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SENATE BILL 214
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Crystal Brantley
AN ACT
RELATING TO THE NEW MEXICO DEPARTMENT OF AGRICULTURE; UPDATING
ACTS OVER WHICH THE DEPARTMENT HAS ADMINISTRATION AND
ENFORCEMENT POWERS AND DUTIES; PROVIDING FOR A STANDARDIZED
ADMINISTRATIVE PENALTY SYSTEM; CONFORMING REGULATION TO CURRENT
STANDARD PRACTICES; DEFINING ADDITIONAL TERMS; INCREASING FEE
AND FINE CAPS; PRESCRIBING PENALTIES; AMENDING, REPEALING,
ENACTING AND RECOMPILING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new Section 76-1-6 NMSA 1978 is enacted to
read:
"76-1-6. [NEW MATERIAL ] ADMINISTRATIVE FINES--SYSTEM OF
PROGRESSIVE PENALTIES--INJUNCTION--CRIMINAL PENALTY.--
A. The board of regents of New Mexico state
university by rule may design a system of administrative
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penalties for the New Mexico department of agriculture to use
to determine the administrative penalty for particular
violations of state laws for which the department is charged
with enforcing and as provided by law. Administrative
penalties may be assessed in lieu of or in addition to other
penalties provided by law. The assessment of penalties shall
take into consideration the nature of the violation; the
frequency of violation; the seriousness of the violation and
its effect on the environment, consumers, industry and economy;
the failure of the licensee or other person to correct the
violation after notice from the department; and the deterrent
effect on future violations.
B. Failure to pay an administrative penalty or take
action to correct a violation may result in suspension or
revocation of licensure or the assessment of three times the
maximum penalty provided by law, or both. The notice of
violation, the time allowed for correction, the possible
suspension or revocation of a license or denial of license
application or renewal, the assessment of a penalty and the
person's right to a hearing shall follow the procedures of the
Administrative Procedures Act. A final agency decision on the
assessment of a penalty is a final agency action and may be
appealed as provided by Section 39-3-1.1 NMSA 1978.
C. Willfully and knowingly or repeatedly refusing
to correct a violation or pay administrative penalties is a
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fourth degree felony and may be punished by a definite term of
up to eighteen months in prison or fine of up to fifteen
thousand dollars ($15,000), or both.
D. In addition to other remedies at law, the New
Mexico department of agriculture may apply for and the court
may grant a temporary or permanent injunction restraining a
person from violating or continuing to violate any of the
provisions of acts and rules promulgated in accordance with
those acts for which the department has administrative and
enforcement powers and duties. The injunction shall be issued
without bond.
E. All administrative penalties shall be deposited
in the state treasury to the credit of the current school fund
as provided in Article 12, Section 4 of the constitution of New
Mexico."
SECTION 2. Section 76-4-1 NMSA 1978 (being Laws 1973,
Chapter 366, Section 1) is amended to read:
"76-4-1. SHORT TITLE.--[This act] Chapter 76, Article 4
NMSA 1978 may be cited as the "Pesticide Control Act"."
SECTION 3. Section 76-4-6 NMSA 1978 (being Laws 1973,
Chapter 366, Section 6) is amended to read:
"76-4-6. REGISTRATION.--
A. Each pesticide or device that is distributed
within the state or delivered for transportation or transported
in intrastate commerce or between points within this state
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through any point outside this state shall be registered with
the department subject to the provisions of the Pesticide
Control Act. However, the registration is not required if a
pesticide is shipped from one plant or warehouse to another
plant or warehouse operated by the same person and used solely
at [such] that plant or warehouse as a constituent part to make
a pesticide [which] that is registered under the provisions of
the Pesticide Control Act.
B. The applicant for registration shall file a
statement with the board [which ] that includes:
(1) the name and address of the applicant and
the name and address of the person whose name will appear on
the label, if other than the applicant's;
(2) the name of the pesticide or device;
(3) other necessary information required for
completion of the application for registration form;
(4) a complete copy of the labeling
accompanying the pesticide or device and a statement of all
claims including the directions and precautions for use; and
(5) the use classification of the pesticide if
required by federal or state regulations.
C. The department, when it deems it necessary in
the administration of the Pesticide Control Act, may require
the submission of the complete formula of any pesticide,
including all ingredients [which ] that will prevent, destroy,
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repel, control or mitigate pests or [which ] that will act as a
plant regulator, defoliant, desiccant or those [which ] that act
as a functioning agent in a spray adjuvant, and all ingredients
[which] that do not perform these functions.
D. The department may require a full description of
the tests made and the results [thereof ] upon which the claims
are based on any pesticide or device or on any pesticide or
device on which restrictions are being considered. In the case
of renewal of registration, the applicant shall be required to
furnish only information [which ] that is different from that
furnished when the pesticide was registered or reregistered
during the previous license year.
E. The board may prescribe other necessary
information by [regulation ] rule.
F. The applicant desiring to register a pesticide
or device shall pay [an annual ] a prescribed [registration ] fee
for each pesticide or device [registered ] submitted for initial
registration or renewal .
G. [Any] A registration approved by the department
and in effect on December 31 of the year for which a renewal
application has been made and the [proper ] renewal fee paid
shall continue in full force [and effect ] until the department
notifies the applicant that the registration has been renewed
or denied in accord with the provisions of the Pesticide
Control Act. Forms for reregistration shall be mailed to
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registrants at least thirty days prior to the due date.
H. If it appears to the department that the
composition of the pesticide warrants the proposed claims for
it and if the pesticide or device and its labeling and other
material submitted comply with the requirements of the
Pesticide Control Act, the department shall register the
pesticide or device.
I. All federal, state and county agencies or
municipalities shall register all pesticides or devices
distributed by them but shall not be required to pay the
registration fee."
SECTION 4. Section 76-4-20 NMSA 1978 (being Laws 1973,
Chapter 366, Section 20, as amended) is amended to read:
"76-4-20. PRIVATE APPLICATORS.--
A. No private applicator shall use a restricted use
pesticide without first complying with the certification
requirements determined by the department as necessary to
prevent unreasonable adverse effects on the environment,
including injury to the applicator or other persons.
B. In determining these certification requirements,
the board shall take into consideration standards of the United
States environmental protection agency. Certification
requirements for a private applicator to be certified to use
restricted use pesticides may include but [shall ] not be
limited to the following:
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(1) the applicant shall acknowledge that [he ]
the applicant understands and will abide by the label
precautions by signing a dealer's pesticide register. The
register shall include the name and address of the private
applicator and other information as prescribed by the
department. The dealer shall keep a record of all restricted
use pesticides distributed to a private applicator;
(2) the applicant shall obtain a user permit
prior to purchase and use of the pesticide. The department may
issue restricted use pesticide permits to private applicators
who have documented the crops, location and acreage on the
permit for the seasonal or temporary period for which their
permit is issued. User permits shall only be issued for
registered or experimental uses and shall be subject to other
limitations as specified by the department. The limitations
may include limiting the areas of use, the timing or method of
application and limiting the amount of the pesticide to that
needed to cover the acreage to be treated;
(3) the applicant shall be required to pass a
written examination demonstrating [his compentency ] competency
with respect to the use and handling of the pesticide or
pesticides covered by [his ] certification prior to purchase and
use of the product. Examination material shall address all
elements stated in category-specific standards of competence in
Sections 171.105, 171.303(a)(1), 171.303(a)(3) and
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171.303(b)(3)(ii)-(iv) of the Code of Federal Regulations ; and
(4) the applicant shall be required to obtain
approval from the department for each application involving a
specific risk to the environment. The applicant shall submit
to the department an application form for a special review
permit. The application shall include detailed information on
the intended use, the responsible person in charge and the
equipment and conditions under which the pesticide application
is to be made. The department in reviewing the application for
a special review permit may require additional restrictions
such as on-site inspection or supervision.
C. The department shall charge the prescribed fee
for each certification.
D. If a private applicator does not qualify, the
department shall inform the applicant in writing.
E. Private applicator certification shall be valid
for a period of not less than three years as established by the
board."
SECTION 5. Section 76-4-22 NMSA 1978 (being Laws 1973,
Chapter 366, Section 22, as amended) is amended to read:
"76-4-22. FEES.--
A. Fees for the registration of pesticides, the
various licenses, inspection of apparatuses and examination of
applicants required by the Pesticide Control Act shall be set
by the board not to exceed the amount authorized below:
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(1) initial application or annual
[registration] renewal fee for each pesticide or device
[registered] not more than. . . . . . . . . . . . .[$150 ] $300;
(2) annual pesticide dealer license for each
location or outlet within the state or, if there is no outlet
in the state, for the principal out-of-state location or
outlet, not more than . . . . . . . . . . . . . . . . . . $100;
(3) annual pest management consultant license,
not more than . . . . . . . . . . . . . . . . . . . . . . $100;
(4) annual commercial pesticide applicator
license, not more than. . . . . . . . . . . . . . . . . . $100;
(5) annual operator license, not more
than . . . . . . . . . . . . . . . . . . . . . . . . . $75.00;
(6) annual noncommercial applicator license,
not more than . . . . . . . . . . . . . . . . . . . . . . $100;
(7) private applicator certification or
renewal, not more than. . . . . . . . . . . . . . . . . $25.00;
(8) additional inspection required to certify
each unit of aircraft, ground or manual equipment that fails to
pass inspection, not more than. . . . . . . . . . . $25.00; and
(9) examination fee for each examination
needed to qualify the applicant as a pest management
consultant, commercial pesticide applicator, noncommercial
applicator or operator or any combination thereof, not more
than. . . . . . . . . . . . . . . . . . . . . . . . . . $20.00.
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B. If the application for the renewal of a
pesticide registration or any annual license provided for in
the Pesticide Control Act is not filed prior to the expiration
date of the prior registration or license, the fee for renewal
of registration or license shall be double the amount specified
in this section and shall be paid by the applicant before the
renewal registration or license is issued. Any person holding
a current valid license may renew the license for the next year
without taking an examination unless the department determines
that additional knowledge relating to the classification for
which the applicant has applied makes a new examination
necessary. However, if the license is not renewed within
thirty days after expiration, the licensee shall be required to
take new certification examinations."
SECTION 6. Section 76-4-23 NMSA 1978 (being Laws 1973,
Chapter 366, Section 23, as amended) is amended to read:
"76-4-23. GROUNDS FOR DENIAL, SUSPENSION OR REVOCATION OF
LICENSE, PERMIT OR CERTIFICATION--ACTS CONSTITUTING A VIOLATION
OF THE PESTICIDE CONTROL ACT.--
A. The department may deny application for any
license, permit or certification or may suspend or revoke any
license, permit or certification when it has reason to believe
that the applicant for or the holder of such license, permit or
certification has violated any of the provisions of Subsection
B of this section.
