43-1-101. Qualifications of commissioner.

The commissioner of agriculture, who is in control of the department of agriculture, shall be a practical farmer, actively identified with the agricultural interests of the state.

Acts 1923, ch. 7, § 30; Shan. Supp., § 373a73; Code 1932, §§ 296, 424; modified; T.C.A. (orig. ed.), § 43-102.

Compiler's Notes. For transfer of the division of forestry in the department of environment and conservation and its related functions and the administration of the Tennessee Forestry Act from the department of environment and conservation to the department of agriculture, effective July 1, 1991, see Executive Order No. 41 (February 4, 1991).

Cross-References. Animals and animal husbandry, title 44.

Chief executive officers of administrative departments, § 4-3-111.

Commissioner as head of department of agriculture, § 4-3-202.

Department of agriculture, creation, organization and powers of administrative

Department of environment and conservation, title 4, ch. 3, part 5.

Departments and divisions, title 4, ch. 3, part 2.

Farmers' extension work, § 5-9-104.

Food, drugs and cosmetics, title 53.

Natural areas preservation, title 11, ch. 14.

Powers of department of agriculture, § 4-3-203.

Revocation; denial or suspension of professional, driver and other licenses, to enforce child support obligations, title 36, ch. 5, part 7.

Salaries of Class 1 and Class 2 officers, § 8-23-101.

State forests, title 11, ch. 4.

Tennessee heritage conservation trust fund, title 11, ch. 7.

Textbooks. Tennessee Jurisprudence, 1 Tenn. Juris., Agriculture, § 3.

Law Reviews.

Disqualification of Administrative Officials for Bias (Robert N. Covington), 13 Vand. L. Rev. 712.

Comparative Legislation. Department and commissioner of agriculture:

Ala.  Code, § 2-2-1 et seq.

Ga. O.C.G.A. § 2-2-1 et seq.

Ky. Rev. Stat. Ann. § 246.010 et seq.

Miss.  Code Ann. § 69-1-1 et seq.

Mo. Rev. Stat. § 261.010 et seq.

N.C. Gen. Stat. § 106-1 et seq.

Va. Code § 3.1-8 et seq.

Collateral References. 3 Am. Jur. 2d Agriculture § 19 et seq.

3 C.J.S. Agriculture §§ 2, 6.

Agriculture 2.

43-1-102 — 43-1-105. [Repealed.]

Compiler's Notes. Former §§ 43-1-102 — 43-1-105 (Acts 1883, ch. 173, § 4; 1899, ch. 6, §§ 1, 2; Code 1932, §§ 425, 427-429; Acts 1949, ch. 38, § 1; C. Supp. 1950, § 425; Shan., §§ 315a1, 315a2, 317; T.C.A. (orig. ed.), §§ 43-103 — 43-106), concerning commissioner's salary, fees paid to state treasury, disbursements, and commercial fertilizers, were repealed by Acts 1988, ch. 878, §§ 9-12.

43-1-106. Duties of commissioner.

It is the duty of the commissioner of agriculture to determine, on the commissioner's own initiative, or upon request by the county legislative body of any county in this state, agricultural areas adjacent to state highways that are:

1. Row crop areas devoted primarily for the growth of corn, cotton, soy beans, vegetables, and other similar seasonal agricultural commodities; and
2. Grassland areas maintained and used primarily for grazing of livestock.

Acts 1875, ch. 13, § 4; Shan., § 318; Code 1932, § 430; modified; Acts 1961, ch. 22, § 1; impl. am. Acts 1965, ch. 82, § 8; impl. am. Acts 1971, ch. 90, § 1; impl. am. Acts 1971, ch. 131, § 1; Acts 1972, ch. 801, § 2; impl. am. Acts 1973, ch. 341, § 3; 1977, ch. 112, § 1; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 43-107; Acts 1988, ch. 878, § 13.

Compiler's Notes. For transfer of the division of forestry in the department of environment and conservation and its related functions and the administration of the Tennessee Forestry Act from the department of environment and conservation to the department of agriculture, effective July 1, 1991, see Executive Order No. 41 (February 4, 1991).

Cross-References. Aerial application of pesticides, § 43-8-302.

Anhydrous Ammonia Storage and Equipment Law, administering and enforcing, § 43-11-302.

Apiaries, rules and regulations regarding, § 44-15-121.

Baby chicks, powers and duties of commissioner, title 44, ch. 16.

Commercial feed law, administration, § 44-6-102.

Community gardening, powers and duties of commissioner, title 43, ch. 24.

Dairy law, powers and duties of commissioner, § 53-3-104.

Fertilizers and liming materials, administration of provisions, § 43-11-102.

Garbage feeding law, administration, § 44-2-403.

Insecticides, fungicides and rodenticides law, commissioner's powers and duties, §§ 43-8-104, 43-8-106, 43-8-109, 43-8-110, 43-8-112.

Inspector of apiaries, appointment, § 44-15-203.

Liming materials, rules and regulations, § 43-11-410.

Livestock dealers act, duties, title 44, ch. 10, part 2.

Pesticides, commercial aerial application of, powers and duties of commissioner, § 43-8-302.

Plant, animal life or virus, declaring to be pest, § 43-8-106.

Registration of pesticides, § 43-8-104.

Seed law, administration of, title 43, ch. 10, part 1.

Soybean promotion, powers and duties of commissioner, title 43, ch. 20.

Tennessee garbage feeding law, duties, title 44, ch. 2, part 4.

Tobacco regulations, commissioner's duties to promulgate and enforce, § 43-19-301.

Weighmasters, powers and duties of commissioner, title 47, ch. 26, part 10.

Weights and measures, commissioner's powers and duties, title 47, ch. 26, part 9.

Wetlands, title 11, ch. 14, part 4.

43-1-107. Annual planting and harvest seasons.

Except as provided in § 70-8-203, the recognized annual planting and harvest seasons for the state extend from January 1 to December 31 of each year.

Acts 2015, ch. 135, § 1.

Compiler's Notes. Former §§ 43-1-107 — 43-1-110 (Acts 1875, ch. 13, § 6; 1919, ch. 174, §§ 1, 2; 1921, ch. 176, § 1; Code 1932, §§ 431, 432, 442; Acts 1933, ch. 123, § 1; C. Supp. 1950, §§ 442, 442.1; Shan., § 325; Shan. Supp., §§ 318a1, 318a2; T.C.A. (orig. ed.), §§ 43-108 — 43-111), concerning collection of farm data, compensation of assessor, payment of appropriations, expenditure of funds, were repealed by Acts 1988, ch. 878, §§ 14-17.

Effective Dates. Acts 2015, ch. 135, § 2. April 16, 2015.

43-1-108. Audiovisual recordation of animal inspection permitted.

Unless otherwise prohibited by federal law, the owner of any animal that is subject to an inspection in this state for the purpose of determining compliance with any statutory or regulatory requirement shall be permitted to personally record such inspection by audiovisual means or designate an agent to record such inspection by audiovisual means.

Acts 2016, ch. 628, § 1.

Code Commission Notes.

Acts 2016, ch. 628, § 1 enacted this as a new § 43-1-102 but the section has been redesignated as § 43-1-108 by authority of the Code Commission.

Compiler's Notes. Former §§ 43-1-107 — 43-1-110 (Acts 1875, ch. 13, § 6; 1919, ch. 174, §§ 1, 2; 1921, ch. 176, § 1; Code 1932, §§ 431, 432, 442; Acts 1933, ch. 123, § 1; C. Supp. 1950, §§ 442, 442.1; Shan., § 325; Shan. Supp., §§ 318a1, 318a2; T.C.A. (orig. ed.), §§ 43-108 — 43-111), concerning collection of farm data, compensation of assessor, payment of appropriations, expenditure of funds, were repealed by Acts 1988, ch. 878, §§ 14-17.

Effective Dates. Acts 2016, ch. 628, § 2. March 22, 2016.

43-1-109. Primary inspection agency for grist mills.

The department of agriculture, in its role as the primary food manufacturing inspection agency for this state, shall be the primary inspection agency for grist mills that are located in this state.

Acts 2016, ch. 764, § 1.

Effective Dates. Acts 2016, ch. 764, § 2. April 19, 2016.

43-1-110. [Reserved.]

Compiler's Notes. Former §§ 43-1-107 — 43-1-110 (Acts 1875, ch. 13, § 6; 1919, ch. 174, §§ 1, 2; 1921, ch. 176, § 1; Code 1932, §§ 431, 432, 442; Acts 1933, ch. 123, § 1; C. Supp. 1950, §§ 442, 442.1; Shan., § 325; Shan. Supp., §§ 318a1, 318a2; T.C.A. (orig. ed.), §§ 43-108 — 43-111), concerning collection of farm data, compensation of assessor, payment of appropriations, expenditure of funds, were repealed by Acts 1988, ch. 878, §§ 14-17.

43-1-111. Promotion and enhancement of equine industry.

The commissioner of agriculture shall employ at least one (1) agricultural marketing specialist whose primary duty shall be the provision and coordination of such technical assistance, support, and encouragement as may be needed to promote and enhance development of Tennessee's equine industry. The commissioner shall collect, publish, and distribute statistics relating to equine production and marketing activities and opportunities within the state. The commissioner shall provide such other informational services as may be needed to notify the state's equine industry concerning the financial, managerial, marketing, regulatory, and administrative aspects of the horse industry in Tennessee and in other states.

Acts 1988, ch. 796, § 1.

43-1-112. Nursery stock production, sales and marketing.

1. The commissioner of agriculture shall employ at least one (1) production and marketing specialist whose primary duty shall be the provision and coordination of technical assistance, support, and encouragement needed to promote and enhance the statewide development of nursery stock production and sales. At least once each year, the commissioner shall collect, publish, and distribute statistics relating to nursery stock production, marketing activities, and opportunities across the state. The commissioner shall provide other information to notify Tennesseans of the financial, managerial, marketing, regulatory, and administrative aspects of nursery stock production.
2. As used in this section, “nursery stock production” means growing or propagating ornamental trees, shrubs, and other perennial plants or parts of ornamental trees, shrubs, or plants for sale on a commercial basis.
3. To the extent feasible within existing budgetary resources, the University of Tennessee extension shall assist and cooperate with the department of agriculture in the provision and coordination of technical assistance, statistical, marketing and other information, support and encouragement necessary to promote and enhance the statewide development of nursery stock production.

Acts 1993, ch. 166, §§ 1, 2; 2004, ch. 517, § 3.

Compiler's Notes. Acts 2004, ch. 517, § 15 provided that the University of Tennessee extension service shall spend no funds beyond those currently budgeted to accelerate the replacement of signs, letterhead, and business cards on account of the provisions of the act.

43-1-113. Definition of agriculture.

1. The definition of agriculture as set forth in subsection (b) shall be applicable to the term wherever it appears in the code, unless a different definition is specifically made applicable to the part, chapter, or section in which the term appears.
2. 1. “Agriculture” means:
      1. The land, buildings and machinery used in the commercial production of farm products and nursery stock;
      2. The activity carried on in connection with the commercial production of farm products and nursery stock;
      3. Recreational and educational activities on land used for the commercial production of farm products and nursery stock; and.
      4. Entertainment activities conducted in conjunction with, but secondary to, commercial production of farm products and nursery stock, when such activities occur on land used for the commercial production of farm products and nursery stock.
   2. As used in this definition of agriculture, the term “farm products” means forage and sod crops; grains and feed crops; dairy and dairy products; poultry and poultry products; livestock, including breeding and grazing; fruits; vegetables; flowers; seeds; grasses; forestry products; fish and other aquatic animals used for food; bees; equine; and all other plants and animals that produce food, feed, fiber or fur.
   3. As used in this definition of agriculture, the term “nursery stock” means all trees, shrubs, or other plants, or parts of trees, shrubs or other plants, grown or kept for, or capable of, propagation, distribution or sale on a commercial basis.

Acts 2005, ch. 19, § 2; 2014, ch. 581, § 2.

Amendments. The 2014 amendment added (b)(1)(D).

Effective Dates. Acts 2014, ch. 581, § 5. March 28, 2014.

Cross-References. Definition of terms used in code, § 1-3-105.

Attorney General Opinions. County zoning of buildings used as residences by farmers and farm workers. OAG 14-79, 2014 Tenn. AG LEXIS 82 (9/4/14).

The definition for “agriculture” at T.C.A. §§ 1-3-105(2)(A) and 43-1-113(b)(1) is applicable to the word “agriculture” as used in the definition of “Farm Property” in T.C.A. § 67-5-501(3).  OAG 17-30, 2017 Tenn. AG LEXIS 29 (4/17/2017).

The definition of “agriculture” in T.C. A. §§ 1-3-105(a)(2)(A) and 43-1-113(b)(1) applies  in determining the meaning of “agricultural” as used in T.C.A. § 5-1-118(b), T.C.A. § 5-1-122, and T.C.A. § 13-7-114. AG LEXIS 35 (7/26/2017).

43-1-114. Definition of livestock — Applicability.

1. The definition of livestock as set forth in subsection (b) shall be applicable to the term wherever it appears in the code, unless a different definition is specifically made applicable to the part, chapter, or section in which the term appears or unless the context otherwise requires.
2. “Livestock” means all equine as well as animals that are being raised primarily for use as food or fiber for human utilization or consumption including, but not limited to, cattle, sheep, swine, goats, and poultry.

Acts 2014, ch. 568, § 2.

Effective Dates. Acts 2014, ch. 568, § 6. March 21, 2014.

Part 2
Divisions of Department [Repealed or Transferred]

43-6-101. Short title.

This part shall be known and may be cited as the “Tennessee Plant Pest Act.”

Acts 1955, ch. 8, § 1; T.C.A., § 43-515; Acts 1997, ch. 70, § 1.

Cross-References. Commercial aerial application of pesticides, title 43, ch. 8, part 3.

Insecticides, fungicides and rodenticides, title 43, ch. 8, part 1.

Pest control board, § 62-21-104.

Pest control compact, title 43, ch. 6, part 3.

Pest control operators, title 62, ch. 21.

Pest control operators, title 62, ch. 21.

Comparative Legislation. Plant pest control:

Ala.  Code § 2-28-1 et seq.

Ark.  Code § 2-16-101 et seq.

Ga. O.C.G.A. § 2-7-1 et seq.

Ky. Rev. Stat. Ann. § 249.010 et seq.

Miss.  Code Ann. § 69-25-1 et seq.

Mo. Rev. Stat. § 263.010 et seq.

N.C. Gen. Stat. § 106-419 et seq.

Va. Code § 3.1-188.20 et seq.

Collateral References. 3 Am. Jur. 2d Agriculture § 42 et seq.

Validity of statutes, ordinances, or regulations for protection of vegetation against disease or infection. 70 A.L.R.2d 852.

Agriculture 9.2.

43-6-102. Part definitions.

