rules are not invalid and the challenged fertilizer bulletins are in most respects unpromulgated and invalid rules. |