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B. It is a violation of the Pesticide Control Act
for any person to:
(1) make a false or fraudulent claim through
any media [which] that misrepresents the effect of material or
methods to be used;
(2) make a pesticide recommendation or to use
a pesticide in a manner inconsistent with the labeling;
(3) apply known ineffective or improper
materials;
(4) operate faulty or unsafe apparatus;
(5) operate in a faulty, careless or negligent
manner;
(6) refuse or, after notice, neglect to comply
with the provisions of the Pesticide Control Act or the rules
and regulations adopted pursuant [thereto ] to that act;
(7) refuse or neglect to keep and maintain the
records or to make reports when and as required by the
Pesticide Control Act or rules and regulations adopted pursuant
[thereto] to that act;
(8) make false or fraudulent records, invoices
or reports;
(9) engage in the business of applying a
pesticide on the land of another without having a licensed
applicator or operator in direct "on-the-job" supervision;
(10) use fraud or misrepresentation in making
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an application for a license or renewal of a license;
(11) refuse or neglect to comply with any
limitation or restriction on or in a duly issued license or
permit;
(12) aid or abet a licensed or an unlicensed
person to evade any provision of the Pesticide Control Act,
conspire with a licensed or an unlicensed person to evade the
provisions of [the Pesticide Control ] that act or allow one's
license to be used by an unlicensed person;
(13) make false or misleading statements
during or after an inspection concerning any infestation or
infection of pests found on land;
(14) impersonate any state, county or [city ]
municipal inspector or official;
(15) perform the type of pest control under
the conditions and in the locality in which [he ] the person
operates or has operated, whether or not [he ] the person has
previously passed an examination, when not qualified;
(16) use or supervise the use of a pesticide
[which] that is restricted to use by certified applicators when
not qualified as a certified applicator; or
(17) make pesticide recommendations or apply
pesticides without having the proper certification or license.
C. Any person who has had a license, permit or
certification denied, suspended or revoked by the department
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may request a hearing before the department. The request for a
hearing shall be made within fifteen days of receipt of a
certified letter notifying [him ] the person of the department's
action."
SECTION 7. Section 76-4-34 NMSA 1978 (being Laws 1973,
Chapter 366, Section 34, as amended) is repealed and a new
Section 76-4-34 NMSA 1978 is enacted to read:
"76-4-34. [NEW MATERIAL ] PENALTIES--NOTICE OF
VIOLATION.--The department may assess an administrative penalty
not to exceed five thousand dollars ($5,000) for each violation
of the Pesticide Control Act or rules promulgated in accordance
with that act and may suspend, revoke or deny renewal of a
license. The penalty shall be assessed as provided in Section
76-1-6 NMSA 1978."
SECTION 8. Section 76-4-38 NMSA 1978 (being Laws 1973,
Chapter 366, Section 38) is amended to read:
"76-4-38. COOPERATION.--The department may cooperate,
receive grants-in-aid and enter into cooperative agreements
with any agency of the federal government, of this state or its
subdivisions or with any agency of another state in order to:
A. secure uniformity of regulations;
B. enter into cooperative agreements with the
United States environmental protection agency to register
pesticides under the authority of the Pesticide Control Act and
the Federal Environmental Pesticide Control Act of 1972 ;
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C. cooperate in the enforcement of the Federal
[Environmental Pesticide Control ] Insecticide, Fungicide and
Rodenticide Act and federal regulations through the use of
state or federal personnel and facilities or both and to
implement cooperative enforcement programs, including [but not
limited to] the registration of pesticides, collection and
analysis of pesticides and devices, inspection of storage
facilities and certification of applicators;
D. enter into contracts with other agencies,
including federal agencies, for the purpose of training
pesticide dealers, pesticide management consultants, pesticide
applicators or operators;
E. publish information and conduct short courses on
the storage, transportation, distribution, application, use,
registration and disposal of pesticides and devices and
environmental implications thereof;
F. enter into contracts for either monitoring
pesticides or analyzing land, including agricultural products
that will be consumed by any living organism other than plants,
for pesticide residues or both;
G. prepare and submit a state plan to meet federal
certification standards, including issuing experimental use
permits; and
H. regulate pesticide applicators and operators."
SECTION 9. Section 76-4-39 NMSA 1978 (being Laws 1973,
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Chapter 366, Section 39) is amended to read:
"76-4-39. DISPOSITION OF FUNDS.--[All moneys ] Money from
fees or other sources except for administrative penalties
received by the department under the provisions of the
Pesticide Control Act shall be expended for the purpose of
carrying out the provisions of the Pesticide Control Act."
SECTION 10. Section 76-5-12 NMSA 1978 (being Laws 1959,
Chapter 195, Section 2, as amended) is amended to read:
"76-5-12. DEFINITIONS.--As used in the Plant Protection
Act:
A. "board" means the board of regents of New Mexico
state university, the board controlling the New Mexico
department of agriculture;
B. "plant pests" or "pests" means any organisms
injurious to plants and plant products that in the normal
course of events could be transported with the plant, including
[but not limited to] the phyla arthropoda, mollusca or nematoda
as well as weeds, fungi, bacteria, viruses or parasitic plants
that cause pathological or detrimental physiological conditions
in plants;
C. "nursery stock" means any plant grown,
propagated or collected for planting or propagated for
landscaping or decorative purposes but does not include field,
vegetable and flower seeds;
D. "florist stock" means any parts of a plant used
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for decorative purposes, such as cut flowers, evergreens,
annuals or perennials;
E. "nursery" means any ground or premises on or in
which nursery stock is propagated, grown or cultivated and from
which source nursery stock is offered for distribution or sale;
F. "dealer" means any person who buys and resells
nursery or florist stock, or who is engaged in handling nursery
or florist stock on a consignment basis, when the stock was not
grown on the person's premises;
G. "agent" means any person selling or taking
orders for nursery or florist stock not sold from any stock on
hand for display purposes and is being offered directly to the
consumer;
H. "facilities" means all buildings, greenhouses,
vehicles, storage places, cellars, pits, trenches, bins,
containers, packing material, crates and any other facilities
and materials used in storing and distributing nursery or
florist stock;
I. "collected plants" means those plants dug or
gathered from any location in which plants are found growing
wild;
J. "inspector" means any qualified person employed
by the department to carry out the provisions of the Plant
Protection Act;
K. "landscaper" means any person who buys and
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resells, in connection with the person's design services,
plants used in landscaping;
L. "plant" means any part of any living thing not
classified as an animal, which under the proper conditions can
either continue [to] or resume growing;
M. "stock" means nursery or florist stock or both;
N. "department" means the New Mexico department of
agriculture;
O. "package" means any bundle, parcel, box, carton,
crate or container used in shipping or displaying nursery or
florist stock; [and]
P. "license year" means a period of twelve months
ending on a date specified by the board;
Q. "cactus plant" means a succulent plant native to
arid regions of North or South America;
R. "farmer's market" means a location that allows
plants grown on land owned or leased by registered members for
sale on a temporary basis not to exceed fourteen consecutive
days;
S. "florist" means a person who buys and resells
florist stock and whose primary sales comprise more than
seventy-five percent cut flowers;
T. "producer" means a person growing nursery stock
from seed, seedling or cutting; and
U. "vegetable plant" means a plant grown that at
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maturity is capable of producing a vegetable that may be used
for human consumption ."
SECTION 11. Section 76-5-13 NMSA 1978 (being Laws 1959,
Chapter 195, Section 3, as amended) is amended to read:
"76-5-13. AUTHORITY TO INSPECT.--The department may
inspect any nursery or other place or vehicle that might become
infested or infected with plant pests or that may contain [from
time to time] plants so infested or infected. The department
may inspect or reinspect any nursery or florist stock within
the state and inspect associated documentation. Nursery or
florist stock or other plant material not found to meet
viability standards as provided in Section 76-5-20 NMSA 1978
may be destroyed or removed from sale or managed in a manner
deemed necessary by the department until the conditions are
corrected."
SECTION 12. Section 76-5-15 NMSA 1978 (being Laws 1959,
Chapter 195, Section 6, as amended) is amended to read:
"76-5-15. INSPECTION OF NURSERIES.--The department is
authorized to inspect all nurseries in the state, [and ] all
nursery stock grown within the state, all nursery stock
imported into the state and all nursery stock transported
through the state. If the nursery stock is found to be free of
plant pests, [an inspection certificate shall be issued
certifying that the nursery stock has been inspected and is
believed to be free from plant pests. The certificate shall be
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valid for one license year ] the license shall remain in good
standing. If, at any subsequent inspection, the nursery is
found to be infested with plant pests, the [certificate ]
license may be [canceled] suspended until the conditions are
corrected or revoked."
SECTION 13. Section 76-5-16 NMSA 1978 (being Laws 1959,
Chapter 195, Section 7, as amended) is amended to read:
"76-5-16. [DEALERS', OR AGENTS' ] NURSERY, DEALER,
PRODUCER OR AGENT LICENSES.--Every in-state nursery , dealer,
producer or agent selling, importing into the state or storing
in this state nursery or florist stock shall, [before October 1
of each year and] before engaging in the business of
soliciting, landscaping, taking orders, selling, storing or
delivering any such stock, apply to the department for a
nursery, [or] florist, [dealer's, landscaper's or agent's ]
dealer, landscaper or agent license. Nurseries, dealers,
producers or agents distributing stock directly or on a
consignment basis for more than one store or place of business
or sales ground or selling stock from motor vehicles or other
vehicles shall secure a license for each place or each vehicle
from which the stock is sold. The application for license
shall designate [each ] a single place of business [of ] for the
person applying. The application shall be accompanied by the
prescribed fee for each place or each vehicle from which the
stock is sold. A separate application shall be submitted for
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each location. Upon [proper] a complete application and
receipt of the [proper fee ] applicable fees, the department
shall issue the license, which shall be valid for one license
year. If any licensee is found to have violated any of the
provisions of the Plant Protection Act or rules [regulations or
orders of the department ] promulgated in accordance with that
act, the license may be revoked and, [in ] at the discretion of
the department, the person may be refused a license in the
state. [Those] Dealers who sell only vegetable plants [that
are sold] for food production or dealers selling only cactus
plants may obtain a special dealer's license for the prescribed
fee. Applicants for the special dealer's license shall state
that they will handle only vegetable plants or cactus plants
[and that the plants will be from stock certified by an
inspector]."
SECTION 14. Section 76-5-19 NMSA 1978 (being Laws 1959,
Chapter 195, Section 10, as amended) is amended to read:
"76-5-19. LABELS.--All nursery stock and collected plants
sold, handled, installed or [trafficked] off-loaded in the
state shall be securely and correctly labeled [either as to ]
with common [or] and botanical names based on a current and
recognized industry reference. All labels shall indicate the
origin and nursery of production. "
SECTION 15. Section 76-5-20 NMSA 1978 (being Laws 1973,
Chapter 97, Section 9, as amended) is repealed and a new
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Section 76-5-20 NMSA 1978 is enacted to read:
"76-5-20. [NEW MATERIAL ] PEST-FREE NURSERY AND FLORIST
STOCK.--Only pest-free nursery stock shall be offered for sale
or sold. The offering for sale or sale of nursery stock
infested or infected with a plant pest is a violation of the
Plant Protection Act."
SECTION 16. Section 76-5-21 NMSA 1978 (being Laws 1959,
Chapter 195, Section 11, as amended) is amended to read:
"76-5-21. COLLECTED PLANTS.--All persons collecting
plants for sale [must ] shall file with the department an
application for a collected plants [permit ] license. The board
may adopt [regulations ] rules relative to collected plants."
SECTION 17. Section 76-5-25 NMSA 1978 (being Laws 1959,
Chapter 195, Section 15, as amended) is amended to read:
"76-5-25. POWERS OF BOARD AND DEPARTMENT.--The department
shall enforce the provisions of the Plant Protection Act. The
board shall adopt and promulgate such rules as may be necessary
for its administration and enforcement, including defining
license year. The board may adopt sets of standards and grades
for nursery stock and [if it so desires ] florist stock and
adopt those standards and grades recommended by an industry-
recognized reference, [to ] take any action necessary to ensure
that all nursery stock sold in the state meets the standards
and grades established and [to ] stop sales of any substandard
stock."