As used in this part and the rules, regulations or orders made pursuant to this part, unless the context otherwise requires:

1. “Agent” means any person soliciting orders for or selling or distributing nursery stock or other plants under the partial or full control of a nursery owner or dealer;
2. “Commissioner” means the commissioner of agriculture or the commissioner's duly authorized agents;
3. “Dealer” means any person not a grower of nursery stock or other plants who buys or otherwise acquires nursery stock or other plants for the purpose of reselling or otherwise distributing nursery stock or other plants independently of any control of the grower;
4. “Florist” means an establishment whose primary business is the retail sale of fresh cut flowers. A florist shall not be considered a dealer; provided, that the sales of rooted plant material sold by a florist shall be those used to enhance fresh cut flower arrangements, or that are intended to be grown and maintained indoors and that are not intended to be planted in the landscape;
5. “Greenhouses” means any glass house, screen house or other structure in which plants are grown, kept, or propagated for sale or distribution;
6. “Insect pests” means insects or closely related organisms in any stage of development injurious to the agricultural, horticultural, silvicultural, or other interests of the state;
7. “Nursery” means any grounds or premises on or in which nursery stock is grown, kept or propagated for sale or distribution;
8. “Nursery farmer” means any person engaged in the practice of growing or propagating nursery stock for sale, which person shall for all statutory purposes be deemed to be a farmer;
9. “Nursery stock” means all trees, shrubs, or other perennial plants or parts of trees, shrubs, or other perennial plants grown or kept for, or capable of propagation, distribution, or sale on a commercial basis;
10. “Nursery worker” means all persons employed on a nursery or property used in conjunction with a nursery, for the purpose of cultivating the soil, growing and propagating the stock, or for duties necessary for the grading, fumigating, cutting, packing, and the like, of the plants on the nursery, or the property used in conjunction with the nursery and prior to their entry into channels of commerce, shall be recognized for all statutory purposes as “farm laborers”; and
11. “Plant diseases” means infectious or transmissible diseases of plants, and their pathogens, including parasitic plants in any stage of development.

Acts 1955, ch. 8, § 2; 1959, ch. 78, § 1; 1959, ch. 144, § 1; T.C.A., § 43-516; Acts 1997, ch. 70, § 2; 1998, ch. 636, § 1.

43-6-103. [Repealed.]

Compiler's Notes. Former § 43-6-103 (Acts 1955, ch. 8, § 3; T.C.A., § 43-517), concerning the director and the director's appointment and qualifications, was repealed by Acts 1997, ch. 70, § 3.

43-6-104. Rules and regulations — Force and effect.

The commissioner has the power to promulgate such rules and regulations under the authority of this part as may be necessary to prevent the further introduction of insect pests, pest plants, or plant diseases into the state, and to eradicate or suppress and control such insect pests, pest plants, or plant diseases occurring therein. Rules and regulations established under this part shall have the force and effect of law.

Acts 1955, ch. 8, § 4; T.C.A., § 43-518; Acts 1995, ch. 330, § 1; 1997, ch. 70, § 4.

43-6-105. Uniform Administrative Procedures Act applicable — Exception for quarantine procedure.

Administration of this part shall comply with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, except that an order of quarantine need not be treated as a contested case prior to receipt by the commissioner of a petition to review the quarantine. Petitions shall be heard by the commissioner as soon as reasonably possible.

Acts 1955, ch. 8, § 5; 1959, ch. 78, § 2; 1976, ch. 806, § 1(79); T.C.A., § 43-519; Acts 1980, ch. 472, § 2.

43-6-106. Duties of commissioner — Powers.

It is the duty of the commissioner to protect the agricultural, silvicultural and horticultural or other interests of the state from insect pests, pest plants, or plant diseases and to that end the commissioner is vested with power and authority to:

1. Inspect or cause to be inspected by duly authorized agents or employees, plants, plant products, or other articles or things that may, in the commissioner's opinion, be capable of disseminating or carrying insect pests, pest plants, or plant diseases. For this purpose, the commissioner has the power to go upon any property, including private property, posted or otherwise, and open any bundle, package, or other container containing, or thought to contain, plants, plant products, or other articles or things capable of transmitting or carrying insect pests, pest plants, or plant diseases;
2. Supervise or cause the treatment, cutting, or destruction of plants; treat or supervise treatment of land and soil; require the elimination of specific crops and prohibit the planting of those crops in designated areas for stipulated periods; regulate planting dates, harvest dates, and other cultural practices in designated areas; require destruction, treatment, other handling of crop residues and debris in designated areas; otherwise regulate land use in designated areas, when any or all of these measures are necessary to prevent the dissemination or to control or to eradicate insect pests, pest plants, or plant diseases and when rules and regulations therefor have been duly promulgated;
3. Inspect or cause to be inspected all nurseries, greenhouses, or other plant growing establishments of whatever kind in the state at such intervals as the commissioner may deem best and promulgate such rules and regulations governing nurseries, greenhouses and other plant growing establishments and the movement of nursery stock, plants, and plant propagating material as the commissioner may deem necessary in the eradication, control or prevention of spread of insect pests, pest plants, or plant diseases;
4. Promulgate rules and regulations to govern the sale and distribution of nursery stock, other plants or plant propagating material by dealers and agents;
5. Promulgate rules and regulations under which nursery stock, other plants, plant propagating material, and plant products may be brought into this state from other states, territories, and foreign countries;
6. Promulgate such rules and regulations with reference to plants and plant products while in transit through this state as may be deemed necessary to prevent the introduction into and dissemination within this state of insect pests, pest plants, or plant diseases;
7. Require of any person, firm or corporation having plants, plant products, or other articles or things likely to carry insect pests, pest plants, or plant diseases, in the possession of such person, firm or corporation to give full information as to the origin and source of such plants, plant products, or other articles or things. It is a Class A misdemeanor for such person, firm or corporation to refuse to give such information if able to do so;
8. Declare a dangerous insect pest, pest plant, or plant disease to be a public nuisance as well as any plant or other thing infested or infected with a dangerous insect pest, pest plant, or plant disease or that has been exposed to infestation or infection and therefore likely to communicate infestation or infection;
9. Declare a quarantine against any area, place, nursery, forest, orchard, farm lot, or other boundary of whatever size or description, or any county or counties within this state, other states, territories, foreign countries or portion thereof in reference to dangerous insect pests, pest plants, or plant diseases and prohibit the movement within the state or any part of the state or the introduction into this state from other states, territories, or foreign countries, of all plants, plant propagating material, plant products, or other articles or things including soil from quarantined places or areas that are likely to carry dangerous insect pests, pest plants, or plant diseases if the quarantine is determined, after due investigation by the commissioner to be necessary in order to protect the agricultural, horticultural, and silvicultural, or other interests of this state. In such cases, the quarantine may be made absolute, or rules and regulations may be adopted prescribing the method and manner under which the prohibited articles may be moved into or within, sold, or otherwise disposed of in this state;
10. Intercept and inspect while in transit or after arrival at destination, all plants, plant propagating material, plant products, or other things likely to carry insect pests, pest plants, or plant diseases being moved in this state, and if upon inspection, such plants, plant propagating material, plant products, or other things are found to be infested or infected with an injurious insect pest, pest plant, or plant disease, or if such material is believed to be likely to communicate or transmit an injurious insect pest, pest plant, or plant disease or is being transported in violation of any of the rules and regulations established pursuant to and under the authority of this part, then the plants, plant propagation material, plant products or other things may be treated when necessary, at the expense of the owners, and released, returned to the sender, or destroyed, the disposition to be determined under rules and regulations to be promulgated by the commissioner;
11. Carry on investigations relating to methods of control, eradication, and/or prevention of spread of insect pests, pest plants, or plant diseases, and for that purpose may rent, lease, or purchase the necessary facilities, in accordance with existing state law pertaining to such transactions; and
12. Apply to courts of competent jurisdiction for writs of injunction and institute criminal proceedings for the enforcement of this part. It is the duty of the several district attorneys general to represent the commissioner when called upon to do so.

Acts 1955, ch. 8, § 6; 1959, ch. 78, § 3; T.C.A., § 43-520; Acts 1989, ch. 591, § 1; 1995, ch. 330, § 2; 1997, ch. 70, § 5.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477.

43-6-107. Appointment of assistants — Cooperative agreements — Official publication.

The commissioner has the power and authority to:

1. Purchase all necessary materials, supplies, office, laboratory, and field equipment and other things, in the manner prescribed by law, and make such other expenditures as may be essential and necessary in carrying out this part within the limits of the amount appropriated by law;
2. Appoint, in accordance with any applicable rules or regulations of the department of human resources, such assistants, inspectors and other employees as may be required and prescribe their duties, and delegate to the assistants, inspectors and other employees such powers and authority as may be deemed proper within the limits of the power and authority conferred upon the commissioner by this part;
3. Enter into cooperative arrangements with any person, municipality, county and other departments of this state, and boards, officers and authorities of other states and the United States for inspection with reference to insect pests, pest plants, or plant diseases and for the control and eradication of insect pests, pest plants, or plant diseases, and to contribute a just proportionate share of the expenses incurred under such arrangements; and
4. Publish, at intervals to be determined by the commissioner, an official organ of the department of agriculture for public distribution and may from time to time publish and distribute to the public such further information as may be deemed necessary or in the public interest.

Acts 1955, ch. 8, § 7; T.C.A., § 43-521; Acts 1995, ch. 330, § 3; 1997, ch. 70, § 6.

Compiler's Notes. Pursuant to Acts 2007, ch. 60, references to the department of personnel were changed to the department of human resources, effective April 24, 2007.

43-6-108. Promulgation of rules — Certified copies in evidence.

All rules and regulations made pursuant to this part shall be promulgated as provided by law; provided, that in case of emergency where it is necessary to place a quarantine to take effect immediately, promulgation may be made by proclamation of the commissioner. Printed copies of all acts, rules, regulations, quarantines, or other notices, which shall be published by the commissioner under authority granted by this part, shall be admitted as sufficient evidence of such acts, rules, regulations, quarantines or other notices in all courts and on all occasions whatsoever; provided, that the correctness of such copies be certified to by the commissioner.

Acts 1955, ch. 8, § 8; T.C.A., § 43-522; Acts 1997, ch. 70, § 7.

43-6-109. Pests and diseases — Special permits.

The introduction into this state of any insect pests, pest plants, or plant diseases, except under a special permit issued by the commissioner, is prohibited.

Acts 1955, ch. 8, § 9; T.C.A., § 43-523; Acts 1995, ch. 330, § 4; 1997, ch. 70, § 8.

43-6-110. Isolation of plants and products — Inspection.

Any person, including common carriers, who shall knowingly receive plants, plant products, or other articles or things sold, given away, carried, shipped, or delivered for carriage or shipment within the state, as to which this part and the rules and regulations promulgated pursuant to this part have not been complied with, shall be required to isolate and hold the plant, plant product, or other article or thing, unopened and unused, subject to such inspection or other disposition as may be provided by the commissioner.

Acts 1955, ch. 8, § 10; T.C.A., § 43-524; Acts 1997, ch. 70, § 9.

43-6-111. Liability of principal.

In construing and enforcing this part, the act, omission or failure of any official, agent, or other person acting for, or employed by, any association, partnership, corporation or other principal within the scope of such person's employment or office shall in every case be deemed the act, omission, or failure of the association, partnership, corporation or other principal as well as that of the individual.

Acts 1955, ch. 8, § 11; T.C.A., § 43-525.

43-6-112. Violations — Penalty.

Any person who violates any provision or requirement of this part or of the rules and regulations made under this part or of any order or notice given pursuant to this part, or who forges, counterfeits, destroys, or wrongfully or improperly, uses any certificate provided for in this part or in the rules and regulations made pursuant to this part, or who interferes with or obstructs the commissioner or any of the commissioner's duly designated employees or agents in the performance of the person's duties, commits a Class C misdemeanor.

Acts 1955, ch. 8, § 12; T.C.A., § 43-526; Acts 1989, ch. 591, § 113; 1997, ch. 70, § 10.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Cited: State v. Russell, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 161 (Tenn. Crim. App. Mar. 15, 2012).

43-6-113. Establishment of fees.

1. A nematode sample analysis fee shall be set by rule pursuant to § 43-1-703.
2. Nursery stock or other plant material plant dealer certificate fees shall be set by rule pursuant to § 43-1-703.
3. Florist certificate fees shall be set by rule pursuant to § 43-1-703.
4. The fee for phytosanitary certificates shall be equivalent to United States department of agriculture, animal and plant health inspection service fees.
5. The department shall have no authority under this section to assess the greenhouse plant certification fee, or any other license fee or plant certification fee established by this part against:
   1. Any person engaged in the production of tobacco seedlings; or
   2. Any farmer who produces and sells plants or seedlings in connection with the person's farming operations, but who is not primarily engaged in the business of producing and selling plants or seedlings, as determined by the commissioner.

Acts 2015, ch. 485, § 4.

Effective Dates. Acts 2015, ch. 485, § 41. July 1, 2015; May 20, 2015, for the purpose of promulgating rules.

Part 2
Eradication of Johnson Grass

43-8-101. Short title.

This part and part 2 of this chapter shall be known and may be cited as the “Tennessee Insecticide, Fungicide, and Rodenticide Act.”

Acts 1951, ch. 150, § 1 (Williams, § 6808.7); T.C.A. (orig. ed.), § 43-701; Acts 1980, ch. 539, § 1.

Cross-References. Commercial aerial application of pesticides, title 43, ch. 8, part 3.

Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 135 et seq.

Hazardous chemical right to know law, title 50, ch. 3, part 20.

Hazardous substances, title 68, ch. 131.

Hazardous waste management, title 68, ch. 212.

Pest control compact, title 43, ch. 6, part 3.

Pest control operators, regulation and licensing, title 62, ch. 21.

Law Reviews.

Torts — Products Liability — Cattle Killed by Weedicide, 24 Tenn. L. Rev. 1066.

Comparative Legislation. Insecticides, fungicides and rodenticides:

Ala.  Code § 2-27-1 et seq.

Ark.  Code § 2-16-401 et seq.

Ga. O.C.G.A. § 2-7-1 et seq.

Ky. Rev. Stat. Ann. § 217.541 et seq.

Miss.  Code Ann. § 69-23-1 et seq.

Mo. Rev. Stat. § 263.269 et seq.

N.C. Gen. Stat. § 143-434 et seq.

Va. Code § 3.1-249.27 et seq.

Collateral References. 61A Am. Jur. 2d Pollution Control § 293 et seq.

3 C.J.S. Agriculture § 95-100.

Liability of manufacturer or seller for injury caused by animal feed or medicines, crop sprays, fertilizers, insecticides, rodenticides, and similar products. 12 A.L.R.4th 462, 29 A.L.R.4th 1045.

Agriculture 1, 8, 9.

43-8-102. Part definitions.

