Proposed Rule Readoption: N.J.A.C. 2:70
Authorized By: State Board of Agriculture and Charles
M. Kuperus, Secretary, Department of Agriculture
Authority: N.J.S.A. 4:9-21.1 et seq., specifically
4:9-21.11
Calendar Reference: See Summary below for explanation
of exception to calendar requirement.
Proposal Number: PRN 2005-203
Submit comments by August 5, 2005 to:
Alfred W. Murray, Director
Division of Marketing and Development
NJ Department of Agriculture
PO Box 330
Trenton, NJ 08625-0330
The agency proposal follows:
Summary
Pursuant to N.J.S.A. 52:14B-5.1, the rules in this chapter
are scheduled to expire May 5, 2005. In accordance with N.J.S.A. 52:14B-5.1c,
the submission of this notice of proposal to the Office of Administrative
Law extends that expiration date 180 days to November 1, 2005. The Department
of Agriculture has reviewed these rules and has found them to be necessary,
reasonable and proper for the purposes for which they were promulgated.
N.J.A.C. 2:70 was originally promulgated to (1) protect farmers and consumers
by determining the manufacturer’s compliance with the guaranteed
content of liming materials and (2) to reduce the amount of misbranded
and deficient products offered for sale thereby insuring the quality and
quantity of liming materials and promoting crop yield.
The rules proposed for readoption define materials, and require that manufacturers
provide information on their label of the materials and guaranteed analyses
of their contents. Manufacturers are required to register their products
prior to offering them for sale and to be responsible for fees and for
tonnage inspection reports
As the Department has provided a 60-day comment period for this notice
of proposal, this notice is excepted from the rulemaking calendar requirement,
pursuant to N.J.A.C. 1:30-3.3(a)5.
Social Impact
All consumers of agricultural liming materials will continue
to have protection when deficient liming materials are detected. Manufacturers
will continue to exhibit care in controlling their formulation processes
to avoid a penalty and a possible “stop sale” of deficient
product. The New Jersey Agricultural Liming Material Act, N.J.S.A. 4:9-21.1
et seq., requires lime manufacturers to provide accurate verifiable information
of agricultural liming material so that farmers or consumers can relay
on it. Therefore, these rules proposed for readoption will have a positive
social impact.
Economic Impact
Manufacturers of deficient agricultural liming materials will continue
to be assessed financial penalties for the marketing of such products.
This chapter protects all businesses from unfair competition.
Consumers and distributors of agricultural liming materials are provided
relief from economic loss by the requirement that such materials be properly
labeled. The failure to include correct ingredients in the materials can
effectively burn a crop, damage the soil, and lower crop yield having
an adverse economic effect. These rules have performed, and are expected
to perform a vital role in consumer protection, and this positive economic
impact will continue with the readoption of these rules.
Federal Standard Statement
Executive Order No. 27(1994) and P. L. 1995, c. 65 require
State agencies which adopt, readopt or amend State rules that exceed any
Federal standards or requirements to include in the rulemaking document
a comparison with Federal law. As related to this chapter, the rulemaking
requirements of the Director, Division of Marketing and Development are
dictated by the New Jersey Agricultural Liming Materials Act, N.J.S.A.
4:9-21.1 et seq., and are not subject to any Federal requirements or standards.
Therefore, a Federal standards analysis is not required.
Jobs Impact
It is not anticipated that the rules proposed for readoption will result
in the generation or loss of any jobs.
Agriculture Industry Impact
For the reasons set forth in the Summary, Social and Economic Impact
statements above, the rules proposed for readoption will have a positive
impact on the agriculture industry.
Regulatory Flexibility Analysis
The rules proposed for readoption implement N.J.S.A. 4:9-21.1
and are designed to provide accurate and verifiable information so the
proper amount and type of agricultural liming material is used on any
particular crop and soil.
The Department has registered firms dealing in commercial feeds, fertilizers
and liming material. Many of these are small businesses, as defined under
the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. However, all
farms in New Jersey are small businesses, by virtue of that term’s
definition in the Regulatory Flexibility Act. Further, many consumers
use liming materials.
The Regulatory Flexibility Act makes no explicit provision for weighing
the harm of a rule against one group of small businesses and comparing
it to the benefits given to others. But the intent of the Act seems to
be that the regulatory agency is required to qualify in its analysis the
good and harm that is to be done by a rule to all small businesses. The
question of consumer interest is not addressed in the Regulatory Flexibility
Act; however, the Legislative history of the original and subsequent Agricultural
Liming Materials Act makes manifestly clear that there is intent to protect
the end user of the commodity. The drafting of the Agricultural Liming
Materials Act itself makes clear the benefits that are bestowed by it
are to be applied to that end.
The burdens the law and rules impose upon liming materials manufacturers
are the costs of registration, the cost of complying with the guaranteed
analysis, such monitoring of production which this might require, and
the cost of reporting this information to the consumer via either printing
on the bag or supplying the information in written form with bulk deliveries.
The rules also provide to the consumer information, which is accurate,
useful and necessary to apply liming materials on the basis of the growing
medium needed by the crop, without the necessity of relying upon brand
names, which may or may not in themselves be reliable. There is nothing
in the rules which prohibits anyone from selling the grade of liming material
he or she wishes, as long as label claims set forth are true. The matter
of adulterants is not in question here.
The cost of compliance varies with the number of grades of liming materials
placed on the market. These costs are solely in the hands of the manufacturer
and are solely ones that a manufacturer makes to meet the demands of the
market. The law and rules are designed to provide the freest form of safe,
honest and understandable competition. They are based on the accepted
standards of the Association of American Plant and Food Control Officers,
Inc., whose standards are the basis for the laws and rules of not only
New Jersey, but also most other states. If the burden on the manufacturer
or distributor were lifted, New Jersey manufacturers would be left only
with a New Jersey market and would be given no chance to compete in other
states or countries. Further, every bag of every liming material’s
load would have to be tested by every user to determine if it was desirable
for use on each and every area to be covered.
Competition in the liming materials field would soon become based not
on results but on brand loyalty, which would further deprive the small
manufacturer of the opportunity to compete on merit, requiring them to
match the advertising budget of the large manufacturer, which no small
manufacturer could do.
It is the belief of the Department that the rules provide more benefits
to more small businesses by complying with these rules and law, than they
are hurt by them. They are the minimum necessary to ensure the honest,
understandable trade in the commodity based on the important results deliverable
by the product, not upon brand loyalty. It is, as a result, more economically
advantageous for small business manufacturers to enter and compete in
the market in both New Jersey and the rest of the world.
Lastly, liming materials are one of the key ingredients of modern agriculture
and an important factor in landscaping and gardening.
Therefore, the Department is not able to apply differing or lesser standards
based on business size. While there are compliance and reporting requirements
as set forth above, no capital expenditures or professional services are
necessary.
Smart Growth Impact
The rules proposed for readoption will have no impact on
smart growth or the State Development and Redevelopment Plan.
Full text of the rules proposed for readoption may be
found in the New Jersey Administrative Code at N.J.A.C. 2:70.
Charles M. Kuperus
Secretary, New Jersey Department of Agriculture
April 27, 2005