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SECTION 18. Section 76-5-26 NMSA 1978 (being Laws 1973,
Chapter 97, Section 15, as amended) is amended to read:
"76-5-26. FEES.--
A. Fees paid for [the ] licenses [certificates and
permits] required [under] by the Plant Protection Act shall be
set by [regulation] rule of the board but shall not exceed the
following amounts:
[(1) annual inspection fee of nursery and
nursery stock, seventy-five dollars ($75.00), plus two dollars
($2.00) per acre of nursery stock inspected;
(2) annual special inspection fee for person
growing only vegetable plants, twenty-five dollars ($25.00);
(3) annual nursery or florist dealer's,
landscaper's or agent's license fee, seventy-five dollars
($75.00);
(4) annual special dealer's license for
persons who handle only vegetable or cactus plants, twenty-five
dollars ($25.00); and
(5) annual fee for collected plants permit,
seventy-five dollars ($75.00) ]
(1) annual nursery stock producer license,
three hundred twenty-five dollars ($325), plus ten dollars
($10.00) per acre of nursery stock production area;
(2) annual vegetable plant producer license
for a person growing only vegetable plants, one hundred dollars
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($100);
(3) annual nursery dealer, landscaper or agent
license, three hundred twenty-five dollars ($325);
(4) annual florist license, two hundred
dollars ($200);
(5) annual collected plant license, three
hundred twenty-five dollars ($325);
(6) annual vegetable plant dealer license for
persons who only sell or distribute vegetable plants, one
hundred dollars ($100);
(7) annual cactus dealer license for persons
who only sell or distribute cacti and other succulents, one
hundred dollars ($100); and
(8) annual farmer's market license, three
hundred twenty-five dollars ($325) .
B. If the complete application and applicable fees
for renewal of [any] an annual license [permit or certificate ]
provided for in the Plant Protection Act [is ] are not filed
prior to the expiration of the prior license [permit or
certificate], the fee for [such] the license [permit or
certificate] shall be double the amount specified in this
section; provided, however, that this double fee shall not
apply if the applicant has not engaged in business subsequent
to the expiration of [his ] the prior license [permit or
certificate] and furnishes an affidavit certifying to that
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fact.
C. The board may adopt [regulations ] rules to
exempt a person from the payment of fees."
SECTION 19. Section 76-5-27 NMSA 1978 (being Laws 1959,
Chapter 195, Section 16, as amended) is amended to read:
"76-5-27. FEES COLLECTED.--
A. All fees collected [under ] pursuant to the
provisions of the Plant Protection Act shall be deposited [in
the treasury of the] with New Mexico state university and be
expended [for the purpose of its administration and
enforcement] to administer and enforce that act.
B. Administrative penalties shall be deposited in
the state treasury to the credit of the current school fund as
provided in Article 12, Section 4 of the constitution of New
Mexico."
SECTION 20. Section 76-5-28 NMSA 1978 (being Laws 1959,
Chapter 195, Section 17, as amended) is repealed and a new
Section 76-5-28 NMSA 1978 is enacted to read:
"76-5-28. [NEW MATERIAL ] PENALTIES.--The department may
assess an administrative penalty not to exceed five thousand
dollars ($5,000) for each violation of the Plant Protection Act
or rules promulgated in accordance with that act and may
suspend, revoke or refuse to renew a license. Penalties shall
be assessed as provided in Section 76-1-6 NMSA 1978."
SECTION 21. Section 76-9-1 NMSA 1978 (being Laws 1975,
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Chapter 122, Section 1) is amended to read:
"76-9-1. SHORT TITLE.--[This act ] Chapter 76, Article 9
NMSA 1978 may be cited as the "Bee Act"."
SECTION 22. Section 76-9-2 NMSA 1978 (being Laws 1975,
Chapter 122, Section 2) is amended to read:
"76-9-2. DEFINITIONS.--As used in the Bee Act:
A. "abandoned colony" means a colony that is
abandoned or neglected by a beekeeper according to criteria
adopted by the board;
B. "apiary" means a location where one or more
colonies or nuclei of bees are managed by a beekeeper;
C. "bee" means all [races of the honeybee, Apis
mellifera L., and other species of the genus Apis that are
capable of being managed for the production of honey, wax or
pollen or that are capable of being managed to pollinate
plants] species of the superfamily Apoidea that are managed for
beneficial purposes, including pollination services or
production of wax and honey ;
D. "beekeeper" means a person who owns, leases or
manages bees;
E. "board" means the board of regents of New Mexico
state university;
F. "colony" means [a family unit of bees composed
of a queen and workers ] a collection of bees attending to one
nest or an assemblage of nests containing bees at any stage of
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development;
[G. "commercial apiary" means a location where a
beekeeper is required to maintain the minimum number of
colonies designated by the board;
H.] G. "contagious disease" means [any ] a disease,
parasite, insect or mite or anything adversely affecting adult
bees or their brood that may be spread from one bee to another
bee or from one colony to another colony;
[I.] H. "department" means the New Mexico
department of agriculture;
[J.] I. "equipment" means [equipment ] tools used in
managing bees, including [but not limited to ] brood chambers,
surplus honey chambers, bottom boards, tops, frames, drawn
comb, queen excluders and feeders;
[K.] J. "hive" means a container made or prepared
that is used as a home by a colony of bees; and
[L.] K. "inspector" means a qualified person
designated by the department to enforce the provisions of the
Bee Act and [regulations adopted by the board ] rules
promulgated in accordance with that act ."
SECTION 23. Section 76-9-3 NMSA 1978 (being Laws 1975,
Chapter 122, Section 3) is amended to read:
"76-9-3. POWERS AND DUTIES OF BOARD AND DEPARTMENT.--
A. The board shall adopt [regulations ] rules
necessary for the administration and enforcement of the Bee Act
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and through the department shall administer and enforce the Bee
Act and [regulations] rules adopted by the board.
B. The department has full power to deal with [any ]
contagious [disease] diseases of bees [which] that in the
opinion of the department may be prevented, controlled or
eradicated and shall perform such acts as [in the judgment of
the department, may be ] necessary to control, eradicate or
prevent the introduction, spread or dissemination of contagious
diseases of bees, including prescriptive treatments,
quarantines and colony destruction .
C. The department has the authority to prohibit
[the shipment or bringing into the state ] colonies or equipment
capable of transmitting contagious disease from being shipped
or brought into New Mexico from any state, territory or foreign
country.
D. The department shall provide services to
beekeepers that include phytosanitary export and import
inspections and document issuance. "
SECTION 24. Section 76-9-5 NMSA 1978 (being Laws 1975,
Chapter 122, Section 5) is amended to read:
"76-9-5. INSPECTION--ACCESS--INTERFERENCE.--[A. The
department shall notify each beekeeper prior to the initial
annual inspection of his apiary and, if requested by the
beekeeper, an inspector shall make the apiary inspection in the
presence of the beekeeper or his representative and at a time
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that conforms to the efficient management of bees ] The
department may inspect any colony or hive that the department
suspects might be or is infected or infested with a contagious
disease that may pose a health risk to other colonies .
Subsequent inspections may be made by an inspector, as needed,
to locate and control contagious disease and [regulate the
location of any apiary. The inspector shall have access to all
apiaries. Any] verify compliance with department-issued
restrictions directed toward the prevention, mitigation or
eradication of contagious diseases. Inspectors shall have
access to all colonies and hives and shall consider
environmental factors and their impact on colony health prior
to an inspection. A person who [shall hinder, resist or
impede] in any way hinders, resists or impedes an inspector in
the discharge of [his ] the inspector's duties [shall be] is in
violation of the Bee Act.
[B. In order to permit the inspector to readily
examine a colony for contagious disease, beekeepers shall
manage bees only in those types of hives approved by the
board.]"
SECTION 25. Section 76-9-7 NMSA 1978 (being Laws 1975,
Chapter 122, Section 7) is amended to read:
"76-9-7. DISEASED COLONIES.--If an inspector finds a
colony infected or infested with a contagious disease [in a
colony, he] verified by a department-approved laboratory and in
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the opinion of the director, the contagious disease poses a
health risk to other colonies, the department shall direct the
beekeeper to destroy the diseased colony and infected or
infested equipment or to treat the colony [according to a
schedule approved by the department; providing the inspector
shall, upon request by the beekeeper, obtain a sample of brood
that is representative of the apiary as determined by the
inspector for submission to an approved state or federal
laboratory for verification of the disease ] and equipment to
eradicate the contagious disease . All [diseased] colonies that
are treated by a beekeeper shall be reinspected [by an
inspector] within the period designated by the [board. The
board may require the beekeeper to pay an amount set by the
board not to exceed fifty dollars ($50.00) for each inspection,
excluding the initial annual inspection, required to certify
that the colonies are apparently free of contagious disease ]
department. Colonies that do not respond to treatment within a
period specified by the [board following the initial
inspection] department shall be destroyed by the beekeeper or
[an inspector] the department at the expense of the beekeeper
and in a manner approved by the department, and the
contaminated equipment shall be disinfected or burned by the
beekeeper or [an inspector ] the department."
SECTION 26. A new section of the Bee Act, Section
76-9-7.1 NMSA 1978, is enacted to read:
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"76-9-7.1. [NEW MATERIAL ] HIVE OWNERSHIP
IDENTIFICATION--ABANDONMENT.--To aid the department and
landowners in contacting owners of hives, each apiary located
on property not owned by a beekeeper shall have posted on it
the beekeeper's contact information, including name, phone
number and other information required by rule. Contact
information shall be posted in a manner that is visible to the
landowner and inspector. The department shall consider hives
located in an apiary not in compliance with this section to be
abandoned only after the department attempts to identify
ownership of the hives as provided by rule."
SECTION 27. Section 76-9-8 NMSA 1978 (being Laws 1975,
Chapter 122, Section 8) is amended to read:
"76-9-8. ABANDONED [COLONIES ] HIVES.--Abandoned
[colonies] hives infected or infested with contagious disease
and contaminated equipment shall be destroyed under the
supervision of the [inspector ] department when the [colony]
hive is found to be infected or infested with a contagious
disease. Abandoned hives with live colonies or abandoned
equipment that is apparently free of contagious disease may be
sold in a manner designated by the [board ] department or
destroyed as specified by the [board ] department."
SECTION 28. Section 76-9-11 NMSA 1978 (being Laws 1975,
Chapter 122, Section 11) is amended to read:
"76-9-11. IMPORTATION OF BEES.--
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A. No [colonies] bees or used bee-related equipment
shall be moved into [the state ] New Mexico unless accompanied
by a certificate of inspection signed by an authorized apiary
inspector of the state from which the bees and used bee-related
equipment originated. The certificate of inspection shall
state that the [colonies ] bees and used bee-related equipment
are apparently free of contagious disease and shall meet other
requirements as designated by the board. The person in [this
state] New Mexico receiving [colonies] bees or used bee-related
equipment shall [file with the department a statement of the
proposed location in the state where the colonies will be
managed and a notice that the bees have arrived. The statement
and notice shall be filed by the beekeeper in accordance with
the regulations of the board. The department shall, as soon as
practicable after arrival, inspect the colonies for contagious
disease. The beekeeper shall pay the actual cost of the
initial inspection and all subsequent inspections required
because of the presence of any contagious disease.
B. This section shall not apply to the movement
into the state of packaged bees or queen bees if moved into the
state in mailing cages free of honey ] maintain a copy of the
certificate of inspection for a minimum of three years. The
beekeeper shall make the certificate of inspection available
for review at the request of the department. The department
may determine that a subsequent inspection is warranted .