As used in this part and part 2 of this chapter, unless the context otherwise requires:

1. “Active ingredient” means:
   1. In the case of a pesticide other than a plant regulator, defoliant or desiccant, an ingredient that will prevent, destroy, repel or mitigate;
   2. In the case of a plant regulator, an ingredient that, through physiological action, will accelerate or retard the rate of growth or rate of maturation or otherwise alter the behavior of plant growth;
   3. In the case of a defoliant, an ingredient that will cause the leaves or foliage to drop from a plant;
   4. In the case of a desiccant, an ingredient that will artificially accelerate the drying of plant tissue; and
   5. In the case of a spray adjuvant, any ingredient that will act as a functioning agent;
2. “Adjuvant” means any substance that, when added to a pesticide, is intended to aid, modify or enhance its effectiveness by its properties of serving as a wetting agent, detergent, spreading agent, synergist, deposit builder, adhesive, surfactant, emulsifying agent, deflocculating agent, water modifier, or similar agent, with or without toxic properties of its own, and when sold in a package or container separate from that of the pesticide with which it is to be used;
3. “Adulterated” means a condition wherein strength or purity of a pesticide falls below the professed standard of quality as expressed on labeling under which it is sold, or if any substance has been substituted wholly or in part for the pesticide, or if any valuable constituent thereof has been wholly or in part abstracted;
4. “Antidote” means the most practical immediate treatment in case of poisoning and includes first aid treatment;
5. “Commissioner” means the commissioner of agriculture;
6. “Inert ingredient” means an ingredient that is not an active ingredient;
7. “Ingredient statement” means a statement of the name and percentage of each active ingredient, together with the total percentage of all inert ingredients in the pesticide;
8. “Label” means the written, printed or graphic matter on or attached to a pesticide, or the immediate container thereof and the outside container or wrapper of the retail package, if any there be, of the pesticide;
9. “Labeling” means all labels and other written, printed or graphic matter:
   1. Upon the pesticide or any of its containers or wrappers;
   2. Accompanying the pesticide at any time; or
   3. To which reference is made on the label or literature accompanying the pesticide, except when accurate, non-misleading reference is made to current official publications of the state experiment station, the state institute of agriculture, the Tennessee department of agriculture, the department of environment and conservation, or similar federal institutions or other official agencies of this state or other states when such agencies are authorized by law to conduct research in the field of pesticides;
10. “Misbranded” means a condition as to a pesticide, wherein:
    1. Its labeling bears any statement, design or graphic representation relative to the pesticide, or to its ingredients, that is false or misleading in any particular;
    2. It is an imitation of or is offered for sale under the name of another pesticide;
    3. Advertisement by any means is misleading in any particular;
    4. The labeling accompanying the pesticide does not contain directions for use that are necessary and when complied with would be adequate to protect health and the environment;
    5. The label does not bear an ingredient statement that is displayed on the outside of the immediate container and cannot be easily read as the container is presented or displayed under customary conditions of purchase;
    6. Any word, statement or other information required by or under authority of this part and part 2 of this chapter to appear on the label or labeling is not as prominently displayed as other material on the label or labeling;
    7. When used as directed or in accordance with commonly recognized practice, it is injurious to humans or other vertebrate animals or vegetation, except weeds, to which it is applied, or to the person applying the pesticide;
    8. The label does not contain a warning or caution statement that may be necessary and if complied with is adequate to protect health and the environment;
    9. The label does not bear the registration number assigned in connection with its registration;
    10. The labeling does not contain a statement of the use classification under which the product is registered; or
    11. In the case of a plant regulator, defoliant, or desiccant when used as directed, it is injurious to health and the environment; provided, that physical or physiological effects on plants or parts thereof shall not be deemed to be injurious when this is the purpose for which the plant regulator, defoliant, or desiccant was applied, in accordance with label claims and recommendations;
11. “Person” means any individual, partnership, association, corporation or organized group of persons whether incorporated or not;
12. “Pesticide” means any substance or mixture of substances or chemical intended for defoliating or desiccating plants or for preventing, destroying, repelling, or mitigating any insects, rodents, fungi, bacteria, weeds or other forms of plant or animal life the commissioner shall declare to be a pest. This includes, but is not limited to, insecticides, fungicides, bactericides, herbicides, desiccants, defoliants, plant regulators, adjuvants or nematocides;
13. “Registrant” means the person registering any pesticide pursuant to this part and part 2 of this chapter; and
14. “Use in a manner inconsistent with labeling” as to a pesticide means any use of a registered pesticide in a manner not permitted by its labeling, except that “use in a manner inconsistent with labeling” does not include:
    1. Applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling;
    2. Applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless federal requirements demand that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling;
    3. Employing any method of application not prohibited by the labeling;
    4. Mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited on the labeling; or
    5. Any other use otherwise inconsistent but specifically permitted under federal law.

Acts 1951, ch. 150, § 2 (Williams, § 6808.8); 1961, ch. 12, § 1; 1977, ch. 65, § 1; T.C.A. (orig. ed.), § 43-702; Acts 1980, ch. 539, § 2; 1992, ch. 693, § 1; 1996, ch. 805, §§ 1-3.

Cross-References. Agricultural production inputs, title 43, ch. 31.

43-8-103. Pesticides — Prohibitions as to sale or transportation.

1. It is unlawful for any person to distribute, sell, or offer for sale within the state of Tennessee, or deliver for transportation or transport in intrastate commerce or between points within this state through any point outside this state any of the following:
   1. Any pesticide that is not registered pursuant to § 43-8-104, or any pesticide where claims or directions for use differ in substance from the representations made in connection with its registration or if the composition of the pesticide differs from its composition as represented in connection with its registration;
   2. Any pesticide, unless it is in the registrant's or the manufacturer's unbroken immediate container, and there is affixed to such container, and to any outside container or wrapper of the retail package where required information on the immediate container cannot be clearly read, a label bearing:
      1. The name and address of the manufacturer, registrant or person for whom manufactured;
      2. The name, brand or trademarks under which the article is sold; and
      3. The net weight or measure of the contents subject, however, to such reasonable variations as the commissioner may permit;
   3. Any pesticide that contains any substance or substances in quantities highly toxic to humans, determined as provided in § 43-8-106, unless the label bears, in addition to any other matter required by this part and part 2 of this chapter:
      1. The skull and crossbones;
      2. The word “poison” prominently, in red on a background of distinctly contrasting color; and
      3. A statement of an antidote for the pesticide; or
   4. Any pesticide that is adulterated or misbranded.
2. A violation of this section is a Class A misdemeanor.

Acts 1951, ch. 150, § 3 (Williams, § 6808.9); 1975, ch. 239, § 1; T.C.A. (orig. ed.), § 43-703; Acts 1980, ch. 539, § 3; 1989, ch. 591, § 113; 2004, ch. 464, § 1.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

43-8-104. Registration of products — Annual renewal — Labeling — Statement filed by registrant — Registration of brand or grade — License to sell registered brands — Refusal or cancellation of registration.

1. Every pesticide that is distributed, sold or offered for sale within this state or transported within this state shall be registered with the commissioner, except as provided below. The commissioner may register and permit the sale of any pesticide that has been duly registered under the federal Insecticide, Fungicide and Rodenticide Act, but products so registered shall be subject to the registration fees provided for herein, and to all other provisions of this part and part 2 of this chapter. All pesticide products shall be registered annually and their registration shall expire on June 30, following the date of issuance.
2. Products having the same formula and manufactured by the same person or firm, where the labeling contains the same claims, and the labels bear a designation identifying the products as the same pesticide, may be registered as a single pesticide, with additional names and labels added by a supplemental statement during the registration term. Within the discretion of the commissioner or the commissioner's authorized representative, a change in the labeling or formulas of a pesticide may be made within the registration term without requiring a reregistration of the product; provided, that the name of the item is not changed, and that no change is made that lowers the efficacy of the product.
3. The registrant shall file with the commissioner a statement including:
   1. The name and address of the registrant and the name and address of the person whose name will appear on the label, if other than the registrant;
   2. The name of the pesticide;
   3. A complete copy of the labeling accompanying the pesticide and a statement of all claims made and to be made for it including directions for use; and
   4. In the case of adjuvants, surfactants, emulsifiers, wetting agents, and other materials included as adjuvants that have nonionic surfactants as the principal agent, the ingredient statement on the label must show the percentage of the active adjuvant at least by the generic chemical name and, further, that the specific chemical name identifying the hydrophobic and hydrophilic portions of the molecule and the ratio of the same must be given on a data sheet that shall accompany the label when application for registration is made, the latter being necessary in order that the chemical content may be determined by the department of agriculture, division of technical services, for regulatory purposes. In the case of products having cationic and anionic surfactants as the principal agent, the chemical names of those materials must be used in the ingredient statement on the label together with the percentage contents of the principal surfactants. In the case of products not involving hydrophobic and hydrophilic portions of the molecule such as in the case of most synergists and other nonsurfactant adjuvants, the chemical name of the material must be used in the ingredient statement on the label.
4. If it does not appear to the commissioner that the article is such as to warrant the proposed claims for it or if the article and its labeling and other material required to be submitted do not comply with this part and part 2 of this chapter, the commissioner shall notify the registrant of the manner in which the article, labeling, or other material required to be submitted fail to comply with this part and part 2 of this chapter so as to afford the registrant an opportunity to make the necessary corrections.
5. The commissioner may refuse to register or may revoke or suspend any or all registrations where the registrant is found to have violated any provision of this part and part 2 of this chapter, including rules promulgated under authority of this part and part 2 of this chapter. Any such proceedings shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
6. Registration shall not be required of a pesticide that is merely shipped from one plant or warehouse in this state to another for use as a constituent in a registered pesticide. Neither shall registration be required of a pesticide distributed under an experimental use permit issued by the federal environmental protection agency.
7. Registration shall be maintained for one (1) year after the effective date upon which a registrant ceases to distribute a pesticide within this state, unless the registrant can offer reasonable proof that no quantities of the pesticide remain commercially available.
8. Pesticide product registration fees shall be set by rule pursuant to § 43-1-703.

Acts 1951, ch. 150, § 5 (Williams, § 6808.11); 1961, ch. 12, § 2; 1975, ch. 239, § 2; T.C.A. (orig. ed.), § 43-706; Acts 1980, ch. 539, § 6; 1985, ch. 195, § 1; 1994, ch. 960, § 7; 1996, ch. 805, § 4; T.C.A. § 43-8-106; Acts 2015, ch. 485, § 6.

Compiler's Notes. Former § 43-8-104, concerning the defacing or destroying label, refusing information, false guaranty, revelation of formula, noncooperation with officials prohibited, was transferred to § 43-8-105 in 2000.

The federal Insecticide, Fungicide and Rodenticide Act referred to in this section is compiled in 7 U.S.C. § 136 et seq.

Amendments. The 2015 amendment added (h).

Effective Dates. Acts 2015, ch. 485, § 41. July 1, 2015; May 20, 2015, for the purpose of promulgating rules.

Cross-References. Inspection fees, § 43-1-703.

43-8-105. Defacing or destroying label, refusing information, false guaranty, revelation of formula, noncooperation with officials prohibited.

It is unlawful:

1. For any person to detach, alter, deface, or destroy, in whole or in part, any label or labeling provided for in this part and part 2 of this chapter or the rules and regulations promulgated hereunder, or to add any substance to, or take any substance from, a pesticide in a manner that may defeat the purposes of this part and part 2 of this chapter;
2. For any manufacturer, distributor, dealer, carrier, or other person to refuse, upon written request specifying the nature or kind of pesticide to which such request relates, to furnish to or permit any person designated by the commissioner to have access to and to copy such records of business transactions as may be essential in carrying out the purposes of this part and part 2 of this chapter;
3. For any person to give a guaranty or undertaking provided for in § 43-8-108 that is false in any particular, except that a person who receives and relies upon a guaranty authorized under § 43-8-108 may give a guaranty to the same effect, which guaranty shall contain, in addition to such person's own name and address, the name and address of the person residing in the United States from whom such person received the guaranty or undertaking;
4. For any person to use for the person's own advantage or to reveal, other than to the commissioner, or officials or employees of the state of Tennessee, or officials or employees of the United States department of agriculture, or other federal agencies, or to the courts in response to a subpoena, or to physicians, and in emergencies to pharmacists and other qualified persons, for use in the preparation of antidotes, in accordance with such directions as the commissioner may prescribe, any information relative to formulas of products acquired by authority of § 43-8-104;
5. For any person to oppose or interfere in any way with the commissioner or the commissioner's duly authorized agents in carrying out the duties imposed by this part and part 2 of this chapter;
6. For any person to handle, transport, store, display or distribute pesticides in such a manner as to endanger health and the environment or to endanger food, feed, or other products that may be transported, stored, displayed or distributed with such pesticides; or
7. For any person to dispose of, discard or store any pesticide or pesticide containers in such a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, beneficial insects or to pollute any water supply or waterways.

Acts 1951, ch. 150, § 3 (Williams, § 6808.9); T.C.A. (orig. ed.), § 43-704; Acts 1980, ch. 539, § 4; T.C.A. § 43-8-104.

Compiler's Notes. Former § 43-8-105, relating to injunction obtained to restrain violations, was transferred to § 43-8-109 in 2000.

43-8-106. Powers of commissioner.

1. The commissioner is authorized, after opportunity for a hearing, to:
   1. Declare any form of plant or animal life or virus that is injurious to plants, humans, domestic animals, articles or substances to be a pest;
   2. Determine whether pesticides are highly toxic to humans; and
   3. Determine standards of coloring or discoloring for pesticides.
2. The commissioner is further authorized to:
   1. Collect and undertake laboratory analysis of pesticides to determine their compliance with the requirements of this part and part 2 of this chapter; and the commissioner has the authority at all reasonable hours to enter into any car, warehouse, store, building, boat vessel or other place where pesticides are held for distribution or sale for the purpose of inspection or sampling, to procure samples for analysis or examination from any lot, package or parcel containing a pesticide;
   2. Publish from time to time information concerning the production, sale and use of any pesticide and make reports of the results of any analysis based on official samples of pesticides sold within the state;
   3. Classify pesticides for general use and/or restricted use, as well as those prohibited from use by regulation; provided, that the regulations shall be consistent with the requirements of the federal Insecticide, Fungicide and Rodenticide Act and regulations as administered by the environmental protection agency; and
   4. Review periodically the records of sales of restricted use pesticides by licensed dealers.
3. The commissioner is authorized to promulgate such reasonable regulations relating to the sale and distribution of pesticides as the commissioner may find necessary to carry out the full intent and meaning of this part and part 2 of this chapter.
4. The commissioner is authorized and empowered to cooperate with, and enter into agreements with, any other agency of this state, another state, or the federal government for the purpose of carrying out this part and part 2 of this chapter.

Acts 1951, ch. 150, § 6 (Williams, § 6808.12); 1975, ch. 239, § 3; T.C.A. (orig. ed.), § 43-707; Acts 1980, ch. 539, § 7; 1988, ch. 878, § 4; T.C.A. § 43-8-107.

Compiler's Notes. Former § 43-8-106, relating to registration of products, was transferred to § 43-8-104 in 2000.

The federal Insecticide, Fungicide and Rodenticide Act referred to in this section is compiled in 7 U.S.C. § 136 et seq.

Cross-References. Records of restricted use pesticides, § 43-8-206.

43-8-107. Notice given of violations — Hearing — Prosecution upon certification of facts.