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[C.] B. In order to prevent the dissemination of
[any] bees that would adversely affect [the beekeeping
industry] other bees in [the state] New Mexico, the department
may prohibit their entrance into the state and may seize, stop
movement, destroy or otherwise dispose of the bees as the
department deems appropriate."
SECTION 29. Section 76-9-12 NMSA 1978 (being Laws 1975,
Chapter 122, Section 12) is amended to read:
"76-9-12. FEES--DISPOSITION OF FUNDS.--Fees for
inspections, travel and document services shall be established
by the board as provided in Section 76-1-2 NMSA 1978. All
money collected [under the provisions of ] pursuant to the Bee
Act shall be expended only to administer and enforce the Bee
Act."
SECTION 30. Section 76-9-13 NMSA 1978 (being Laws 1975,
Chapter 122, Section 13) is amended to read:
"76-9-13. PENALTIES [BOND ].--
[A. Any person who violates any provision of the
Bee Act or any regulation adopted by the board pursuant
thereto is guilty of a misdemeanor. Each day a person remains
in violation shall constitute a separate offense.
B. The department shall not be required to give
bond or security in any legal proceeding brought under the Bee
Act which the department may institute or defend in any court
of the state.] A person who violates a provision of the Bee Act
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or a rule promulgated by the board in accordance with that act
may be assessed an administrative penalty not to exceed five
thousand dollars ($5,000) for each violation as provided in
Section 76-1-6 NMSA 1978. "
SECTION 31. Section 76-11-3 NMSA 1978 (being Laws 1963,
Chapter 184, Section 3, as amended) is amended to read:
"76-11-3. DEFINITIONS.--As used in the New Mexico
Fertilizer Act:
A. "board" means the board of regents of New Mexico
state university;
B. "department" means the New Mexico department of
agriculture;
C. "fertilizer" means [any ] a substance that
contains one or more recognized plant nutrients and that is
used for its plant nutrient content and is designed for use or
claimed to have value in promoting plant growth, except
unmanipulated animal and vegetable manures, marl limes,
limestone, wood ashes, gypsum and other products exempt by rule
of the board;
D. "fertilizer material" means a fertilizer that
either:
(1) contains important quantities of no more
than one of the primary plant nutrients: nitrogen (N),
phosphate (P
2O
5) and potash (K
2O);
(2) has eighty-five percent of its plant
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nutrient content present in the form of a single chemical
compound; or
(3) is derived from a plant or animal residue
or byproduct or a natural material deposit that has been
processed in such a way that its content of plant nutrients has
not been materially changed except by purification and
concentration;
E. "specialty fertilizer" means a fertilizer
distributed primarily for nonfarm use such as home gardens,
lawns, shrubbery, flowers, golf courses, municipal parks,
cemeteries, greenhouses and nurseries and may include
fertilizers used for research or experimental purposes;
F. "bulk fertilizers" means fertilizers distributed
in a nonpackaged form;
G. "brand" means a term, design or trademark under
which one or more fertilizers [or soil conditioners ] are
distributed in New Mexico;
H. "guaranteed analysis" means the minimum
percentage of plant nutrients claimed in the order and form as
prescribed by the board;
I. "grade" means the percentages of total nitrogen,
available phosphorus or phosphate and soluble potassium or
soluble potash stated in whole numbers in the same terms, order
and percentages as in the guaranteed analysis; provided,
however, that fertilizer materials, bone meal, manures and
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similar raw materials may be guaranteed in fractional units;
J. "official sample" means [any ] a sample of
fertilizer [or soil conditioner ] taken by the department unless
designated otherwise;
K. "ton" means a net weight of two thousand pounds
avoirdupois;
L. "percent" or "percentage" means the percentage
by weight;
[M. "person" includes individual, partnership,
association, firm and corporation;
N.] M. "distributor" means a person that imports,
consigns, manufactures, produces, compounds, mixes or blends
fertilizer [or soil conditioner ] or that offers for sale,
sells, barters or otherwise supplies fertilizer [or soil
conditioner] in the state;
[O.] N. "registrant" means the person that
registers a fertilizer [or soil conditioner ] under the
provisions of the New Mexico Fertilizer Act;
[P.] O. "label" means the display of all written,
printed or graphic matter upon the immediate container or
statement accompanying a fertilizer [or soil conditioner ];
[Q.] P. "labeling" means all written, printed or
graphic matter [upon] on or accompanying a fertilizer; [or soil
conditioner;
R. "soil conditioner" means a substance or mixture
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of substances intended for sale, offered for sale or sold for
manurial, soil enriching or soil corrective purposes or
intended to be used for promoting or stimulating the growth of
plants, increasing the productivity of plants, improving the
quality of crops or producing a chemical or physical change in
the soil, except fertilizer as defined in this section,
unmanipulated animal and vegetable manures and other products
exempted by rules of the board;
S.] Q. "blender" means a person or system engaged
in the business of blending fertilizer, including both mobile
and fixed equipment used in blending;
[T.] R. "blending" means the physical mixing or
combining of fertilizer materials and filler materials as
provided in Paragraphs (1) through (3) of this subsection,
including mixing through the simultaneous or sequential
application of any of the combinations provided in this
subsection, to produce a uniform mixture:
(1) one or more fertilizer materials and one
or more filler materials;
(2) two or more fertilizer materials; or
(3) two or more fertilizer materials and
filler materials;
[U.] S. "custom blend" means a fertilizer blended
according to specifications provided to a blender in a soil
test nutrient recommendation or to meet the specific consumer's
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request prior to blending;
[V.] T. "deficiency" means the amount of nutrient
found by analysis to be less than the guaranteed amount, which
may result from a lack of nutrient ingredients or from lack of
uniformity;
[W.] U. "investigational allowance" means an
allowance for variations inherent in the taking, preparation
and analysis of an official sample of fertilizer; [and
X.] V. "primary nutrient" means total nitrogen,
available phosphate and soluble potash; and
W. "derivation" means the source from which the
guaranteed nutrients are derived ."
SECTION 32. Section 76-11-4 NMSA 1978 (being Laws 1963,
Chapter 184, Section 4, as amended) is amended to read:
"76-11-4. REGISTRATION.--
A. Each brand and grade of fertilizer and each
[soil conditioner] product shall be registered before being
distributed in the state. The application for registration
shall be submitted to the department on a form furnished by the
department and shall be accompanied by a label or other printed
matter describing the fertilizer and a fee [of five dollars
($5.00)] not to exceed twenty dollars ($20.00) per brand or
grade [except that those brands or grades sold in packages of
five pounds or less shall be registered at a fee of fifteen
dollars ($15.00) each ]. Upon approval by the department, a
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copy of the registration shall be furnished to the applicant.
All registrations expire on December 31 of each year.
B. A distributor shall not be required to register
a brand of fertilizer [or soil conditioner ] that is already
registered under the New Mexico Fertilizer Act by another
person.
C. A distributor shall not be required to register
a fertilizer formulated according to specifications that are
furnished by a consumer prior to mixing but shall be required
to label the fertilizer as provided in Subsection C of Section
76-11-5 NMSA 1978."
SECTION 33. Section 76-11-5 NMSA 1978 (being Laws 1963,
Chapter 184, Section 5, as amended) is amended to read:
"76-11-5. LABELING.--
A. A 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) the net weight or other measure prescribed
as satisfactory to the board;
(2) brand and grade;
(3) guaranteed analysis;
(4) name and address of the registrant; [and ]
(5) directions for use for fertilizer
distributed to a consumer; and
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(6) a derivation statement, which shall not
include brand names, trademarks and trade names in the
statement.
B. If a fertilizer is distributed in bulk, a
written or printed statement of the information required by
Subsection A of this section shall accompany delivery and be
supplied to the purchaser at time of delivery.
C. A fertilizer formulated according to
specifications that 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 distributor.
[D. Each brand of soil conditioner distributed in
the state shall be accompanied by a legible label bearing the
following information:
(1) net weight or other measure prescribed as
satisfactory by the board;
(2) the brand name under which the soil
conditioner is distributed;
(3) an accurate statement of composition and
purpose; and;
(4) the name and address of the registrant. ]"
SECTION 34. Section 76-11-6 NMSA 1978 (being Laws 1963,
Chapter 184, Section 6, as amended) is amended to read:
"76-11-6. INSPECTION FEES.--
A. There shall be paid to the department for all
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fertilizer [and soil conditioner ] distributed in the state an
inspection fee set by the board at a rate not to exceed
[thirty-five cents ($.35) ] fifty cents ($.50) a ton with a
minimum inspection fee of five dollars ($5.00) per quarterly
reporting period; provided that sales to manufacturers or
exchanges between them are exempted. Fees so collected shall
be used for the payment of the costs of inspection, sampling
and analysis and other expenses necessary for the
administration of the New Mexico Fertilizer Act.
B. On individual packages of fertilizer [or soil
conditioner] containing five pounds or less, there shall be
paid [in lieu of the annual registration fee of five dollars
($5.00) per brand and grade of fertilizer and each soil
conditioner product and the required inspection fee an annual
registration fee and inspection fee of fifteen dollars
($15.00). Where] an annual inspection fee not to exceed fifty
dollars ($50.00). If a person sells fertilizer [or soil
conditioner] in packages of five pounds or less and in packages
over five pounds, the annual registration and inspection fee
[of fifteen dollars ($15.00) ] applies only to that portion sold
in packages of five pounds or less [and that portion sold in
packages over five pounds is subject to the inspection fee ].
C. A person who distributes a fertilizer [or soil
conditioner] in the state shall file with the department on
forms furnished by the department a quarterly statement for the
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periods ending March 31, June 30, September 30 and December 31
setting forth the number of net tons of each fertilizer [or
soil conditioner] distributed in the state during the quarter.
The report is due on or before the last day of the month
following the close of each quarter. The inspection fee shall
be paid at the time of filing of the statement. If the tonnage
report is not filed and the payment of inspection fee is not
made within thirty days after the end of the quarter, a
collection fee amounting to ten percent, but not less than ten
dollars ($10.00), of the amount shall be assessed against the
registrant, and the amount of fees due constitutes a debt and
becomes the basis of a judgment against the registrant.
D. When more than one person is involved in the
distribution of fertilizer [or soil conditioner ], the first
person who has the fertilizer [or soil conditioner ] registered
and who distributes to a nonregistrant dealer or consumer is
responsible for reporting the tonnage and paying the inspection
fee unless the report and payment have been previously made by
a prior distributor."
SECTION 35. Section 76-11-7 NMSA 1978 (being Laws 1963,
Chapter 184, Section 7, as amended) is amended to read:
"76-11-7. INSPECTION--SAMPLING--ANALYSIS.--
A. The department shall sample, inspect, make
analyses of and test fertilizers [and soil conditioners ]
distributed within the state at a time and place and to the
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extent necessary to determine whether the fertilizer [or soil
conditioner] is in compliance with the New Mexico Fertilizer
Act. The department may enter upon public or private premises
or carriers during the regular business hours in order to have
access to the fertilizer [or soil conditioners ] and may examine
records relating to the distribution of fertilizer [and soil
conditioners] subject to the provisions of [the New Mexico
Fertilizer] that act and [the] rules adopted [pursuant to ] in
accordance with that act.
B. The methods of analysis and sampling shall be
those adopted by the department from sources such as the
association of official agricultural chemists. In cases not
covered by such methods, or in cases where methods in which
improved applicability has been demonstrated are available, the
department may adopt such appropriate methods from other
sources.