1. If it appears from the examination or evidence that this part and part 2 of this chapter or the rules and regulations issued under this part or part 2 of this chapter have been violated, the commissioner may cause notice of the violations to be given to the registrant, distributor, and possessor from whom the sample or evidence was taken. Any party so notified shall be given an opportunity to be heard under such rules and regulations as may be prescribed by the commissioner. If it appears after such hearing that there has been a sufficient number of violations of this part and part 2 of this chapter or the rules and regulations issued under this part and part 2 of this chapter, the commissioner may certify the facts to the district attorney general or the county attorney or the city attorney for the county or municipality in which the violation shall have occurred, and furnish that officer with a copy of the results of the examination of such sample duly authenticated by the state chemist or other officer making the examination. It shall be the duty of every such attorney to whom the commissioner shall report any violation of this part and part 2 of this chapter to cause proceedings to be prosecuted without delay for the fines and penalties in such cases. Any person convicted of violating any provision of this part and part 2 of this chapter or the rules and regulations issued thereunder commits a Class A misdemeanor.
2. Nothing in this section shall be construed as requiring the commissioner to report for the institution of proceedings under this part and part 2 of this chapter, minor violations of this part and part 2 of this chapter, whenever the commissioner believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

Acts 1951, ch. 150, § 7 (Williams, § 6808.13); T.C.A. (orig. ed.), § 43-708; Acts 1989, ch. 591, § 113; T.C.A. § 43-8-108; Acts 2004, ch. 464, § 2.

Compiler's Notes. Former § 43-8-107, concerning the powers of the commissioner, was transferred to § 43-8-106 in 2000.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477.

43-8-108. Exemptions from penalties.

1. The penalties provided for violations of § 43-8-103 do not apply to:
   1. Any carrier, while lawfully engaged in transporting a pesticide within this state, if the carrier shall, upon request, permit the commissioner or the commissioner's designated agent to copy all records showing the transactions in and movements of the articles;
   2. Public officials of this state and the federal government engaged in the performance of their official duties;
   3. The manufacturer or shipper of a pesticide for experimental use only:
      1. By or under the supervision of an agency of this state or of the federal government authorized by law to conduct research in the field of pesticides; or
      2. By others if the pesticide is not sold and if the container thereof is plainly and conspicuously marked “for experimental use only — not to be sold,” together with the manufacturer's name and address; provided, that if a written permit has been obtained from the commissioner, pesticides may be sold for experimental purposes subject to such restrictions and conditions as may be set forth in the permit; or
   4. Any person who establishes a guaranty signed by, and containing the name and address of, the registrant or person residing in the United States from whom such person purchased and received in good faith the article in the same unbroken package, to the effect that the article was lawfully registered at the time of sale and delivery to such person, and that it complies with the other requirements of this part and part 2 of this chapter, designating this part and part 2 of this chapter. In such case the guarantor shall be subject to the penalties that would otherwise attach to the person holding the guaranty under this part and part 2 of this chapter.
2. This part and part 2 of this chapter shall not apply to any preparation, drug, or chemical intended to be used or sold solely for medicinal use or for toilet purposes.

Acts 1951, ch. 150, § 8 (Williams, § 6808.14); T.C.A. (orig. ed.), § 43-709; Acts 1980, ch. 539, § 9; T.C.A., § 43-8-109.

Compiler's Notes. Former § 43-8-108, concerning notice given of violations, hearing and prosecution upon certification of facts, was transferred to § 43-8-107 in 2000.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777.

43-8-109. Injunction obtained to restrain violations.

In addition to other remedies provided in this part, the commissioner may apply to any court having chancery jurisdiction in the county where a violation occurs, for a temporary or permanent injunction restraining any person from violating any provision of this part and part 2 of this chapter or regulations promulgated pursuant to this part and part 2 of this chapter, irrespective of whether there exists an adequate remedy at law.

Acts 1951, ch. 150, § 4 (Williams, § 6808.10); T.C.A. (orig. ed.), § 43-705; Acts 1980, ch. 539, § 8; T.C.A. § 43-8-105.

Compiler's Notes. Former § 43-8-109, relating to exemptions from penalties, was transferred to § 43-8-108 in 2000.

43-8-110. “Stop sale, use, or removal” orders — Issuance and enforcement.

It is the duty of the commissioner to issue and enforce a written or printed “stop sale, use, or removal” order to the owner or custodian of any lot of pesticide and to hold at a designated place when the commissioner finds the pesticide is being offered or exposed for sale in violation of any of the provisions of this chapter, until the law has been complied with and the pesticide is released in writing by the commissioner or the violation has been otherwise legally disposed of by written authority; provided, that the owner or custodian of the pesticide shall have the right to appeal from such order to a court of competent jurisdiction in the county or city where the pesticides are found, praying for a judgment as to the justification of the order, and for the discharge of the pesticide from the order prohibiting the sale in accordance with the findings of the court; and provided further, that this section shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other provisions of this part and part 2 of this chapter. The commissioner shall release the pesticide so withdrawn when the requirements of this part and part 2 of this chapter have been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.

Acts 1951, ch. 150, § 9 (Williams, § 6808.15); T.C.A. (orig. ed.), § 43-710; Acts 1980, ch. 539, § 10.

43-8-111. Seizure, condemnation and sale of pesticide for noncompliance with provisions of law.

1. Any lot of pesticide not in compliance with this part and part 2 of this chapter shall be subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the area in which the pesticide is located. In the event the court finds the pesticide to be in violation of this part and part 2 of this chapter and orders the condemnation of the pesticide, it shall be disposed of in any manner consistent with the quality of the pesticide and the laws of the state; provided, that in no instance shall the disposition of the pesticide be ordered by the court without first giving the claimant an opportunity to apply to the court for the release of the pesticide or for permission to process or relabel the product to bring it into compliance with this part and part 2 of this chapter.
2. When a decree of condemnation is entered against a pesticide, court costs and fees, storage, and other proper expenses shall be awarded against the person, if any, intervening as claimant of the pesticide.

Acts 1951, ch. 150, § 10 (Williams, § 6808.16); T.C.A. (orig. ed.), § 43-711; Acts 1980, ch. 539, § 10.

43-8-112. Authority vested in commissioner delegable to department of agriculture employees.

All authority vested in the commissioner by virtue of this part and part 2 of this chapter may with like force and effect be executed by such employees of the department of agriculture as the commissioner may from time to time designate for such purpose.

Acts 1951, ch. 150, § 11 (Williams, § 6808.17); T.C.A. (orig. ed.), § 43-712.

43-8-113. Establishment of fees.

1. Commercial pesticide applicator certification fee shall be set by rule pursuant to § 43-1-703.
2. Private pesticide applicator certification fee shall be set by rule pursuant to § 43-1-703.
3. Solicitor/technician card fee shall be set by rule pursuant to § 43-1-703.
4. Special local need (24-C) fee shall be set by rule pursuant to § 43-1-703.

Acts 1951, ch. 150, § 12 (Williams, § 6808.18); T.C.A. (orig. ed.), § 43-713; Acts 2015, ch. 485, § 7.

Amendments. The 2015 amendment rewrote the section, which read: “All funds collected under this part and part 2 of this chapter shall be paid into the state treasury, and the same are appropriated exclusively to the department of agriculture, to be used solely and separately in carrying out this part and part 2 of this chapter.”

Effective Dates. Acts 2015, ch. 485, § 41. July 1, 2015; May 20, 2015, for the purpose of promulgating rules.

43-8-114. Local regulation of pesticides.

1. Except as provided in § 43-8-115 or § 62-21-118(b), no city, town, county or other political subdivision of this state shall adopt or continue in effect any ordinance, rule, regulation or statute regarding pesticide sale or use, including, but not limited to, registration, notification of use, advertising and marketing, distribution, applicator training and certification, storage, transportation, disposal, disclosure of confidential information or product composition.
2. No provision of this section shall be construed to limit the authority of a city, town or county to zone for storage of such products or to provide or designate sites for disposal of such products, to regulate discharge to a sanitary sewer system or to implement an approved pesticide management plan as may be required by the Safe Drinking Water Act.
3. This section does not apply to any municipality having a population of not less than sixteen thousand five hundred (16,500) nor more than seventeen thousand five hundred (17,500), according to the 1990 federal census or any subsequent federal census.

Acts 1992, ch. 667, §§ 2, 5.

Compiler's Notes. The Safe Drinking Water Act, referred to in this section, is generally codified in 42 U.S.C. § 300f et seq.

For table of populations of Tennessee municipalities, see Volume 13 and its supplement.

Cross-References. Confidentiality of public records, § 10-7-504.

43-8-115. Agreements with certain municipal or county governments to implement the enforcement provisions of this chapter.

1. Notwithstanding this section, § 43-8-114, § 62-21-118(b), § 62-21-129 or any other law to the contrary, the commissioner shall enter into an agreement with any municipal and/or county government, within any county having a population in excess of two hundred fifty thousand (250,000), according to the 1990 federal census or any subsequent federal census, that requests authority to implement the enforcement provisions of this chapter, its equivalent or any part thereof, in its respective area of jurisdiction; provided, that each of the following conditions are met:
   1. The local government program standards are not less stringent than those of state law and regulations;
   2. The local government will adequately implement and enforce the program in the respective area of jurisdiction; and
   3. Upon execution of the agreement, the local government will be the sole entity responsible for implementation and enforcement of the local government program standards adopted.
2. As used in subsection (a), “respective area of jurisdiction” means:
   1. In the case of a municipal government that enters into an agreement pursuant to subsection (a), the area lying within the corporate boundaries of the municipality; and
   2. In the case of a county government that enters into an agreement pursuant to subsection (a), the area lying within the boundaries of the county excluding that portion located within the corporate boundaries of a municipal government that has entered, or that subsequently enters, into an agreement pursuant to subsection (a).
3. The commissioner shall retain the right to exercise oversight and evaluation of performance of local government and may terminate the agreement if, after an administrative hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, it is found that the local program does not meet the state standards.
4. Local governments that enter into an agreement pursuant to subsection (a) have the authority through their local legislative bodies to enact fees to provide for the administrative, regulatory and enforcement costs of the program.

Acts 1992, ch. 667, § 4.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

43-8-116. Offense of use of pesticide in manner that causes harm.

1. It is an offense for any person to knowingly use a pesticide in a manner inconsistent with its labeling so as to cause harm to persons, animals, property or the environment.
2. A violation of this section is a Class A misdemeanor punishable by fine or a term of imprisonment not to exceed thirty (30) days, or both.
3. This section shall be construed to be supplemental to § 43-8-306.

Acts 2007, ch. 395, § 1.

Effective Dates. Acts 2007, ch. 395, § 2. June 11, 2007.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Part 2
Pesticide Dealers

43-10-101. Short title.

This part shall be known and may be cited as the “Tennessee Seed Law of 1986.”

Acts 1986, ch. 660, § 2.

Compiler's Notes. Former part 1 (Acts 1972, ch. 517, §§ 1-14; T.C.A., §§ 43-921 — 43-933; Acts 1982, ch. 697, § 1; 1985, ch. 8, § 1), entitled the Tennessee Seed Law of 1972, was repealed by Acts 1986, ch. 660, § 1.

Cross-References. Agricultural production inputs, title 43, ch. 31.

Agriculture commodities promotion, title 43, ch. 29.

Distribution of adulterated fertilizer products, § 43-11-124.

Comparative Legislation. Seed Laws:

Ala.  Code § 2-26-1 et seq.

Ark.  Code § 2-18-101 et seq.

Ga. O.C.G.A. § 2-4-1 et seq.

Ky. Rev. Stat. Ann. § 250.020 et seq.

Miss.  Code Ann. § 69-3-1 et seq.

Mo. Rev. Stat. § 266.011 et seq.

N.C. Gen. Stat. § 106-277 et seq.

Va. Code § 3.1-262 et seq.

Collateral References. 3 Am. Jur. 2d Agriculture § 52 et seq.

3 C.J.S. Agriculture §§ 65-73.

Agriculture 1, 16.

Commerce 60(1).

43-10-102. Legislative purpose.

The purpose of this part is to regulate the labeling, possessing, offering, exposing, transporting or distributing for sale of agricultural seeds, vegetable seeds, and screenings; to prevent misrepresentations thereof; and for other purposes.

Acts 1986, ch. 660, § 3.

Cross-References. Seed certification, title 43, ch. 10, part 2.