C. The department, in determining for
administrative purposes whether a fertilizer is deficient in
plant food, shall be guided solely by the official sample, as
defined by Section 76-11-3 NMSA 1978, obtained and analyzed as
provided for in Subsection B of this section.
D. Upon request, the department shall furnish to
the registrant a portion of any sample found subject to penalty
or other legal action. Official samples establishing a penalty
for nutrient deficiency shall be retained for a minimum of
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ninety days from issuance of a deficiency report."
SECTION 36. Section 76-11-10 NMSA 1978 (being Laws 1975,
Chapter 181, Section 10, as amended) is amended to read:
"76-11-10. MISBRANDING.--A person shall not distribute
misbranded fertilizer [or soil conditioner ]. A fertilizer [or
soil conditioner] is misbranded if:
A. its labeling is false or misleading in any
particular;
B. it is distributed under the name of another
fertilizer [or soil conditioner ] product;
C. it is not labeled as required in Section
76-11-5 NMSA 1978 and in accordance with rules [prescribed
under] promulgated in accordance with the New Mexico Fertilizer
Act; or
D. it purports to be or is represented as a
fertilizer [or soil conditioner ] or is represented as
containing a plant nutrient, fertilizer [or soil conditioner ]
unless such plant nutrient, fertilizer [or soil conditioner ]
conforms to the definition of identity, if any, prescribed by
rule of the board; in adopting such rules, the board shall give
due regard to commonly accepted definitions and official
fertilizer terms such as those issued by the association of
American plant food control officials."
SECTION 37. Section 76-11-11 NMSA 1978 (being Laws 1963,
Chapter 184, Section 11, as amended) is amended to read:
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"76-11-11. TONNAGE REPORTS.--The person transacting,
distributing or selling fertilizer [or soil conditioner ] to a
nonregistrant shall mail the department a report showing the
county of the consignee, the amounts in tons of each grade of
fertilizer and each [soil conditioner ] product and the form in
which the fertilizer [or soil conditioner ] was distributed such
as bags, liquid, bulk or other forms. This information shall
be reported by one of the following methods:
A. submitting a quarterly summary report [approved
by the department] on forms furnished by the department for the
periods ending March 31, June 30, September 30 and December 31 ,
on or before the [fifteenth day of each month covering
shipments made during the preceding month ] last day of the
month following the close of each quarter ; or
B. submitting a copy of the invoice within five
business days after shipment. Information furnished to the
department [under] pursuant to this section shall not be
disclosed in such a way as to divulge the operation of any
person."
SECTION 38. Section 76-11-12 NMSA 1978 (being Laws 1963,
Chapter 184, Section 12, as amended) is amended to read:
"76-11-12. PUBLICATIONS.--The board shall publish at
least annually and in a form it deems proper:
A. information concerning the distribution of
fertilizers [and soil conditioners ]; and
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B. results of analysis based on official samples of
fertilizers [and soil conditioners ] distributed within the
state as compared with the analysis guaranteed in the
registration and the label."
SECTION 39. Section 76-11-13 NMSA 1978 (being Laws 1963,
Chapter 184, Section 13, as amended) is amended to read:
"76-11-13. RULES.--For the enforcement of the New Mexico
Fertilizer Act, the board may prescribe and, after public
hearing following due public notice, [adopt ] promulgate the
rules relating to the distribution of fertilizers [and soil
conditioners that it may find ] necessary to carry into effect
the full intent and meaning of the New Mexico Fertilizer Act.
[Under this section] The board may promulgate rules for the
storing, hauling and handling of anhydrous ammonia and other
gaseous or liquid fertilizers [and they shall have the same
effect as law]."
SECTION 40. Section 76-11-14 NMSA 1978 (being Laws 1963,
Chapter 184, Section 14, as amended) is amended to read:
"76-11-14. SHORT WEIGHT.--If a fertilizer [or soil
conditioner] in the possession of [the ] a consumer is found by
the department to be short in weight or other measure
prescribed by the board, the registrant of the fertilizer [or
soil conditioner] shall, within thirty days after official
notice from the department, pay to the consumer a penalty equal
to four times the value of the actual shortage."
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SECTION 41. Section 76-11-15 NMSA 1978 (being Laws 1963,
Chapter 184, Section 15, as amended) is amended to read:
"76-11-15. CANCELLATION OF REGISTRATIONS.--The
department may cancel the registration of any brand of
fertilizer [or soil conditioner ] or refuse to register any
brand of fertilizer [or soil conditioner ] upon satisfactory
evidence that the registrant has used fraudulent or deceptive
practices in the evasions or attempted evasions of the
provisions of the New Mexico Fertilizer Act or any rules
promulgated [under] in accordance with that act; provided that
no registration shall be revoked or refused until the
registrant is given an opportunity to appear for a hearing by
the department."
SECTION 42. Section 76-11-16 NMSA 1978 (being Laws 1963,
Chapter 184, Section 16, as amended) is amended to read:
"76-11-16. STOP SALE ORDERS.--The department may issue
and enforce a written or printed "stop sale, use or removal"
order to the owner or custodian of any lot of fertilizer [or
soil conditioner] and to be held at a designated place when the
department finds the fertilizer [or soil conditioner ] is being
offered or exposed for sale in violation of any of the
provisions of the New Mexico Fertilizer Act until the law has
been complied with and the fertilizer [or soil conditioner ] is
released in writing by the department or the violation has been
otherwise legally disposed of by written authority. The
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department shall release the fertilizer [or soil conditioner ]
so withdrawn when the requirements of the provisions of [the
New Mexico Fertilizer ] that act have been complied with and all
costs and expenses incurred in connection with the withdrawal
have been paid."
SECTION 43. Section 76-11-17 NMSA 1978 (being Laws 1963,
Chapter 184, Section 17, as amended) is amended to read:
"76-11-17. SEIZURE--CONDEMNATION--SALE.--
A. Any lot of fertilizer [or soil conditioner ] not
in compliance with the provisions of the New Mexico Fertilizer
Act is subject to seizure on complaint of the department to a
court of competent jurisdiction in the area in which the
fertilizer [or soil conditioner ] is located.
B. In the event the court finds the fertilizer [or
soil conditioner] to be in violation of the New Mexico
Fertilizer Act and orders the condemnation of the fertilizer
[or soil conditioner], it shall be disposed of in any manner
consistent with the quality of the fertilizer [or soil
conditioner] and the laws of the state.
C. In no instance shall the disposition of the
fertilizer [or soil conditioner ] be ordered by the court
without first giving the claimant an opportunity to apply to
the court for release of the fertilizer [or soil conditioner ]
or for permission to process or relabel the fertilizer [or soil
conditioner] to bring it into compliance with the New Mexico
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Fertilizer Act."
SECTION 44. Section 76-11-18 NMSA 1978 (being Laws 1963,
Chapter 184, Section 18, as amended) is amended to read:
"76-11-18. VIOLATIONS.--[A. ] If it appears from the
examination of a fertilizer [or soil conditioner ] that any of
the provisions of the New Mexico Fertilizer Act or the rules
[issued pursuant to] promulgated in accordance with that act
have been violated, the department [shall cause notice of the
violations to be given to the registrant, distributor or
possessor from whom the sample was taken; a person notified
shall be given opportunity to be heard under the rules
prescribed by the board. If it appears after the hearing,
either in the presence or the absence of the person notified,
that any of the provisions of the New Mexico Fertilizer Act or
rules issued pursuant to that act have been violated, the
department may certify the facts to the proper district
attorney.
B. A person convicted of violating any provision of
the New Mexico Fertilizer Act or the rules issued pursuant to
that act is guilty of a misdemeanor.
C. Nothing in the New Mexico Fertilizer Act shall
require the department or its representative to report for
prosecution or for the institution of seizure proceedings as a
result of minor violations of the New Mexico Fertilizer Act
when it believes that the public interests will be best served
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by a suitable notice of warning in writing.
D. The department may apply for and the court may
grant a temporary or permanent injunction restraining a person
from violating or continuing to violate any of the provisions
of the New Mexico Fertilizer Act or any rule promulgated
pursuant to that act, notwithstanding the existence of other
remedies at law. The injunction shall be issued without bond ]
may assess an administrative penalty not to exceed five
thousand dollars ($5,000) for each violation and the department
may suspend, revoke or refuse to renew the person's
registration as provided in Section 76-1-6 NMSA 1978 ."
SECTION 45. Section 76-11-19 NMSA 1978 (being Laws 1963,
Chapter 184, Section 19, as amended) is amended to read:
"76-11-19. EXCHANGES BETWEEN MANUFACTURERS.--Nothing in
the New Mexico Fertilizer Act shall be construed to restrict or
avoid sales or exchanges of fertilizers [or soil conditioners ]
to each other by importers, manufacturers or manipulators that
mix those materials for sale or as preventing the free and
unrestricted shipments of fertilizer [or soil conditioners ] to
manufacturers or manipulators that have registered their brands
as required by the provisions of the New Mexico Fertilizer
Act."
SECTION 46. Section 60-16-1 NMSA 1978 (being Laws 2018,
Chapter 47, Section 1) is recompiled as Section 76-16A-1 NMSA
1978 and is amended to read:
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"76-16A-1. SHORT TITLE.--[This act ] Chapter 76, Article
16A NMSA 1978 may be cited as the "Pecan Buyers Licensure
Act"."
SECTION 47. Section 60-16-2 NMSA 1978 (being Laws 2018,
Chapter 47, Section 2) is recompiled as Section 76-16A-2 NMSA
1978 and is amended to read:
"76-16A-2. DEFINITIONS.--As used in the Pecan Buyers
Licensure Act:
A. "accumulator" means a person engaged in the
purchasing and possessing of in-shell pecans with the intent of
selling them to another buyer;
B. "broker" means a person who buys in-shell pecans
on behalf of others;
[A.] C. "buyer" means a person engaged in the
business of purchasing in-shell pecans [from a pecan producer ]
and includes an accumulator, [buying station, cleaning plant ]
sheller, dealer, [or] broker, cooperative or other person
defined by rule that purchases or acquires in-shell pecans on
behalf of themselves or others ;
[B.] D. "buying location" means a physical location
where a buyer [accepts ] receives in-shell pecans or a physical
location where records relating to the purchase or acquisition
of in-shell pecans are maintained [in the event the purchase of
in-shell pecans is brokered ];
E. "cooperative" means a membership organization
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engaged in buying, accumulating or shelling in-shell pecans for
the benefit of its members;
F. "dealer" means a person engaged in the business
of buying in-shell pecans and selling them directly to the
consumer;
[C.] G. "department" means the New Mexico
department of agriculture, its staff or authorized agents;
[D.] H. "director" means the director of the [New
Mexico] department [of agriculture ];
[E.] I. "in-shell pecan" means a pecan nut with its
shell attached;
[F.] J. "license" means an in-shell pecan buyer's
license issued by the department [pursuant to the Pecan Buyers
Licensure Act];
[G.] K. "peace officer" means a full-time salaried,
[and] commissioned [or] and certified law enforcement officer
of a police or sheriff's department that is part of or
administered by the state or a political subdivision of the
state; and
[H. "pecan producer" means a person who grows
pecans; and
I.] L. "personal identification document" means:
(1) a driver's license;
(2) a military identification card; or
(3) a passport issued by the United States or
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by another country and recognized by the United States."
SECTION 48. Section 60-16-7 NMSA 1978 (being Laws 2018,
Chapter 47, Section 7) is recompiled as Section 76-16A-7 NMSA
1978 and is amended to read:
"76-16A-7. VIOLATIONS--REVOCATION OF LICENSE--PENALTY.--
A. The department may suspend or revoke a license
for violations of the Pecan Buyers Licensure Act or the rules
or orders promulgated pursuant to that act. The department may
deny a subsequent license to a person found to be in violation
of the Pecan Buyers Licensure Act.
[B. A person who violates the provisions of the
Pecan Buyers Licensure Act, or a rule or order promulgated
under that act, after a notice to cease and desist, is guilty
of a penalty assessment misdemeanor, and the penalty assessment
is two hundred fifty dollars ($250). ]
B. The department may assess an administrative
penalty not to exceed five thousand dollars ($5,000) for each
violation of the Pecan Buyers Licensure Act or rules
promulgated in accordance with that act.
C. Penalties shall be assessed as provided in
Section 76-1-6 NMSA 1978.
[C.] D. Each day a person remains in violation of
the Pecan Buyers Licensure Act constitutes a separate offense."
SECTION 49. Section 60-16-8 NMSA 1978 (being Laws 2018,
Chapter 47, Section 8) is recompiled as Section 76-16A-8 NMSA
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1978 and is amended to read:
"76-16A-8. DISPOSITION OF FEES.--All license fees
collected pursuant to the Pecan Buyers Licensure Act shall be
paid [into the treasury of ] to New Mexico state university and
credited to the department for administration and enforcement
of the Pecan Buyers Licensure Act."
SECTION 50. Section 76-19A-12 NMSA 1978 (being Laws
2013, Chapter 23, Section 12) is amended to read:
"76-19A-12. INSPECTION FEES--REPORTS--CANCELLATION OF
REGISTRATIONS.--
A. [An inspection fee shall be paid to the board
for all commercial feeds distributed in New Mexico. The fee
shall not exceed fifteen cents ($.15) ] There shall be paid to
the department for all commercial feed distributed in New
Mexico an inspection fee set by the board at a rate not to
exceed fifty cents ($.50) per ton, with a minimum inspection
fee of five dollars ($5.00) per quarterly report period or, for
each brand of commercial feed distributed in individual
packages of ten pounds or less, a distributor shall pay an
annual inspection fee not to exceed [twenty-five dollars
($25.00)] fifty dollars ($50.00) and shall not pay the tonnage
fee on such packages of the brand so registered.
B. Fees collected shall not exceed the costs of
inspection, sampling and analysis and other expenses necessary
for the administration of the New Mexico Commercial Feed Act.
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Fees collected shall constitute a fund for the payment of the
costs of inspection, sampling and analysis and other expenses
necessary for the administration of that act.
C. Except as otherwise provided in this section, a
person who distributes commercial feed in New Mexico shall:
(1) file, not later than the last day of
January, April, July and October of each year, a quarterly
statement setting forth the number of net tons of commercial
feeds distributed in New Mexico during the preceding calendar
quarter and, upon filing the statement, shall pay the
inspection fee. When more than one person is involved in the
distribution of commercial feed, the person who distributes to
the consumer is responsible for reporting the tonnage and
paying the inspection fee unless the report and payment have
been made by a prior distributor of the feed; and
(2) keep such records as may be necessary or
required by the board to indicate accurately the tonnage of
commercial feeds distributed in New Mexico, and the board may
examine those records to verify statements of tonnage. If a
quarterly report is not filed or if the inspection fee is not
paid within the thirty-day period after the end of a quarter, a
penalty of twenty percent, or a sum of ten dollars ($10.00),
whichever is greater, [will ] shall be due in addition to the
inspection fees, and the inspection fees and the penalty shall
constitute a debt for which suit may be brought by the board.
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D. Failure to make an accurate statement of tonnage
or to pay the inspection fee or comply with the provisions of
the New Mexico Commercial Feed Act shall constitute sufficient
cause for the cancellation of all registrations on file for the
distributor."
SECTION 51. Section 76-19A-15 NMSA 1978 (being Laws
2013, Chapter 23, Section 15) is repealed and a new Section
76-19A-15 NMSA 1978 is enacted to read:
"76-19A-15. [NEW MATERIAL ] PENALTIES.--The department
may assess an administrative penalty not to exceed five
thousand dollars ($5,000) for each violation of the Commercial
Feed Act or rules promulgated in accordance with that act."
SECTION 52. Section 25-6-1 NMSA 1978 (being Laws 1963,
Chapter 138, Section 1) is amended to read:
"25-6-1. SHORT TITLE.--[This act ] Chapter 25, Article 6
NMSA 1978 may be cited as the "Egg Grading Act"."
SECTION 53. Section 25-6-9 NMSA 1978 (being Laws 1963,
Chapter 138, Section 9, as amended) is amended to read:
"25-6-9. EGG INSPECTION FEE.--The department's
administrative and enforcement duties pursuant to the Egg
Grading Act shall be financed in part by the collection of a
fee on all eggs sold to the retailer or consumer. The board
[shall have authority to ] may establish the fee at [their ] the
board's discretion, but in no case shall the fee exceed [one-
half cent] ten cents ($.10) per dozen. The fee shall be paid
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by the egg dealer or producer who packages the eggs for sale to
the retailer or consumer. All money collected under the
provisions of the Egg Grading Act shall be deposited with [the ]
New Mexico state university [for the purposes of administering ]
to administer the provisions of that act and [promoting ]
promote the poultry industry and its products and shall be
expended upon the order of the board in the same manner as
other funds of [the] New Mexico state university."
SECTION 54. Section 25-6-12 NMSA 1978 (being Laws 1963,
Chapter 138, Section 12, as amended) is amended to read:
"25-6-12. CERTIFICATION OF DEALERS.--
A. A small dealer's license is required of any
person [firm or corporation who ] that buys, sells or traffics
in more than five cases and less than two hundred cases of eggs
in any one week.
B. A [medium-sized] medium dealer's license is
required of any person [firm or corporation who ] that buys,
sells or traffics in [over ] more than two hundred cases and
less than four hundred cases of eggs in any one week.
C. A large dealer's license is required of any
person [firm or corporation who ] that buys, sells or traffics
in [over] more than four hundred cases of eggs in any one week.
D. The annual fees for each type of dealer [are ]
shall not exceed:
(1) small dealer..............[$10.00 ] $20.00;
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(2) medium dealer.............[$25.00] $50.00;
and
(3) large dealer..............[$50.00 ] $100.
E. For the purpose of this section, a "case" shall
consist of thirty dozen eggs.
F. All licenses shall be conspicuously posted in
the place of business to which they apply. The license is
subject to revocation by the inspectors for cause. [All
licenses issued prior to the effective date of the Egg Grading
Act shall expire when the act becomes effective and thereafter ]
All licenses are renewable annually on July 1 [of each year ]
and shall expire on June 30 of the succeeding year."
SECTION 55. Section 25-6-16 NMSA 1978 (being Laws 1963,
Chapter 138, Section 16) is repealed and a new Section 25-6-16
NMSA 1978 is enacted to read:
"25-6-16. [NEW MATERIAL ] PENALTIES.--
A. The department may assess an administrative
penalty not to exceed five thousand dollars ($5,000) for each
violation of the Egg Grading Act or rules promulgated in
accordance with that act and may suspend, revoke or refuse to
renew a license. Penalties shall be assessed as provided in
Section 76-1-6 NMSA 1978.
B. In addition to all other fees prescribed by the
Egg Grading Act, a penalty fee of ten percent shall be added
for delinquent filing of any report or the delinquent paying of
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any inspection fee, and, if the report and payment are not made
within ten days of notification of delinquency, the penalty
shall be twenty-five percent of the inspection fee. Persons
filing a false report shall be penalized fifty percent of the
amount due for inspection fees."
SECTION 56. Section 57-17-1 NMSA 1978 (being Laws 1959,
Chapter 202, Section 1, as amended) is amended to read:
"57-17-1. DEFINITIONS.--As used in [this ] the Weights
and Measures Act:
[A. "person" includes individuals, partnerships,
corporations, companies, societies and associations;
B. "weight(s)" and "measure(s)" include all
instruments and devices used for weighing and measuring and
their necessary and associated accessories and appliances; ]
A. "apparatus" means a manual or mechanical unit,
method or device used to determine weight, measure or quantity;
B. "board" means the board of regents of New Mexico
state university;
C. "commercial weighing or measuring device" means
a device used or employed commercially to establish the
quantity, weight, count or size of products involving a
monetary transaction or in computing a basic change or payment
for services rendered on the basis of weight or measure;
D. "correct" means the condition of an apparatus
that by reason of its construction and adjustment will give
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accurate readings or indications of weight and quantity;
E. "department" means the New Mexico department of
agriculture;
F. "director" means the director of the department;
G. "incorrect" means the condition of an apparatus
or an apparatus's construction that precludes the apparatus
from being reasonably permanent in its adjustment or that does
not allow the apparatus to repeat its indications of weight or
quantity with accuracy;
H. "in package form" means a good or commodity
packaged or contained in advance of sale so as to constitute a
unit quantity of the good or commodity; provided that a good or
commodity not contained but upon which is marked a selling
price based upon weight or measure shall be construed to be in
packaged form; and provided further that "in package form" does
not include a shipping container containing goods or
commodities in packaged form;
I. "primary standards" means the physical standards
of the state that serve as the legal reference from which all
other standards for weights and measures are derived;
J. "sale from bulk" means the sale of commodities
when the quantity is determined at the time of sale;
K. "secondary standards" means the physical
standards that are traceable to the primary standards through
comparisons or by using acceptable laboratory procedures and
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that are used in the enforcement of laws and rules relating to
weights and measures;
[C.] L. "sell" [and] or "sale" [include] includes
barter and exchange;
[D. "apparatus" includes any manual or mechanical
unit, method or device used to determine weight, measure or
quantity;
E. "correct" means the condition of apparatus which
by reason of its construction and adjustment will give accurate
readings or indications of weight and quantity;
F. "incorrect" means the condition of apparatus or
its construction which precludes it from being reasonably
permanent in its adjustment or which will not allow it to
repeat its indications of weight or quantity with accuracy;
G. "in package form" means a good or commodity
packaged or contained in advance of sale so as to constitute a
unity quantity of the good or commodity; a good or commodity
not contained, but upon which is marked a selling price based
upon weight or measure, shall be construed to be in packaged
form; a shipping container containing goods or commodities in
packaged form is excluded from this definition; ]
M. "service establishment" means a person that
installs, services, repairs or reconditions commercial weighing
or measuring devices solely under that person's ownership;
N. "service technician" means a person employed by
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a service establishment who installs, services, repairs or
reconditions commercial weighing or measuring devices;
O. "unsealed" means a commercial weighing or
measuring device that lacks a department-issued approval level,
tag, stamped or etched impression or similar indication of
official approval for the device to operate in commercial
service;
[H.] P. "weight" means net weight; and
[I. "sale from bulk" means the sale of commodities
when the quantity is determined at the time of sale;
J. "board" means the board of regents of New Mexico
state university; and
K. "director" means the director of the New Mexico
department of agriculture ]
Q. "weights and measures" means all instruments and
devices used for weighing and measuring and their necessary and
associated accessories and appliances ."
SECTION 57. A new section of the Weights and Measures
Act, Section 57-17-1.1 NMSA 1978, is enacted to read:
"57-17-1.1. [NEW MATERIAL ] SHORT TITLE.--Chapter 57,
Article 17 NMSA 1978 may be cited as the "Weights and Measures
Act"."