43-10-103. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Advertisement” means all representations, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this part;
2. “Agricultural seeds” includes the seeds of grass, forage, cereal, and fiber crops and other kinds of seeds commonly recognized within this state as agricultural seeds, lawn seeds, and mixture of such seeds, and may include noxious-weed seeds when the commissioner determines that such seed is being used as agricultural seed;
3. “Association of Official Seed Certifying Agencies (AOSCA)” is an organization that is incorporated and whose members are the certifying agencies;
4. “Brand” means the name, term, design, or trademark under which any person offers seed for sale;
5. “Certifying agency” means an agency authorized to officially certify seed under the laws of a state, territory, possession, or foreign country and that has certification standards for genetic purity and identity that meet those standards established by the Association of Official Seed Certifying Agencies and referenced in its official handbook;
6. “Class of certified seed” means one (1) of four (4) classes of certified seeds:
   1. Breeder;
   2. Foundation;
   3. Registered; and
   4. Certified as determined under procedures established by the Association of Official Seed Certifying Agencies and referenced in its official handbook;
7. “Commissioner” means the commissioner of agriculture or the commissioner's designated agent or agents;
8. “Conditioning” means cleaning, scarifying, treating, or blending to obtain uniform quality, and other operations that would change the purity or germination of the seed and therefore require testing to determine the quality of the seed, but does not include operations such as packaging, labeling, blending together of uniform lots of the same kind or variety without cleaning, or the preparation of a mixture without cleaning, any of which would not require retesting to determine the quality of the seed;
9. “Date of test” means the month and year the percentage of germination appearing on the label was obtained by laboratory test;
10. “Germination” means the percentages by count of seeds under consideration, determined to be capable of producing normal seedlings in a given period of time and under normal conditions;
11. “Grower's declaration” means a written declaration of a grower stating, for each lot of seed, the kind, variety or type, the lot number, place the seed was grown, quantity of seed, date shipped or delivered, to whom sold, shipped or delivered and the signature and address of the grower issuing the declaration;
12. “Hard seeds” means seeds that, because of hardness or impermeability, do not absorb moisture and germinate under prescribed tests, but remain hard during the normal period for germination;
13. “Hybrid” means the first-generation seed of a cross produced by controlling the pollination or by use of sterile lines and combining:
    1. Two (2) or more inbred lines;
    2. One (1) inbred or a single cross with an open-pollinated variety; or
    3. Two (2) varieties or species except open-pollinated varieties of corn. The second generation or subsequent generations from such crosses shall not be regarded as hybrids. For labeling purposes, recognized hybrid designations shall be treated as variety names;
14. “In bulk” refers to loose seed in bins, or open containers, and not to seed in bags or packets;
15. “Inbred line” means a relatively stable and pure breeding strain resulting from not less than four (4) successive generations of controlled self-pollination or four (4) successive generations of back-crossing in the case of male sterile lines;
16. “Inert matter” means all matter not seeds, and includes broken seeds, sterile florets, chaff, fungus bodies, and stones, determined by methods prescribed by rules and regulations promulgated pursuant to this part;
17. “Inoculant” means a commercial preparation containing nitrogen-fixing bacteria applied to seed;
18. “Kind” means one (1) or more related species or subspecies that singly or collectively are known by one (1) common name; for example, corn, wheat, striate lespedeza, tall fescue, or cabbage;
19. “Labeling” includes all labels and other written, printed or graphic representations in any form whatsoever, accompanying or pertaining to any seed whether in bulk or in containers, and includes representations of invoices;
20. “Lot” means a definite quantity of seed identified by a lot number or other identification, which shall be uniform within recognized tolerances for the factors that appear in the labeling;
21. “Mixture” means seeds consisting of more than one (1) kind or kind and variety, each present in excess of five percent (5%) of the whole;
22. “Noxious-weed seeds” shall be divided into two (2) classes:
    1. “Prohibited noxious-weed seeds” are the seeds of weeds that, when established on the land, are highly destructive and are not controlled in the state by cultural practices commonly used; and
    2. “Restricted noxious-weed seeds” are the seeds of weeds that are very objectionable in fields, lawns, and gardens in the state and are difficult to control by cultural practices commonly used;
23. “Origin” means the state, District of Columbia, Puerto Rico, possession of the United States or the foreign country where the seed was grown;
24. “Other crop seeds” means seeds of kinds or varieties of agricultural or vegetable crops other than those shown on the label as the primary kind or kind and variety;
25. “Person” includes any individual, partnership, corporation, company, society, association, or legal entity;
26. “Private hearing” consists of a discussion of facts between the person charged and the enforcement officer;
27. “Pure seed” means agricultural or vegetable seeds, exclusive of inert matter, weed seeds and all other seeds distinguishable from the kind or kind and variety being considered when examined according to procedures prescribed by rules and regulations promulgated pursuant to this part;
28. “Purity” means the name or names of the kind, type or variety and the percentage of other crop seed; the percentage of weed seeds, including noxious-weed seeds; the percentage of inert matter; and the name and rate of occurrence of each noxious-weed seed;
29. “Recognized variety name” and “recognized hybrid designation” mean the name or designation that was first assigned the variety or hybrid by the person who developed it or the person who first introduced it for the production or sale after legal acquisition. These terms shall be used only to designate the varieties or hybrids to which they were first assigned;
30. “Record” includes all information relating to the shipment or shipments involved and includes a file sample of each lot of seed;
31. “Screenings” includes seed, inert matter and other materials removed from agricultural or vegetable seed by cleaning or conditioning;
32. “Seed offered for sale” means any seed or grain whether in bags, packets, bins, or other containers, exposed in sales rooms, storerooms, warehouses, or other places where seed is sold or delivered for seeding purposes, and shall be subject to this part, unless clearly labeled “not for sale as seed”;
33. “Seed seller” means a person who buys, sells, offers for sale, exposes for sale, distributes, or solicits orders for the sale of agricultural or vegetable seeds for seeding purposes, and includes any person who has seed grown under contract for resale for seeding purposes;
34. “Seizure” means a legal process carried out by court order in which the department takes physical possession of a definite amount of seed;
35. “Stop sale” means an administrative order provided by law restraining the sale, use, disposition and movement of a definite amount of seed;
36. “Tolerance” means the allowance for sampling variation specified under rules and regulations promulgated pursuant to this part;
37. “Treated” means given an application of a substance or subjected to a process designed to reduce, control or repel disease organisms, insects or other pests that attack seeds or seedlings growing therefrom, or to improve the planting value of the seed;
38. “Ultimate consumer” means a person who purchases seed with no intention to resell the seed;
39. “Variety” means a subdivision of a kind that is:
    1. Distinct, in the sense that the variety clearly differs by one (1) or more identifiable, morphological, physiological or other characteristics, which may include those evidenced by processing or product characteristics; e.g., milling and baking characteristics in the case of wheat, as to which a difference in genealogy may contribute evidence, from all prior varieties of public knowledge;
    2. Uniform, in the sense that any variations are describable, predictable, and commercially acceptable; and
    3. Stable, in the sense that the variety, when sexually reproduced or reconstituted, will remain unchanged with regard to its essential and distinctive characteristics with a reasonable degree of reliability commensurate with that of varieties of the same category in which the same breeding method is employed;
40. “Vegetable seeds” includes the seeds of those crops that are grown in gardens or truck farms and are generally known and sold under the name of vegetable seed in this state; and
41. “Weed seeds” means the seeds, bulblets, or tubers of all plants generally recognized as weeds within this state and includes noxious-weed seeds.

Acts 1986, ch. 660, § 4; 1994, ch. 844, § 1; 1997, ch. 94, § 1.

43-10-104. Label requirements.

Each container of agricultural and vegetable seeds that is sold, offered or exposed for sale, distributed or transported within or into this state for seeding purposes shall bear thereon or have attached thereto in a conspicuous place a plainly written or printed label or tag in the English language, giving the information required under §§ 43-10-105 — 43-10-108, which information shall not be modified or denied in the labeling or on another label attached to the container.

Acts 1986, ch. 660, § 5.

43-10-105. Label requirements — Treated seeds.

All seed named and treated as defined in this part (for which a separate label may be used) shall be labeled to show the following information:

1. A word or statement indicating that the seed has been treated;
2. The commonly accepted coined, chemical or abbreviated chemical (generic) name of the applied substance or description of the process used;
3. If the substance in the amount present with the seed is harmful to human or other vertebrate animals, a caution statement such as “Do not use for food, feed, or oil purposes.” The caution for mercurials and similarly toxic substances shall be a poison statement or symbol; and
4. If the seed is treated with an inoculant, the date beyond which the inoculant is not to be considered effective (date of expiration).

Acts 1986, ch. 660, § 6.

Textbooks. Tennessee Jurisprudence, 1 Tenn. Juris., Agriculture, § 3.

43-10-106. Label requirements — Agricultural seeds.

Agricultural seeds sold, distributed, offered or exposed for sale, or transported for sale within or into this state shall be labeled to show the following information:

1. The commonly accepted name of the kind and the variety, or kind and the phrase “variety not stated” for each agricultural seed present in excess of five percent (5%) of the whole and the percentage by weight of each in order of its predominance. When more than one (1) component is required to be named, the word “mixture” or the word “mixed” shall be shown conspicuously on the label. Hybrids shall be labeled as hybrids;
2. Lot number or other lot identifications;
3. Net weight;
4. Origin, if known. If the origin is unknown, the fact shall be stated;
5. Percentage by weight of inert matter;
6. Percentage by weight of agricultural seeds and/or vegetable seeds, which shall be designated as “other crop seeds,” other than those named on the label. Different varieties of the same kind of seed when in quantities of less than five percent (5%) will be considered as other crop seeds;
7. Percentage by weight of all weed seeds, including noxious-weed seeds;
8. For each named agricultural seed:
   1. Percentage of germination, exclusive of hard seed;
   2. Percentage of hard seed, if present;
   3. The calendar month and year the test was completed to determine such percentages;
   4. In addition to the individual percentage statement of germination and hard seed, the total percentage of germination and hard seed may be stated as such, if desired;
9. The name and number per pound of each kind of restricted noxious-weed seed present; and
10. The name and address of the person who labeled the seed, or who sells, offers or exposes the seed for sale within this state.

Acts 1986, ch. 660, § 7.

43-10-107. Label requirements — Vegetable seeds in containers of one pound or less.

Labels for vegetable seeds in containers of one (1) pound or less, including vegetable seeds in preplanted containers, mats, tapes, or other planting devices, shall show the following information:

1. Name of kind and variety of seed. Hybrids shall be labeled as hybrids;
2. Lot number or other lot identification;
3. 1. Percentage germination and calendar month and year the test was completed, or year for which packed; provided, that the words “Packed for” precedes the year. However, no seed are to be offered or exposed for sale at retail outlets before the year for which packed;
   2. Any seed offered or exposed for sale after the year for which packed, unless in hermetically sealed containers, must show a current germination test as required in § 43-10-109(1)(B). The person in possession of such seed will be responsible for securing a new germination test;
4. Name and address of the person who labeled the seed or who sells, offers, or exposes the seed for sale within this state;
5. For seeds that germinate less than the standards last established by the commissioner under this part:
   1. The percentage of germination, exclusive of hard seed;
   2. The percentage of hard seed, if present;
   3. The calendar month and year the test was completed to determine such percentage;
   4. In addition to the individual percentage statement of germination and hard seed, the total percentage of germination and hard seed may be stated, if desired; and
   5. The words “Below Standard” in not less than eight (8) point type; and
6. For seeds in a germination medium, mat, tape, or other device in such a way as to make it difficult to determine the quantity of seed without removing the seeds from the medium, mat, tape, or device, a statement to indicate the minimum number of seeds in the container.

Acts 1986, ch. 660, § 8.

43-10-108. Label requirements — Vegetable seeds in containers of more than one pound.

Vegetable seeds in containers of more than one (1) pound shall be labeled to show the following information:

1. The name of each kind and variety present in excess of five percent (5%) and the percentage by weight of each in order of its predominance. Hybrids shall be labeled as hybrids;
2. Lot number or other lot identification:
   1. The percentage of germination, exclusive of hard seed;
   2. The percentage of hard seed, if present;
   3. The calendar month and year the test was completed to determine such percentages;
   4. In addition to the individual percentage statement of germination and hard seed, the total percentage of germination and hard seed may be stated as such, if desired;
   5. Net weight, except when in bulk; and
   6. The name and address of the person who sells, offers or exposes the seed for sale within this state; and
3. No tag or label shall be required, unless requested, on seeds sold directly to and in the presence of the purchaser and taken from a bag or container properly labeled.

Acts 1986, ch. 660, § 9.

43-10-109. Prohibitions.

It is unlawful for any person to:

1. Transport, offer for transportation, sell, distribute, offer or expose for sale within this state agricultural seed or vegetable seeds for seeding purposes:
   1. Unless a seed license has been obtained in accordance with this part;
   2. Unless the test to determine the percentage of germination required by §§ 43-10-106 — 43-10-108 has been completed within a nine-month period, exclusive of the calendar month in which the test was completed immediately prior to sale, exposure for sale, or offering for sale or transportation;
   3. Not labeled in accordance with this part or having a false or misleading labeling or claim;
   4. Pertaining to which there has been a false or misleading advertisement;
   5. Consisting of or containing prohibited noxious-weed seeds (tolerance not permitted);
   6. Containing restricted noxious-weed seeds, except as prescribed by rules and regulations promulgated under this part;
   7. Containing weed seeds in excess of two percent (2%) by weight unless otherwise provided in rules and regulations promulgated under this part;
   8. That have been treated and not labeled as required;
   9. To which there are affixed names or terms that create a misleading impression as to the kind, kind and variety, history, productivity, quality or origin of the seeds;
   10. Represented to be certified, registered, or foundation seed, unless it has been produced, processed and labeled in accordance with the procedures and in compliance with rules and regulations of an official seed certifying agency;
   11. Represented to be hybrid, unless such seed conforms to the definition of a “hybrid” as defined in this part;
   12. Unless it conforms to the definition of a “lot”; or
   13. By variety name seed not certified by an official seed certifying agency when it is a variety for which a certificate of plant variety protection under the Plant Variety Protection Act specifies sale only as a class of certified seed; provided, that seed from a certified lot may be labeled as to variety name when used in a mixture by, or with the approval of, the owner of the variety;
2. Advertise by variety name or make any representations to a particular variety, when the variety is protected by the Plant Variety Protection Act for sale only as a class of certified seed, if it has not been certified by an official seed certification agency, except as provided in subdivision (1)(M);
3. Transport, offer for transportation, sell, distribute, offer or expose for sale seeds, whole grain, and screenings not for seeding purposes unless labeled “not for seeding purposes”;
4. Detach, alter, deface, or destroy any label provided for in this part or the rules and regulations promulgated under this part, or to alter or substitute seed in any manner that defeats the purpose of this part;
5. Disseminate false or misleading advertisement in any manner concerning agricultural seeds, vegetable seeds or screenings;
6. Hinder or obstruct in any manner an authorized agent of the commissioner in the performance of such agent's lawful duties;
7. Fail to comply with or to supply inaccurate information in reply to a stop-sale order, or remove tags attached to, or move or dispose of, seed or screenings held under stop-sale order, except as specified by the enforcement officer;
8. Use the name of the department of agriculture or the results of tests and inspections made by the department for advertising purposes;
9. Sell, offer or expose for sale, or give away the seeds or plants of Johnson grass or seed indistinguishable from Johnson grass seed, such as Sorghum alum;
10. Use the words “type” or “trace” in lieu of information required by § 43-10-105 through this section;
11. Label and offer for sale seed under the scope of this part without keeping complete records as specified in § 43-10-111; or
12. Sell, distribute, offer or expose for sale tobacco seed for seeding purposes unless the seed has been certified by an official seed certifying agency.

Acts 1986, ch. 660, § 10; 1993, ch. 269, § 1; 1994, ch. 844, § 2; 1997, ch. 94, § 2.

Compiler's Notes. The Plant Variety Protection Act, referred to above, is codified as 7 U.S.C. § 2321 et seq.

43-10-110. Exemptions.

1. Sections 43-10-104 — 43-10-108 do not apply:
   1. To seed or grain sold or represented to be sold for purposes other than for seeding; provided, that the seed is labeled “not for seeding purposes” and that the seed seller shall make it unmistakably clear to the purchaser of such seed or grain that it is not for seeding purposes;
   2. To seed for conditioning when consigned to being transported to or stored in a conditioning establishment; provided, that the invoice or labeling accompanying the seed bears the statement “Seed for conditioning”; and provided further, that other labeling or representation that may be made with respect to the uncleaned or unconditioned seed shall be subject to this part;
   3. When grown, sold, and delivered by the producer on the producer's own premises, to the purchaser personally for seeding purposes. If, however, the seed is advertised for sale through any public medium or if the seed is delivered by a common carrier, except transported for the purposes of being recleaned as hereinafter provided, the seed must be labeled in accordance with this part; and
   4. To any carrier in respect to any seed or screenings transported or delivered for transportation in the ordinary course of its business as a carrier; provided, that such carrier is not engaged in producing, conditioning, or marketing agricultural or vegetable seeds or screenings subject to this part.
2. No person shall be subject to the penalties of this part for having sold, offered or exposed for sale in this state any agricultural or vegetable seeds that were incorrectly labeled or represented as to origin, kind, or variety when such seeds cannot be identified by examination, unless such person has failed to obtain an invoice or genuine grower's declaration giving origin, kind, and variety or to take such other precautions as may be necessary to ensure the identity to be that stated.

Acts 1986, ch. 660, § 11.

43-10-111. Records.

Each person whose name appears on the label as handling agricultural or vegetable seeds subject to this part shall keep for a period of two (2) years complete records of each lot of such seed handled, and shall keep for one (1) year a file sample of each lot of seed after final disposition of the lot. All such records and samples pertaining to the shipment or shipments involved shall be accessible for inspection by the commissioner or the commissioner's agent during customary business hours.

Acts 1986, ch. 660, § 12.

43-10-112. Disclaimers, nonwarranties, and limited warranties.

A disclaimer, nonwarranty, or limited warranty used in any invoice, advertising, labeling, or written, printed or graphic matter pertaining to any seed shall not directly or indirectly deny or modify any information required by this part or the rules and regulations promulgated under this part.

Acts 1986, ch. 660, § 13.

43-10-113. Tolerances to be established and used in enforcement.

Due to variations that may occur between the analysis or tests and likewise between label statements and the results of subsequent analyses and tests, tolerances that are to be established by appropriate rules and regulations promulgated under the authority of this part shall be employed in the enforcement of this part.

Acts 1986, ch. 660, § 14.

43-10-114. Duties and authority of commissioner.

1. Except as otherwise specifically provided by the Tennessee Drug Control Act of 1989, compiled in title 39, chapter 17, part 4, and title 53, chapter 11, parts 3 and 4, or any other state statute that authorizes or requires a person other than the commissioner to exercise jurisdiction and authority over matters related to the regulation of seed, the commissioner has exclusive jurisdiction and authority over all matters related to the regulation of seed. The duty of enforcing this part and its rules and regulations and carrying out its provisions and requirements shall be vested in the commissioner. It is the duty of the commissioner, who may act through authorized agents to:
   1. Sample, inspect, analyze, and test agricultural and vegetable seed held in storage, transported, distributed, sold, offered or exposed for sale within this state for seeding purposes at such time and place and to such extent as the commissioner may deem necessary to determine whether such seeds are in compliance with this part, and notify promptly the person who transported, distributed, possessed, sold, offered or exposed the seed for sale of any violation;
   2. After conferring with interested industry representatives, prescribe, amend and adopt rules and regulations governing the method of sampling, inspection, analyzing, testing and examining agricultural and vegetable seed, and the tolerances to be followed in the administration of this part, which shall be in general accord with officially prescribed practices in interstate commerce;
   3. Adopt a list of prohibited and restricted noxious weeds, conforming with the definitions stated in this part, and add or subtract from the list, from time to time, after a public hearing following due public notice;
   4. Promulgate rules and regulations to provide such additional definitions of terms as the commissioner believes are needed; prescribe minimum standards of germination and purity and maximum number per pound allowed for each restricted noxious weed; and
   5. Prescribe such other rules as may be necessary to secure the efficient enforcement of this part and to maintain a comprehensive scheme for regulating seed that shall be uniform and applicable throughout the state.
2. Further, for the purpose of carrying out this part, the commissioner, individually or through authorized agents, is authorized to:
   1. Enter upon any public or private premises during business hours in order to have access to seeds and the records connected with seeds subject to this part and rules and regulations under this part, and any truck or other conveyor by land, water, or air at any time when such conveyor is accessible, for the same purpose;
   2. Issue and enforce a written or printed “stop sale” order to the owner or custodian of any lot of agricultural or vegetable seeds that the commissioner or the commissioner's authorized agent finds is in violation of any of the provisions of this part or rules and regulations promulgated under this part, which order shall prohibit further sale, conditioning and movement of such seed until the enforcing officer has evidence that there has been compliance with the law, and has issued a release from the “stop sale” order of such seed; provided, that in respect to seed that has been denied sale, conditioning and movement as provided in this subdivision (b)(2), the owner or custodian of such seed shall have the right to appeal from the order to a court of competent jurisdiction in the locality in which the seeds are found, praying for a judgment as to the justification of the order and for the discharge of the seeds from the order prohibiting the sale, conditioning and movement in accordance with the findings of the court; and provided further, that this subdivision (b)(2) shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other sections of this part;
   3. Establish and maintain or make provisions for seed testing facilities, employ qualified persons, and incur such expenses as may be necessary to comply with these provisions;
   4. Publish the results of analyses, tests, examinations, studies, and investigations made as authorized by this part, together with any other information the commissioner may deem advisable; and
   5. Cooperate with the United States department of agriculture in seed law enforcement.
3. Except as otherwise specifically provided by the Tennessee Drug Control Act of 1989, or any other state statute that authorizes or requires a person other than the commissioner to prohibit the planting, cultivation, harvesting, handling, or movement of agricultural seeds, the commissioner shall have the sole authority to prohibit the planting, cultivation, harvesting, handling, or movement of agricultural seeds.

Acts 1986, ch. 660, § 15; 2016, ch. 643, §§ 1-3.

Amendments. The 2016 amendment added the current first sentence of (a); in (a)(5), deleted “and regulations” following “rules” near the beginning and added “and to maintain a comprehensive scheme for regulating seed that shall be uniform and applicable throughout the state.” to the end; and added (c).

Effective Dates. Acts 2016, ch. 643, § 4. March 23, 2016.

43-10-115. Seizure.

Any lot of agricultural or vegetable seeds, mixtures of such seeds, or screenings being sold, exposed for sale, offered for sale or held with intent to sell in this state contrary to this part shall be subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the locality in which the seeds, mixtures of such seeds, or screenings are located. In the event the court finds the seed to be in violation of this part and orders the condemnation thereof, the seeds, mixtures of such seeds, or screenings shall be denatured, conditioned, destroyed, relabeled, or otherwise disposed of in compliance with the laws of this state; provided, that in no instance shall such disposition of the seeds, mixtures of the seeds, or screenings be ordered by the court without first having given the claimant an opportunity to apply to the court for the release of the seeds, mixtures of the seeds, or screenings, or permission to condition or relabel to bring them into compliance with this part.

Acts 1986, ch. 660, § 16.

43-10-116. Violations, hearings, prosecutions, or warnings.

1. Any person who knowingly, or as a result either of gross negligence or of a failure to make a reasonable effort to be informed of the pertinent facts, violates any provision of this part, or the rules and regulations made and promulgated thereunder, commits a Class C misdemeanor. However, no prosecution under this part shall be instituted without the person first having been given an opportunity to appear before the commissioner or the commissioner's duly authorized agent, to introduce evidence either in person or by agent or attorney at a private hearing.
2. If, after the hearing, or without a hearing in the event the person or the person's agent or attorney fails or refuses to appear, the commissioner is of the opinion that the evidence warrants prosecution, the commissioner shall proceed according to legal procedures in the state, or, if the commissioner believes the public interest will be adequately served by a written notice or warning, the commissioner may direct to the alleged violator a suitable written notice or warning.
3. After judgment by the court in any case arising under this part, the commissioner shall publish any information pertinent to the issuance of the judgment by the court in such media as the commissioner may designate from time to time.

Acts 1986, ch. 660, § 17; 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

43-10-117. Injunction.

When, in the performance of official duties, the commissioner applies to any court for a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this part or any rules and regulations under this part, the injunction is to be issued without bond.

Acts 1986, ch. 660, § 18.

43-10-118. License fees.

Each seed seller who sells, offers for sale, exposes for sale, distributes, or solicits orders for the sale of any agricultural or vegetable seeds to farmers, retailers, wholesalers, or any others who use or plant agricultural or vegetable seeds in the state shall obtain a license from the commissioner annually on or before July 1 of each calendar year. Seed sellers shall obtain an application form and pay the appropriate fee set by rule pursuant to § 43-1-703.

Acts 1986, ch. 660, § 19; 1997, ch. 94, § 3; 2015, ch. 485, § 9.

Amendments. The 2015 amendment rewrote the section, which read: “(a) Each seed seller who sells, offers for sale, exposes for sale, distributes, or solicits orders for the sale of any agricultural or vegetable seeds to farmers, retailers, wholesalers, or to any others who use or plant agricultural or vegetable seeds in the state must obtain a license from the commissioner annually on July 1. Seed sellers shall obtain an application form and pay the appropriate fee:“(1) Each seed seller selling, possessing, offering or exposing for sale agricultural or vegetable seeds at retail in packages or containers larger than one (1) pound shall pay to the commissioner an annual fee of ten dollars ($10.00) for each such place of business;“(2) Each seed seller selling seed to wholesalers only shall pay to the commissioner an annual fee of ten dollars ($10.00) for each such place of business; and“(3) All other seed sellers not covered under subdivision (a)(1), excluding the actual producer of the seed, shall be classified as a wholesaler, and shall pay to the commissioner an annual fee of seventy-five dollars ($75.00) for each such place of business“(b) Out of state seed sellers who sell or ship seed into this state shall obtain a license in the same manner as described in subdivisions (a)(1) and (2).“(c) Each person who does not have a fixed place of business who sells, offers or exposes for sale, seed in this state shall be required upon application for a license to furnish a surety bond in the amount of ten thousand dollars ($10,000) payable to the commissioner. The bond shall be given for the protection of purchasers of that person's seed and for the purpose of carrying out this part.“(d) Licenses shall be renewed annually beginning July 1. Failure to renew such license by September 1 of each year, will incur a penalty of one hundred percent (100%) to the cost of the license.“(e) Each seed seller, including the actual producer of the seed, selling, distributing, offering, or exposing for sale agricultural or vegetable seeds within or into this state shall pay to the department an inspection fee on each container of seed as follows:“(1) Three cents (3cent(s)) per container weighing from six pounds (6 lbs.) to one hundred pounds (100 lbs.);“(2) Three cents (3cent(s)) per c.w.t., or fractions thereof, for seeds in bulk or container in excess of one hundred pounds (100 lbs.);“(3) Three cents (3cent(s)) for each case of agricultural or vegetable seeds in containers weighing five pounds (5 lbs.) or less; and“(4) Two cents (2cent(s)) for each two-ounce package or less of tobacco seed.“(f) The inspection fees shall be paid by means of a reporting system. Procedures for obtaining a permit and the responsibilities of the permit holders shall be established by rules and regulations promulgated by the commissioner.”

Effective Dates. Acts 2015, ch. 485, § 41. July 1, 2015; May 20, 2015, for the purpose of promulgating rules.

43-10-119. [Repealed.]

Acts 1986, ch. 660, § 20;  repealed by Acts 2015, ch. 485, § 10, effective July 1, 2015.

Compiler's Note. Former § 43-10-119 concerned disposition of fees.

43-10-120. Regulations promulgated under former statute.

All regulations promulgated under prior law shall remain in effect until amended or repealed in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1986, ch. 660, § 21.

Part 2
Seed Certification

43-11-101. Short title.

This part shall be known and may be cited as the “Tennessee Commercial Fertilizer Law of 1969.”

Acts 1969, ch. 102, § 1; T.C.A., § 43-1121.

Cross-References. Agricultural production inputs, title 43, ch. 31.

Lien for farm implements and supplies, § 66-12-103.

Soil conservation, title 43, ch. 14.

Comparative Legislation. Fertilizers:

Ala.  Code § 2-22-1 et seq.

Ark.  Code § 2-19-201 et seq.

Ga. O.C.G.A. § 2-12-1 et seq.

Ky. Rev. Stat. Ann. § 250.360 et seq.

Miss.  Code Ann. § 75-47-1 et seq.

Mo. Rev. Stat. § 266.291 et seq.

N.C. Gen. Stat. § 106-655 et seq.

Va. Code § 3.1-74 et seq.

Collateral References. 3 Am. Jur. 2d Agriculture § 42 et seq.

3 C.J.S. Agriculture §§ 74-82.

Constitutionality, construction and application of statutes relating to testing or sampling of agricultural fertilizers. 105 A.L.R. 348, 147 A.L.R. 765.

Liability of manufacturer or seller for injury caused by animal feed or medicines, crop sprays, fertilizers, insecticides, rodenticides and similar products. 12 A.L.R.4th 462, 29 A.L.R.4th 1045.

Agriculture 1, 7.

43-11-102. Administration of part.

This part shall be administered by the commissioner of agriculture.

Acts 1969, ch. 102, § 2; T.C.A., § 43-1122.

43-11-103. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Brand” means a term, design, or trademark used in connection with one (1) or several grades of commercial fertilizer;
2. “Bulk fertilizers” means commercial fertilizer distributed in a nonpackaged form;
3. “Commercial fertilizer” means any substance containing one (1) or more recognized plant nutrients that is used for its plant nutrient content and that is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, wood ashes and gypsum;
4. “Commissioner” means the commissioner of agriculture;
5. “Deficiency” means the amount of nutrient found by analysis less than that guaranteed that may result from a lack of nutrient ingredients or from a lack of uniformity;
6. “Distributor” means any person who imports, consigns, manufactures, produces, compounds, mixes, or blends commercial fertilizer, or who offers for sale, sells, barters, or otherwise supplies commercial fertilizer in this state;
7. “Fertilizer material” is a fertilizer that either:
   1. Contains important quantities of no more than one (1) of the primary plant nutrients (nitrogen, phosphoric acid and potash);
   2. Has approximately eighty-five percent (85%) of its plant nutrient content present in the form of a single chemical compound; or
   3. Is derived from a plant or animal residue or by-product or a natural material deposit that has been processed in such a way that its content of primary plant nutrients has not been materially changed except by purification and concentration;
8. “Grade” means the percentages of total nitrogen, available phosphorus or phosphoric acid, and soluble potassium or soluble potash stated in whole numbers in the same terms, order and percentages as in the “guaranteed analysis”;
9. “Guaranteed analysis”:
   1. Until the commissioner prescribes the alternative form of “guaranteed analysis” in accordance with the provisions of subdivision (9)(B), “guaranteed analysis” means the minimum percentage of plant nutrients claimed in the following order and form:

      Available Phosphoric Acid (P205)   percent

      Soluble Potash (K20)   percent

      1. Total Nitrogen (N)   percent
      2. For unacidulated mineral phosphatic materials and basis slag, both total and available phosphoric acid and the degree of fineness. For bone, tankage, and other organic phosphatic materials, total phosphoric acid;
      3. Guarantees for plant nutrients other than nitrogen, phosphorus and potassium may be permitted or required by regulation of the commissioner. The guarantees for plant nutrients other than nitrogen, phosphorus and potassium shall be expressed in the form of the element. The sources of such other nutrients (oxides, salt, chelates, etc.) may be required to be stated on the application for registration and may be included as a parenthetical statement on the label. Other beneficial substances or compounds, determinable by laboratory methods, also may be guaranteed by permission of the commissioner and with the advice of the director of the agricultural experiment station. When any plant nutrients or other substances or compounds are guaranteed, they shall be subject to inspection and analysis in accordance with the methods and regulations prescribed by the commissioner; and
      4. Potential basicity or acidity expressed in terms of calcium carbonate equivalent in multiples of one hundred pounds (100 lbs.) per ton, when required by regulation; and
   2. When the commissioner finds, after public hearing following due notice, that the requirement for expressing the guaranteed analysis of phosphorus and potassium in elemental form would not impose an economic hardship on distributors and users of fertilizer by reason of conflicting labeling requirements among the states, the commissioner may require by regulation thereafter that the “guaranteed analysis” shall be in the following form:

      Total Nitrogen (N)   percent

      Available Phosphorus (P)   percent

      Soluble Potassium (K)   percent

      provided, that the effective date of the regulation shall not be less than six (6) months following the issuance of the regulation; and provided further, that for a period of two (2) years following the effective date of the regulation, the equivalent of phosphorus and potassium may also be shown in the form of phosphoric acid and potash. After the effective date of a regulation issued under this subdivision (9)(B), requiring that phosphorus and potassium be shown in the elemental form, the guaranteed analysis for nitrogen, phosphorus, and potassium shall constitute the grade;

10. “Investigational allowance” means an allowance for variations inherent in the taking, preparation, and analysis of an official sample;
11. “Label” means the display of all written, printed, or graphic matter upon the immediate container, or a statement accompanying a fertilizer;
12. “Labeling” means all written, printed, or graphic matter upon or accompanying any fertilizer, or advertisements, brochures, posters, television, and radio announcements used in promoting the sale of such fertilizer;
13. “Local legislation” means, but is not limited to, any ordinance, motion, resolution, amendment, regulation or rule adopted by a political subdivision;
14. “Mixed fertilizer” is a commercial fertilizer containing any combination or mixtures of fertilizer materials designed for use or claimed to have value in promoting plant growth;
15. “Official sample” means any sample of commercial fertilizer taken by the commissioner or the commissioner's agent and designated as “official” by the commissioner;
16. “Overall index value” means the value of a fertilizer as determined by comparing the value guaranteed with the value found, using as a basis for value the commercial value of a nutrient or ingredient per § 43-11-110;
17. “Percent” or “percentage” means the percentage by weight;
18. “Person” includes an individual, partnership, association, firm, and corporation;
19. “Political subdivision” means any local government entity and includes, but is not limited to, any city, county or municipal government and any other body corporate and politic that is responsible for government activities in a geographic area smaller than the state;
20. “Registrant” means the person who registers commercial fertilizer under this part;
21. “Soil conditioner or soil amendment” means any substance that is intended to improve the physical characteristics of the soil, except agricultural liming materials, unmanipulated animal manures, unmanipulated vegetable manures, pesticides, and other materials exempted by regulation;
22. “Specialty fertilizer” means a commercial fertilizer distributed primarily for nonfarm use, such as home gardens, lawns, shrubbery, flowers, golf courses, municipal parks, cemeteries, greenhouses and nurseries;
23. “Ton” means a net weight of two thousand pounds (2,000 lbs.) avoirdupois; and
24. “Unmanipulated manure” means any substance composed of the excreta of domestic animals or domestic fowls that has not been processed in any manner, including drying, grinding, shredding, addition of plant food, mixing artificially with any material or materials other than those that have been used for bedding, sanitary, or feeding purposes for the animals or fowls, or any other means.

Acts 1969, ch. 102, § 3; T.C.A., § 43-1123; Acts 1986, ch. 659, §§ 1, 2; 1988, ch. 544, §§ 1, 2; 2008, ch. 1040, § 1.

Compiler's Notes. Acts 2008, ch. 1040, § 3 provided that the provisions adding the definitions for “local legislation” and “political subdivision” to this section shall not apply in any county having a population in excess of two hundred thousand (200,000), according to the 2000 federal census or any subsequent federal census. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Amendments. The 2008 amendment added the definitions for “local legislation” and “political subdivision”.

Effective Dates. Acts 2008, ch. 1040, § 4. May 28, 2008.

43-11-104. Annual licence fee.

Every person who distributes commercial fertilizer in this state shall pay an annual license fee set by rule pursuant to § 43-1-703.

Acts 1969, ch. 102, § 4; T.C.A., § 43-1124; Acts 1988, ch. 544, § 3; 2015, ch. 485, § 11.

Amendments. The 2015 amendment rewrote the section, which read: “(a) Each brand and grade of commercial fertilizer shall be registered before being distributed in this state. The application for registration shall be submitted to the commissioner on forms furnished by the commissioner. All brands sold in packages of twenty-five pounds (25 lbs.) or less shall be registered at a fee of twenty-five dollars ($25.00) each. Upon approval by the commissioner, a copy of the registration shall be furnished to the applicant. All registrations expire on June 30 of each year. The application shall include the following information:“(1) The net weight;“(2) The brand and grade;“(3) The guaranteed analysis;“(4) The name and address of the registrant; and“(5) The sources from which the nitrogen, phosphorus, and potassium are derived.“(b) A distributor shall not be required to register any brand of commercial fertilizer that is already registered under this part by another person.“(c) A distributor shall not be required to register a commercial fertilizer formulated according to specifications that are furnished by a consumer prior to mixing, but shall be required to label such fertilizer as provided in § 43-11-105(c).“(d) For all specialty fertilizers, soil amendments and soil conditioners, the registrant shall submit to the commissioner two (2) labels or copies of each label of each brand and grade, together with the registration application. For all specialty fertilizers, soil amendments and soil conditioners, the registrant shall submit a fee of twenty-five dollars ($25.00) per brand and grade regardless of package size.“(e) Nothing in this section shall prohibit the commissioner or the commissioner's agent from denying registration pending the submission of all requested information and the completion of any required changes necessary for any fertilizer to be in full compliance with this chapter.”

Effective Dates. Acts 2015, ch. 485, § 41. July 1, 2015; May 20, 2015 for the purpose of promulgating rules.

43-11-105. Labeling.

1. Any commercial fertilizer distributed in this state in containers shall have placed on or affixed to the container a label setting forth in clearly legible and conspicuous form the information required by § 43-11-104(a)(1)-(4).
2. If distributed in bulk, a written or printed statement of the information required by § 43-11-104(a)(1)-(4) shall accompany delivery and be supplied to the purchaser at time of delivery.
3. A commercial 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 or the registrant, together with the name and address of the consumer.

Acts 1969, ch. 102, § 5; T.C.A., § 43-1125; Acts 1986, ch. 659, § 3.

Compiler's Notes. Section 43-11-104, referred to in this section, was rewritten by Acts 2015, ch. 485, § 11, effective July 1, 2015.  As rewritten, the section no longer contains the registration application requirements formerly set out in (a)(1)-(4).

43-11-106. [Repealed.]

Acts 1969, ch. 102, § 6; 1972, ch. 628, § 1; T.C.A., § 43-1126; Acts 1986, ch. 659, §§ 4, 5; repealed by Acts 2015, ch. 485, § 12, effective July 1, 2015.

Compiler's Note. Former § 43-11-106 concerned inspection fees.

43-11-107. [Repealed.]

Acts 1969, ch. 102, § 7; T.C.A., § 43-1127; Acts 1986, ch. 659, § 6; repealed by Acts 2015, ch. 485, § 13, effective July 1, 2015.

Compiler's Note. Former § 43-11-107 concerned tonnage reports.

43-11-108. Inspection, sampling, analysis.

1. It is the duty of the commissioner or the commissioner's agent to sample, inspect, make analysis of, and test commercial fertilizer distributed within this state, and the commissioner or agent is authorized to enter upon any public or private premises or carriers at a time and place and to such extent as the commissioner or agent may deem necessary to determine whether their commercial fertilizers are in compliance with this part.
2. The methods of analysis and sampling shall be those adopted by the official from sources such as the Association of Official Analytical Chemists Journal.
3. The commissioner, in determining for administrative purposes whether any commercial fertilizer is deficient in plant food, shall be guided solely by the official sample as defined in § 43-11-103, and obtained and analyzed as provided for in subsection (b).
4. The results of official analysis of any commercial fertilizer that has been found to be subject to penalty or other legal action shall be forwarded by the commissioner to the registrant at least ten (10) days before the report is submitted to the purchaser. If during that period no adequate evidence to the contrary is made available to the commissioner, the report shall become official. Upon request, the commissioner shall furnish to the registrant a portion of any sample found subject to penalty or other legal action.

Acts 1969, ch. 102, § 8; T.C.A., § 43-1128; Acts 1986, ch. 659, § 7.

43-11-109. Fertilizer deficiency — Penalties.

1. If the analysis shall show that any commercial fertilizer falls short of the guaranteed analysis, penalties shall be assessed by the commissioner as follows:
   1. When a deficiency in the analysis of any one (1) primary ingredient (nitrogen, phosphorus or potash) is greater than two (2) times the investigational allowance for that ingredient, penalties will be assessed in the amount of three (3) times the commercial value of the deficiency;
   2. When a deficiency in the analysis of any one (1) primary ingredient is two (2) or less times the investigational allowance for that ingredient, an overall index value will be calculated. When the overall index value is less than ninety-seven percent (97%), the penalty assessed shall be three (3) times the difference between the found commercial value and the guaranteed commercial value of the primary nutrients;
   3. When an analysis of any one (1) primary ingredient results in both a deficiency greater than two (2) times the investigation allowances and an overall index value of less than ninety-seven percent (97%), the greater of the two (2) penalties will be assessed. In no instance will the penalty assessed be greater than the retail value of the lot of fertilizer; and
   4. When an analysis of any one (1) secondary nutrient (minor elements) is deemed deficient by exceeding the allowable deficiencies established by regulation, penalties assessed will be in the amount of three (3) times the commercial value of the deficiency.
2. When assessing penalties for fertilizer found to be deficient, tolerances and investigational allowances established by the Association of American Plant Food Control Officials and published in the annual official publication shall be recognized.
3. Deficiency in any other constituent or constituents covered under § 43-11-103(9)(A)(i), (ii) and (iii) that the registrant is required to or may guarantee shall be evaluated by the commissioner and penalties therefor shall be prescribed by the commissioner.
4. Nothing contained in this section shall prevent any person from appealing to a court of competent jurisdiction for judgment as to the justification of penalties.
5. All penalties assessed under this section shall be paid to the consumer of the lot of commercial fertilizer represented by the sample analyzed within two (2) months after the date of notice from the commissioner to the registrant, receipts taken therefor and promptly forwarded to the commissioner. If these consumers cannot be found, the amount of the penalty shall be paid to the department of agriculture, and shall be used only for the enforcement of this part. If, upon satisfactory evidence, a distributor is shown to have altered the content of a fertilizer shipped to such distributor by a registrant, or to have mixed or commingled fertilizer from two (2) or more supplies such that the result of either alteration changes the analysis of the fertilizer as originally guaranteed, then that distributor shall become responsible for obtaining a registration and shall be held liable for all penalty payments and be subject to other provisions of this part, including seizure, condemnation and stop sale.
6. A deficiency in an official sample of mixed fertilizer resulting from nonuniformity shall be handled in the same manner as a deficiency due to actual plant nutrient shortage.

Acts 1969, ch. 102, § 9; 1977, ch. 166, § 1; T.C.A., § 43-1129; Acts 1986, ch. 659, § 8; 1988, ch. 544, § 4.

43-11-110. Commercial value.

For the purpose of determining the commercial values to be applied under the provisions of § 43-11-109, the commissioner shall determine and publish annually the values per pound of nitrogen, available phosphoric acid, and soluble potash in commercial fertilizers in this state. If guarantees are as provided in § 43-11-103(9)(B), the values shall be per pound of nitrogen, phosphorus, and potassium. The values so determined and published shall be used in determining and assessing penalties.

Acts 1969, ch. 102, § 10; T.C.A., § 43-1130.

43-11-111. Soil conditioners.

1. No soil conditioner, soil amendment, or any other material designed or claimed to improve the physical characteristics of the soil may be sold in this state until those products meet all of the requirements of this chapter and the regulations promulgated under this chapter, including the payment of inspection fees.
2. If the analysis shows that any soil amendment, soil conditioner, or similar product falls short of the guaranteed analysis in any one (1) ingredient or in total ingredients, then a penalty shall be assessed by the commissioner in the amount of three (3) times the larger deficiency. A minimum penalty of fifty dollars ($50.00) shall be assessed on any deficiency of such product. Investigational allowances and total ingredient values shall be established by regulation and shall follow the Official Publication of the Association of American Plant Food Control Officials if applicable. All penalties shall be paid in the manner prescribed by § 43-11-109.

Acts 1969, ch. 102, § 11; 1972, ch. 628, § 2; T.C.A., § 43-1131; Acts 1988, ch. 544, § 5.

43-11-112. Misbranded fertilizer — Distribution prohibited.

Commercial fertilizer is misbranded if it carries a false or misleading statement on the container, on the label attached to the container, or if false or misleading statements concerning the fertilizer are disseminated in any manner or by any means. It is unlawful to distribute a misbranded fertilizer.

Acts 1969, ch. 102, § 12; T.C.A., § 43-1132.

Cross-References. Distribution of adulterated fertilizer products, § 43-11-124.

43-11-113. Rules and regulations.

For the enforcement of this part, the commissioner is authorized to prescribe and, after a hearing following due notice, to enforce such rules and regulations relating to the distribution of commercial fertilizers as the commissioner may find necessary to carry into effect the full intent and meaning of this part.

Acts 1969, ch. 102, § 13; T.C.A., § 43-1133.

43-11-114. Penalty for short weight.

If any commercial fertilizer in the possession of the consumer is found by the commissioner to be short in weight, the registrant of the commercial fertilizer shall, within thirty (30) days after official notice from the commissioner, pay to the consumer a penalty equal to three (3) times the value of the actual shortage.

Acts 1969, ch. 102, § 14; T.C.A., § 43-1134; Acts 1986, ch. 659, § 9.

43-11-115. “Stop sale, use, or removal” orders.

The commissioner may issue and enforce a written or printed “stop sale, use, or removal” order to the owner or custodian of any lot of commercial fertilizer, and may order the owner or custodian to hold the fertilizer at a designated place, when the commissioner finds the commercial fertilizer is being offered or exposed for sale in violation of any of the provisions of this part, until the law has been complied with and the commercial fertilizer is released in writing by the commissioner, or the violation has been otherwise legally disposed of by written authority. The commissioner shall release the commercial fertilizer so withdrawn when the requirements of this part have been complied with and all costs and expenses incurred in connection with the withdrawal have been paid.

Acts 1969, ch. 102, § 15; T.C.A., § 43-1135.

43-11-116. Seizure, condemnation, and sale.

Any lot of commercial fertilizer not in compliance with this part shall be subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the area in which the commercial fertilizer is located. In the event the court finds the commercial fertilizer to be in violation of this part and orders the condemnation of the commercial fertilizer, it shall be disposed of in any manner consistent with the quality of the commercial fertilizer and the laws of the state; provided, that in no instance shall the disposition of the commercial fertilizer be ordered by the court without first giving the claimant an opportunity to apply to the court for release of the commercial fertilizer or for permission to process or re-label the commercial fertilizer to bring it into compliance with this part.

Acts 1969, ch. 102, § 16; T.C.A., § 43-1136.

43-11-117. Revocation of registration — Hearing — Subpoenas — Certiorari and review — New registration.