SECTION 58. Section 57-17-2 NMSA 1978 (being Laws 1973,
Chapter 386, Section 2) is amended to read:
"57-17-2. SYSTEMS OF WEIGHTS AND MEASURES.--The system
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of weights and measures in customary use in the United States
and the metric system of weights and measures are jointly
recognized and either one or both of these systems shall be
used for all commercial purposes in [the state ] New Mexico.
The definitions of basic units of weights and [measure ]
measures, the tables of [weight ] weights and [measure] measures
and weights and measures equivalents as published by the
national [bureau of standards ] institute of standards and
technology shall be used by the board in arriving at standards
[which] that shall govern weighing and measuring equipment and
transactions in [the state ] New Mexico."
SECTION 59. Section 57-17-3 NMSA 1978 (being Laws 1973,
Chapter 386, Section 3) is amended to read:
"57-17-3. PHYSICAL STANDARDS.--Weights and measures that
are traceable to the United States prototype standards supplied
by the federal government or approved as being satisfactory by
the national [bureau] institute of standards and technology
shall be the state primary standards of weights and measures.
The state primary standards shall be maintained in such
calibration as prescribed by the national [bureau ] institute of
standards and technology . Secondary standards may be
prescribed by the director. Secondary standards shall be
verified upon their initial receipt and as often thereafter as
deemed necessary by the director."
SECTION 60. Section 57-17-4 NMSA 1978 (being Laws 1973,
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Chapter 386, Section 4) is amended to read:
"57-17-4. ENFORCEMENT AND ADMINISTRATION.--
A. [Sections 76-1-28 through 76-1-55 NMSA 1953 ] The
Weights and Measures Act shall be administered and enforced by
the [director] department under the direction of the board.
[Such sums as may be] Money appropriated by the legislature and
fees [which] that are collected shall be allowed to the
department for salaries for inspectors and for necessary
clerical employees, necessary equipment and supplies, travel
and contingent expenses.
B. The board shall, after due notice and hearing,
issue reasonable [regulations ] rules to carry out the
provisions of [Chapter 76 NMSA 1953 ] the Weights and Measures
Act. The [regulations] rules shall have the force of law and
may include [but not be limited to ]:
(1) standards of weight, measure or count,
reasonable standards of fill and labeling requirements for a
commodity in package form; and
(2) specifications and tolerances of
apparatus, weights and measures designed to eliminate from use
apparatus the inaccuracy of which would facilitate the
perpetration of fraud."
SECTION 61. Section 57-17-5 (being Laws 1959, Chapter
202, Section 6, as amended) is repealed and a new Section
57-17-5 NMSA 1978 is enacted to read:
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"57-17-5. [NEW MATERIAL ] REGISTRATION--FEES.--
A. Prior to installing, servicing, repairing or
reconditioning a commercial weighing or measuring device in New
Mexico, a service establishment and each service technician
employed by or who is part of the service establishment shall
be registered with the department.
B. Without registration, a service establishment or
service technician is not allowed to place a commercial
weighing or measuring device into commercial service or to
remove official stickers or tags. Only commercial weighing or
measuring devices placed in service by a registered service
technician or by the department are legal for commercial use in
New Mexico.
C. The board shall promulgate rules for service
establishments that include registration forms, service
technician qualifications, authority and responsibilities of
the registrant and sufficient certified test standards.
D. Each registration shall be issued for a period
of one year. The effective date of registration shall be
determined by rule. The registrant shall file a renewal
application with the department prior to the expiration date.
Renewal applications shall be in the form prescribed by rule.
A late fee shall be charged for failure to submit a complete
application for renewal of registration prior to the expiration
of the current registration.
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E. The department may suspend or revoke a
registration of a service establishment or service technician
on satisfactory evidence that the registrant has not met the
provisions of the Weights and Measures Act or rules promulgated
in accordance with that act. A registration shall not be
suspended or revoked or application denied until the registrant
is given an opportunity to appear for a hearing before the
director."
SECTION 62. Section 57-17-6 NMSA 1978 (being Laws 1959,
Chapter 202, Section 6, as amended) is amended to read:
"57-17-6. CUSTODY OF STATE STANDARDS.--The New Mexico
standards of [weight] weights and [measure] measures shall be
kept in a safe and suitable place in the [office of the
director] department and shall not be removed except for
repairs or certification."
SECTION 63. Section 57-17-7 NMSA 1978 (being Laws 1959,
Chapter 202, Section 7, as amended) is amended to read:
"57-17-7. DUTIES OF [DIRECTOR ] DEPARTMENT.--It [shall
be] is the duty of the [director ] department to:
A. enforce the provisions of [this ] the Weights and
Measures Act;
B. maintain custody of the New Mexico standards of
[weight] weights and [measure] measures and of the other
standards and equipment entrusted to [his ] the department's
care;
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C. keep accurate records of all standards of
[weight] weights and [measure] measures;
D. keep and have general supervision over apparatus
used to determine [weight ] weights and [measure] measures
offered for sale, sold or in use in [the state ] New Mexico;
E. report annually to the governor [of the state ]
the report to cover all activities carried out [under ] pursuant
to the provisions of [Chapter 76, NMSA 1953 ] the Weights and
Measures Act and the Weighmaster Act ;
F. test at least once annually all apparatus,
weights and measures used in checking the receipt or
disbursement of supplies in institutions supported in whole or
in part by [moneys] money appropriated by the legislature;
G. inspect and test for accuracy, at least once
annually, commercial apparatus, weights and measures used in:
(1) determining the weight, measurement or
count of goods and commodities sold or offered for sale on the
basis of weight or measure;
(2) computing the basic charge or payment for
services rendered on the basis of weight or measure; or
(3) determining weight or measure when a
charge is made for such determination; and
H. weigh, measure and inspect from time to time
packages and amounts of goods and commodities offered for sale,
sold or in the process of delivery to determine whether the
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weight, measure or quantity of the good or commodity is the
same as that represented by the terms of the offer or sale."
SECTION 64. Section 57-17-8 NMSA 1978 (being Laws 1959,
Chapter 202, Section 8, as amended) is amended to read:
"57-17-8. POWERS OF THE [DIRECTOR--POLICE POWERS ]
DEPARTMENT--RIGHT OF ENTRY AND STOPPAGE.--To facilitate the
performance of [his] the department's duties and the
enforcement of the provisions of [this ] the Weights and
Measures Act and the [regulations ] rules promulgated
[hereunder] pursuant to that act , the [director] department, in
the performance of [his ] its duties, is empowered to:
A. approve for use and seal or mark with
appropriate devices the weights and measures [he ] that the
department finds upon inspection and test to be correct;
B. reject and mark or tag as "recommended for
repair" apparatus, weights and measures [he ] that the
department finds upon inspection and test to be incorrect but
[which] that in [his] its best judgment are susceptible of
satisfactory repair;
C. condemn or seize weights and measures [he ] that
the director finds upon inspection to be incorrect but [which ]
that in [his] the director's best judgment are not susceptible
of satisfactory repair;
D. [arrest by formal warrant ] seize without
warrant for use as evidence incorrect or unsealed apparatus;
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E. file a criminal complaint in magistrate court
for a willful [violator] and knowing or repeated violation of
the provisions of [this ] the Weights and Measures Act or the
[regulations] rules promulgated [hereunder and to seize without
formal warrant for use as evidence incorrect or unsealed
apparatus] in accordance with that act ; weights and measures
and packages or goods and commodities found by [him ] the
department to be sold or offered for sale in violation of [law ]
that act;
[E. to] F. enter without formal warrant a
structure or premises for the purposes of inspection during
business hours;
[F.] G. conduct investigations to ensure compliance
with [this] the Weights and Measures Act; and
[G.] H. issue stop-use, hold and removal orders
with respect to [any] weights and measures commercially used
and stop-sale, hold and removal orders with respect to [any ]
packaged commodities or bulk commodities kept, offered or
exposed for sale."
SECTION 65. Section 57-17-10 NMSA 1978 (being Laws 1959,
Chapter 202, Section 10, as amended) is amended to read:
"57-17-10. DUTY OF OWNER OF INCORRECT APPARATUS.--An
owner or user of apparatus [of weight or measure ] recommended
for repair shall cause the apparatus to be made correct within
a reasonable period specified by the director or an inspector.
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Except, at the election of the owner or user, the apparatus may
be disposed of in a manner specifically authorized by the
director. An apparatus of weight or measure [which ] that has
been recommended for repair shall not be used again for a
commercial purpose until it has been made correct and found to
be correct by the director or an inspector unless otherwise
provided for by [regulation ] rule."
SECTION 66. Section 57-17-12 NMSA 1978 (being Laws 1959,
Chapter 202, Section 12, as amended) is amended to read:
"57-17-12. DECLARATIONS ON PACKAGES--DECLARATIONS OF
UNIT PRICE ON RANDOM PACKAGES.--
A. Except as otherwise provided by law or
[regulation] rule of the board, a commodity in package form
shall bear on the outside of the package:
(1) a definite, plain and conspicuous
declaration of net quantity of the contents in terms of weight,
measure or count and in the case of any package not sold in the
premises where packed;
(2) the name and place of business of the
manufacturer, packer or distributor; and
(3) the identity of the commodity in the
package, unless the [same ] commodity can easily be identified
through the wrapper or container.
B. In addition to the declarations required by this
section, any package being one of a lot containing random
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weights of the same commodity and bearing the total selling
price of the package shall bear on the outside of the package a
plain and conspicuous declaration of the price per single unit
of weight."
SECTION 67. A new section of the Weights and Measures
Act is enacted to read:
"[NEW MATERIAL] FEES--ADMINISTRATIVE PENALTIES.--
A. The following fees shall be collected by the
department and shall accompany the application for registration
or renewal of registration:
(1) an annual registration fee for each
service establishment, not to exceed three hundred dollars
($300);
(2) an annual registration fee for a service
technician, not to exceed one hundred dollars ($100); and
(3) a late renewal of registration fee of one
hundred dollars ($100), which is in addition to the annual
registration fee.
B. Money collected from fees shall be deposited
with New Mexico state university to administer the provisions
of the Weights and Measures Act.
C. Instead of or in addition to criminal penalties
provided for in the Weights and Measures Act, the department
may assess administrative penalties for violations of that act
or rules promulgated in accordance with that act. A fine shall
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not exceed five thousand dollars ($5,000) per violation and
shall be assessed as provided in Section 76-1-6 NMSA 1978."
SECTION 68. Section 57-17-18 NMSA 1978 (being Laws 1959,
Chapter 202, Section 26, as amended) is repealed and a new
Section 57-17-18 NMSA 1978 is enacted to read:
"57-17-18. [NEW MATERIAL ] OFFENSES AND PENALTIES--
WILLFUL AND REPEAT OFFENSES.--A person who, alone or through an
employee, agent or other person, willfully and knowingly or
repeatedly performs any of the acts specified in this section
is guilty of a misdemeanor and upon conviction shall be
punished by a fine of not to exceed ten thousand dollars
($10,000) or by imprisonment in the county jail for not more
than one year, or both:
A. use or have in the person's possession for the
purpose of using for any commercial purpose, sell, offer for
sale or hire or have in the person's possession for the purpose
of selling or hiring an incorrect weight or measure or any
device or instrument calculated to falsify any weight or
measure;
B. use or have in the person's possession for
current use in the buying or selling of any commodity or good
or for hire or award; in the computation of a basic charge or
payment for services rendered on the basis of weight or
measurement; in the determination of weight or measurement when
a charge is made for such determination; or a weight or measure
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that has not been sealed within the next preceding year by the
director or an inspector unless written notice has been given
to the director to the effect that the weight or measure is
available for examination or is due for reexamination, as the
case may be and unless specific written permission to use the
weight or measure has been received from the office of the
director;
C. dispose of a rejected or condemned weight or
measure in a manner contrary to law;
D. contrary to law, remove from a weight or measure
a tag, seal or mark placed by the director or an inspector;
E. sell or offer for sale less than the quantity
the person represents of a commodity, good or service;
F. take more than the quantity the person
represents of a commodity, good or service when, as a buyer,
the person furnishes the weight or measure by means of which
the amount of the commodity, good or service is determined;
G. keep for the purpose of sale, advertisement or
offer for sale or sell any commodity, good or service in a
condition or manner contrary to law; and
H. use in retail trade, except in the preparation
of packages put up in advance of sale and of medical
prescriptions, a weight or measure that is not so positioned
that its indications may be accurately read and the weighing or
measuring operation observed from some position that may
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reasonably be assumed by a customer."
SECTION 69. Section 57-17-19 NMSA 1978 (being Laws 1973,
Chapter 386, Section 18) is amended to read:
"57-17-19. INSPECTION FEES.--The board may establish
fees to recover the cost of performing services of inspection,
testing or calibrating weights, measures and commercial
weighing and measuring devices when such services are requested
by the person owning or using the weight, measure or device.
All fees shall be placed in an account with the business office
of New Mexico state university to be used for the enforcement
of [Chapter 76 NMSA 1953 ] the Weights and Measures Act and the
Weighmaster Act."
SECTION 70. Section 57-17-20 NMSA 1978 (being Laws 2021,
Chapter 98, Section 8) is amended to read:
"57-17-20. HOMEMADE FOOD ITEMS--EXEMPTION.--The
provisions of [Chapter 57, Article 17 NMSA 1978 ] the Weights
and Measures Act shall not apply to homemade food items
produced or sold pursuant to the Homemade Food Act."
SECTION 71. Section 57-18-1 NMSA 1978 (being Laws 1973,
Chapter 236, Section 1) is amended to read:
"57-18-1. SHORT TITLE.--[This act ] Chapter 57, Article
18 NMSA 1978 may be cited as the "Weighmaster Act"."
SECTION 72. Section 57-18-2 NMSA 1978 (being Laws 1973,
Chapter 236, Section 2, as amended) is amended to read:
"57-18-2. DEFINITIONS.--As used in the Weighmaster Act:
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[A. "weighmaster" means a natural person licensed
under the provisions of the Weighmaster Act;
B. "vehicle" means any device by which any
property, produce, commodity or article is transported;
C. "director" means the director of the state
department of agriculture;
D.] A. "board" means the board of regents of New
Mexico state university;
B. "department" means the New Mexico department of
agriculture;
C. "director" means the director of the department;
[E.] D. "public weighing" means the determination
of any weight upon which a sale is based or upon which a basic
charge or payment for services rendered is based when the
person making the weight determination is not a party to or an
agent of the party to the transaction upon which the weight is
based;
[F.] E. "third-party weighing" means public
weighing; [and]
F. "vehicle" means any device by which any
property, produce, commodity or article is transported;
G. "weighmaster" means a natural person licensed
under the provisions of the Weighmaster Act; and
[G.] H. "weight certificate" means a document in
the form of a certificate consecutively numbered and indicating
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the weight in accordance with the standards of weights and
measures set forth in [Sections 76-1-28 through 76-1-54 NMSA
1953] the Weights and Measures Act ."
SECTION 73. Section 57-18-7 NMSA 1978 (being Laws 1973,
Chapter 236, Section 7) is repealed and a new Section 57-18-7
NMSA 1978 is enacted to read:
"57-18-7. [NEW MATERIAL ] LICENSE FEES.--The board may
promulgate rules to provide for the collection of license fees;
provided that license fees shall not exceed three hundred
dollars ($300) for each weighmaster and one hundred dollars
($100) for each deputy weighmaster. If a complete application
for renewal of a license is not filed prior to the expiration
of the current license, the department may charge a late fee
not to exceed one hundred dollars ($100), which charge is in
addition to the annual license fee. Money collected pursuant
to the Weighmaster Act shall be deposited with New Mexico state
university to administer that act."
SECTION 74. Section 57-18-11 NMSA 1978 (being Laws 1973,
Chapter 236, Section 11) is amended to read:
"57-18-11. DEPUTY WEIGHMASTER.--[Except for the surety
bond requirement provided in Section 8 of the Weighmaster Act ]
The duties, qualifications and responsibilities of the deputy
weighmaster shall be the same as those of the weighmaster
provided in the Weighmaster Act. The deputy weighmaster shall
perform [his] the deputy weighmaster's duties in accordance
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with the same provisions of the Weighmaster Act applicable to
the weighmaster."
SECTION 75. A new section of the Weighmaster Act is
enacted to read:
"[NEW MATERIAL] ADMINISTRATIVE PENALTIES.--The department
may assess an administrative penalty not to exceed five
thousand dollars ($5,000) for each violation of the Weighmaster
Act or rules promulgated in accordance with that act and may
suspend, revoke or refuse to renew a license. Penalties shall
be assessed as provided in Section 76-1-6 NMSA 1978."
SECTION 76. Section 57-19-25 NMSA 1978 (being Laws 1993,
Chapter 98, Section 1) is amended to read:
"57-19-25. SHORT TITLE.--[This act ] Sections 57-19-25
through 57-19-37 NMSA 1978 may be cited as the "Petroleum
Products Standards Act"."
SECTION 77. Section 57-19-27 NMSA 1978 (being Laws 1993,
Chapter 98, Section 3, as amended) is amended to read:
"57-19-27. DEFINITIONS.--As used in the Petroleum
Products Standards Act:
A. "biodiesel" means a renewable, biodegradable,
mono alkyl ester combustible liquid fuel that is derived from
agricultural plant oils or animal fats and that meets American
society for testing and materials specification for biodiesel
fuel, B100, blend stock for distillate fuels;
B. "board" means the board of regents of New Mexico
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state university;
C. "dealer" means a dealer as defined by the
Special Fuels Supplier Tax Act;
D. "department" means the New Mexico department of
agriculture;
E. "diesel fuel" means any diesel-engine fuel used
for the generation of power to propel a motor vehicle;
F. "director" means the director of the New Mexico
department of agriculture;
G. "distributor" means a distributor as defined by
the Gasoline Tax Act;
H. "lubricating oil" means any oil used to
lubricate transmissions, gears or axles;
I. "motor fuel" means any liquid product used for
the generation of power in an internal combustion engine,
excluding liquified petroleum gases and aviation fuels;
J. "motor oil" means oil for use in lubricating
internal combustion engines;
[K. "person" means any natural person, firm,
partnership, association or corporation;
L.] K. "petroleum product" means motor fuel,
kerosene, lubricating oil, motor oil, anti-freeze or brake
fluid; [and
M.] L. "retailer" means any person who sells motor
fuel and delivers the motor fuel into the supply tanks of motor
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vehicles;
M. "service establishment" means a person that
installs, services, repairs or reconditions commercial weighing
and measuring devices solely under that person's ownership; and
N. "service technician" means a person employed by
a service establishment who installs, services, repairs or
reconditions commercial weighing or measuring devices ."
SECTION 78. Section 57-19-34 NMSA 1978 (being Laws 1993,
Chapter 98, Section 10) is repealed and a new Section 57-19-34
NMSA 1978 is enacted to read:
"57-19-34. [NEW MATERIAL ] REGISTRATION--RENEWAL--
SUSPENSION OR REVOCATION--PROHIBITION OF UNREGISTERED
ACTIVITIES.--
A. The board shall promulgate rules for the
registration of petroleum service establishments and service
technicians, including technician qualifications, registration
requirements, authority and responsibilities of registrants and
sufficient certified test standards.
B. Without registration, a service establishment or
service technician shall not place a device into commercial
service or remove official stickers or tags. Only devices
placed in service by a registered service technician or by the
department are legal for commercial use in New Mexico.
C. Prior to installing, servicing, repairing or
reconditioning a commercial weighing or measuring device in
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this state, each service establishment and each service
technician shall be registered with the department on a form
furnished by the department. The application shall be
accompanied by the applicable registration fee.
D. Registration shall be issued for a period of one
year and renewal applications shall be filed with the
department prior to the expiration of the current registration.
E. The director may suspend or revoke the
registration of a service establishment or service technician
on satisfactory evidence that the registrant has violated a
provision of the Petroleum Products Standards Act or rules
promulgated in accordance with that act. The department may
assess an administrative penalty not to exceed five thousand
dollars ($5,000) for each violation of the Petroleum Products
Standards Act or rules promulgated in accordance with that act.
Penalties shall be assessed as provided in Section 76-1-6 NMSA
1978."
SECTION 79. Section 57-19-35 NMSA 1978 (being Laws 1993,
Chapter 98, Section 11) is amended to read:
"57-19-35. FEES--MONEY COLLECTED.--[All money collected
pursuant to the provisions of the Petroleum Products Standards
Act]
A. The following fees shall be collected by the
department:
(1) annual service establishment registration,
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not to exceed three hundred dollars ($300);
(2) annual service technician registration,
not to exceed one hundred dollars ($100); and
(3) renewal late fee, not to exceed one
hundred dollars ($100).
B. Fees collected shall be deposited with the board
[of regents of New Mexico state university ] for use by the
department in carrying out the provisions of [that ] the
Petroleum Products Standards Act."
SECTION 80. Section 57-19-36 NMSA 1978 (being Laws 1993,
Chapter 98, Section 12, as amended) is repealed and a new
Section 57-19-36 NMSA 1978 is enacted to read:
"57-19-36. [NEW MATERIAL ] ADMINISTRATIVE AND CRIMINAL
PENALTIES.--
A. No person, alone, by the person's employee or
agent or as the employee or agent of another person, shall:
(1) violate the provisions of the Petroleum
Products Standards Act;
(2) violate a rule adopted pursuant to the
Petroleum Products Standards Act; or
(3) misrepresent a petroleum product as
meeting the standards of the Petroleum Products Standards Act.
B. The department may assess an administrative
penalty not to exceed five thousand dollars ($5,000) for each
violation of the Petroleum Products Standards Act or rules
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promulgated in accordance with that act. Penalties shall be
assessed as provided in Section 76-1-6 NMSA 1978."
SECTION 81. RECOMPILATION.--Sections 60-16-3 through
60-16-6 NMSA 1978 (being Laws 2018, Chapter 47, Sections 3
through 6) are recompiled as Sections 76-16A-3 through 76-16A-6
NMSA 1978.
SECTION 82. REPEAL.--
A. Sections 57-17-16 and 57-17-17 NMSA 1978 (being
Laws 1959, Chapter 202, Sections 23 and 25, as amended) are
repealed.
B. Section 57-18-8 NMSA 1978 (being Laws 1973,
Chapter 236, Section 8, as amended) is repealed.
C. Section 76-4-15 NMSA 1978 (being Laws 1973,
Chapter 366, Section 15) is repealed.
D. Sections 76-5-1 and 76-5-14 NMSA 1978 (being
Laws 1899, Chapter 56, Section 1 and Laws 1959, Chapter 195,
Section 5, as amended) are repealed.
E. Sections 76-9-6, 76-9-9 and 76-9-10 NMSA 1978
(being Laws 1975, Chapter 122, Sections 6, 9 and 10) are
repealed.
SECTION 83. EFFECTIVE DATE.--The effective date of the
provisions of this act is October 1, 2025.
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