1. The commissioner has the authority to revoke any registration certificate for violation of any of the provisions of this part, or the rules and regulations promulgated under this part. The commissioner can refuse registration privileges when the product does not meet the requirements of this part. Upon information received, the commissioner shall, by written notice, establish a hearing for the registrant. The hearing shall be held within fifteen (15) days from the date of the mailing of the notice. If, after the hearing, the commissioner revokes the registration, then the right of appeal is reserved to the registrant. The commissioner has the power to subpoena any persons or records incident to the hearing and to administer oaths to those giving evidence. In case of contumacy or refusal to obey a subpoena issued to any person, any circuit or chancery court of this state within the county in which the investigation is carried on, or in which the person guilty of contumacy or refusal to obey is found or resides or transacts business, or where that person's principal place of business is located, upon application by the commissioner, shall have jurisdiction to issue to that person an order requiring that person to appear before the commissioner at a specified time and place and then and there produce evidence, if so ordered, or there to give testimony touching the matter under investigation or subject of inquiry, or answer any question, and any failure to obey such order of the court may be punished by the court as a contempt thereof as provided by law. A court reporter shall be in attendance at all registration revocation hearings.
2. The action of the commissioner may be reviewed by petition for statutory writ of certiorari addressed to the circuit or chancery court where the offense occurs, and the petition shall be filed within ten (10) days from the date of the order of revocation issued by the commissioner. Upon the grant of the writ of certiorari, the commissioner shall certify to the court a complete transcript of the proceedings instituted before the commissioner. This certified transcript shall constitute the whole record, and no additional proof or evidence shall be considered by the court. The decision of the commissioner shall remain final until the matter has been finally resolved by the courts.
3. If, after revocation of the registrant's registration, the registrant complies with requirements of the law as provided and makes manifest in writing the registrant's intentions to forthwith observe the law, upon payment of the cost of the hearing the commissioner may reissue a new registration upon payment of the required fees. Reapplication may be made on such forms as provided by the commissioner, except in no case will reissuance of registration privileges be allowed where fraudulent or deceptive practices are shown.

Acts 1969, ch. 102, § 17; T.C.A., § 43-1137.

43-11-118. Notice of violations — Hearing — Certification of facts to prosecuting attorney.

If it appears from the examination of any commercial fertilizer that any of the provisions of this part or the rules and regulations issued under this part have been violated, the commissioner shall cause notice of the violations to be given to the registrant, distributor, or possessor from whom the sample was taken; any person so notified shall be given an opportunity to be heard under such rules and regulations as may be prescribed by the commissioner. If it appears after the hearing, either in the presence or absence of the person so notified, that this part or rules and regulations issued under this part have been violated, the commissioner may certify the facts to the proper district attorney general.

Acts 1969, ch. 102, § 17; T.C.A., § 43-1138.

43-11-119. Penalty for violations.

Any person who violates or aids in violating any provision of this part, or any rules and regulations promulgated under this part, commits a Class C misdemeanor.

Acts 1969, ch. 102, § 17; T.C.A., § 43-1139; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Cited: Horn v. State, 553 S.W.2d 736, 1977 Tenn. LEXIS 588 (Tenn. 1977).

43-11-120. Prosecution of minor violations not required — Notice of warning.

Nothing in this part shall be construed as requiring the commissioner or the commissioner's representative to report for prosecution or for the institution of seizure proceedings as a result of minor violations of this part when the commissioner believes that the public interests will be best served by a suitable notice of warning in writing.

Acts 1969, ch. 102, § 17; T.C.A., § 43-1140.

43-11-121. Duty of district attorney general.

It is the duty of each district attorney general to whom any violation is reported to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay.

Acts 1969, ch. 102, § 17; T.C.A., § 43-1141.

43-11-122. Injunctions against violations.

The commissioner is authorized to make application to any chancery court of this state for a temporary or permanent injunction, restraining any person from violating or continuing to violate any of the provisions of this part or any rule or regulation promulgated under this part, notwithstanding the existence of other remedies at law. This injunction is to be issued without bond.

Acts 1969, ch. 102, § 17; T.C.A., § 43-1142.

43-11-123. Exchanges between manufacturers.

Nothing in this part shall be construed to restrict or avoid sales or exchanges of commercial fertilizers to each other by importers, manufacturers, or manipulators who mix fertilizer materials for sale or as preventing the free and unrestricted shipments of commercial fertilizer to manufacturers or manipulators who have registered their brands as required by the provisions of this part.

Acts 1969, ch. 102, § 18; T.C.A., § 43-1143.

43-11-124. Distribution of adulterated fertilizer products.

No person shall distribute an adulterated fertilizer product. A fertilizer shall be deemed to be adulterated if:

1. It contains any deleterious or harmful ingredient in sufficient amount to render it injurious to beneficial plant life when applied in accordance with directions for use on the label, or if adequate warning statements or directions for use that may be necessary to protect plant life are not shown upon the label;
2. Its composition falls below or differs from what it is purported to possess by its labeling; or
3. It contains unwanted crop seed or weed seed.

Acts 1986, ch. 659, § 10.

43-11-125. Local legislation.

1. No political subdivision may regulate the registration, packaging, labeling, sale, storage, distribution, use and application of fertilizers; and, in addition, no political subdivision may adopt or continue in effect local legislation relating to the registration, packaging, labeling, sale, storage, distribution, use or application of fertilizers. Local legislation in violation of this section is void and unenforceable.
2. Subsection (a) shall not apply in any county having a population in excess of two hundred thousand (200,000), according to the 2000 federal census or any subsequent federal census.

Acts 2008, ch. 1040, §§ 2, 3.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Effective Dates. Acts 2008, ch. 1040, § 4. May 28, 2008.

Part 2
Liming Materials [Repealed]

43-14-101. Assent of general assembly to federal act — Policy of state — Duties of trustees of university.

The assent of the general assembly is given to the provisions and requirements of the “Soil Conservation and Domestic Allotment Act” (Public Law No. 46, 74th Congress, approved April 27, 1935, as amended). The general assembly adopts as the policy of the state the policy of cooperating with the governments and agencies of other states and of the United States in carrying out the policy and purposes, specified in § 7(a) of that act of congress, and, in order to effectuate this policy, the trustees of the University of Tennessee are authorized and empowered to:

1. Formulate, with the assistance of the extension service and the agricultural experiment station, pursuant to the standards therefor set forth in § 7(a) of the Soil Conservation and Domestic Allotment Act, agricultural plans for this state for each calendar year, and from time to time, make such revisions in these plans as may be necessary to effectuate those purposes;
2. Prescribe such rules and regulations with reference to the administration of the plans, including provision for participation in the administration of the plans by county and community committees, or associations of agricultural producers, organized for such purpose, as may be necessary or expedient for the effective administration of the plans;
3. Provide in the plans for their administration by the trustees of the University of Tennessee, who are designated and authorized as the state agency of the state to administer the plans;
4. Submit the state plans to the secretary of agriculture of the United States, prior to such time and in such manner and form as the secretary may prescribe;
5. Receive on behalf of the state of Tennessee any grants made pursuant to § 7 of the Soil Conservation and Domestic Allotment Act, and to utilize and expend the grants in accordance with such state agricultural plans as may have been approved by the secretary of agriculture;
6. Utilize the available services and assistance of other state agencies of this state, including the agricultural experiment station and the extension service of the University of Tennessee, and exercise such powers and authorities, as may be necessary or proper to the performance of their duties and functions under this section;
7. Provide for the submission to the secretary of agriculture of such reports as may be required to ascertain whether the plans are being carried out according to their terms and assure the correctness, and make possible verification, of the reports; and
8. Submit to the governor an annual report for each year covering the administration and operation of the program.

Acts 1937, ch. 44, § 1; C. Supp. 1950, § 552.1 (Williams, § 552.30); T.C.A. (orig. ed.), § 43-1401; Acts 2004, ch. 517, § 5.

Compiler's Notes. The Soil Conservation and Domestic Allotment Act, referred to in this section, is compiled in 16 U.S.C. §§ 590a — 590q-3.

Acts 2004, ch. 517, § 15 provided that the University of Tennessee extension service shall spend no funds beyond those currently budgeted to accelerate the replacement of signs, letterhead, and business cards on account of the provisions of the act.

Cross-References. Agricultural District and Farmland Preservation Act, title 43, ch. 34.

Chickasaw Basin authority cooperation with county soil conservation districts and conservation boards, § 64-1-210.

County appropriations for soil conservation purposes, § 5-9-106.

Flood control authorities, title 64, chapter 3.

Soil conservation payments due deceased person, to whom made, § 31-1-107.

Watershed areas, title 69, ch. 6.

West Tennessee river basin authority cooperation with county soil conservation districts, § 64-1-1107.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339.

Comparative Legislation. Soil conservation districts:

Ala.  Code § 9-8-20 et seq.

Ark.  Code § 14-125-101 et seq.

Ga. O.C.G.A. § 2-6-1 et seq.

Ky. Rev. Stat. Ann. § 262.010 et seq.

Miss.  Code Ann. § 69-27-1 et seq.

Mo. Rev. Stat. § 278.060 et seq.

N.C. Gen. Stat. § 139-1 et seq.

Va. Code § 10.1-5 et seq.

Collateral References. Agriculture 2.

Part 2
Soil Conservation Districts

NOTES TO DECISIONS

1. Effect of Chapter.

The chapter legalizes practices that before its passage might be denounced under the antitrust statute. Dark Tobacco Growers' Co-op. Ass'n v. Mason, 150 Tenn. 228, 263 S.W. 60, 1923 Tenn. LEXIS 78 (1924); Dark Tobacco Growers' Co-op. Ass'n v. Dunn, 150 Tenn. 614, 266 S.W. 308, 1924 Tenn. LEXIS 33 (1924); State ex rel. Attorney-General v. Burley Tobacco Growers' Co-operative Asso., 2 Tenn. App. 674, — S.W. —, 1926 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1926).

2. Validity of Associations.

The fact that an association is large and powerful and may at times be guilty of acts of coercion of competitors does not render it an unlawful combination. Dark Tobacco Growers' Co-op. Ass'n v. Mason, 150 Tenn. 228, 263 S.W. 60, 1923 Tenn. LEXIS 78 (1924); Dark Tobacco Growers' Co-op. Ass'n v. Dunn, 150 Tenn. 614, 266 S.W. 308, 1924 Tenn. LEXIS 33 (1924); State ex rel. Attorney-General v. Burley Tobacco Growers' Co-operative Asso., 2 Tenn. App. 674, — S.W. —, 1926 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1926).

Cooperative marketing contracts have been held constitutional by the United States Supreme Court. Numerous references are given to comparatively uniform legislation on this subject as enacted by the various states. Liberty Whse. Co. v. Burley Tobacco Growers' Coop. Mktg. Ass'n, 276 U.S. 71, 48 S. Ct. 291, 72 L. Ed. 473, 1928 U.S. LEXIS 62 (1928).

Collateral References. 18 Am. Jur. 2d Cooperative Associations §§ 1-40.

3 C.J.S. Agriculture §§ 138-158.

Commodities broker's state-law duties to customer. 55 A.L.R.4th 394.

Cooperative marketing generally. 25 A.L.R. 1113, 33 A.L.R. 247, 47 A.L.R. 936, 77 A.L.R. 405, 98 A.L.R. 1406, 12 A.L.R.2d 130.

Debts, liability of member or former member of marketing or purchasing for its debts or losses. 96 A.L.R.3d 1243.

Agriculture 3.3-3.6, 6.

NOTES TO DECISIONS

1. Failure to Comply with Section — Effect.

This section is not mandatory. A failure to comply will not be grounds for forfeiture of charter or dissolution of the corporation. Tennessee Cotton Growers Ass'n v. Hanson, 2 Tenn. App. 118, 1926 Tenn. App. LEXIS 16 (1926).

Failure to adopt bylaws as provided by this section does not invalidate the formation of the association or render its contracts unenforceable. Tennessee Cotton Growers Ass'n v. Hanson, 2 Tenn. App. 118, 1926 Tenn. App. LEXIS 16 (1926).

Collateral References.

Bylaws. 33 A.L.R. 252, 47 A.L.R. 936, 77 A.L.R. 405, 98 A.L.R. 1406, 12 A.L.R.2d 130.

NOTES TO DECISIONS

1. Deduction for Reserves.

A cooperative marketing association has the right to make a deduction for reserves from the amount owing to the growers on the sale of crops that the association had been holding from such growers when such deductions were authorized both by law and its contract with the growers. Van Dyke v. Mid-South Cotton Growers Ass'n, 12 F. Supp. 138, 1934 U.S. Dist. LEXIS 1066 (W.D. Tenn. 1934).

Where growers pursuant to contract received 90% of the value of their cotton from a cooperative association the latter was entitled to deduct reserve before accounting for profits made on transactions with cotton growers. Van Dyke v. Mid-South Cotton Growers Ass'n, 12 F. Supp. 138, 1934 U.S. Dist. LEXIS 1066 (W.D. Tenn. 1934).

Collateral References.

Construction and effect of cooperative farm or dairy products agreement with respect to association's charges and deductions for gathering, grading, processing, shipping and marketing the products. 90 A.L.R.2d 1142.

NOTES TO DECISIONS

1. Remedies Available.

A bank taking a mortgage on tobacco with knowledge of the contract of the grower to sell the tobacco to a cooperative marketing association may be enjoined from enforcing the mortgage, notwithstanding the provision for liquidated damages in the contract. Dark Tobacco Growers' Co-op. Ass'n v. Dunn, 150 Tenn. 614, 266 S.W. 308, 1924 Tenn. LEXIS 33 (1924).

Liquidated damages were properly assessed for violation of contract by member. Tennessee Cotton Growers Ass'n v. Hanson, 2 Tenn. App. 118, 1926 Tenn. App. LEXIS 16 (1926).

Specific performance of marketing agreement was properly granted. Tennessee Cotton Growers Ass'n v. Hanson, 2 Tenn. App. 118, 1926 Tenn. App. LEXIS 16 (1926).

The remedy of injunction and specific performance as provided in this section is confined to members of the cooperative marketing association and such association may not be permitted to ignore the remedy given it against its own members and pursue an indirect remedy against nonmembers by seeking to enjoin such nonmembers from purchase of milk from members without also seeking its statutory remedy against the offending members. Knoxville Milk Producer's Ass'n v. Blake, 171 Tenn. 283, 102 S.W.2d 64, 1936 Tenn. LEXIS 91 (Tenn. Mar. 1, 1937).

In suit by cooperative milk marketing association against milk producers to enjoin breach of contract and for injunctive relief, court held that association was not entitled to injunctive relief as to one defendant who had relied on representations of association's managing agent as to right to cancel contract and as to other defendant because contract was ambiguous and would be construed against association that provided the contract. Dairymen, Inc. v. Hardin, 369 F. Supp. 1102, 1974 U.S. Dist. LEXIS 12402 (E.D. Tenn. 1974).

2. Notice and Hearing.

In suit by cooperative milk marketing association against milk producers to enjoin breach of contract and for injunctive relief it was held that this section did not modify the requirements of notice, hearing, or the usual equitable principles applicable to the granting of preliminary injunctive relief for such a literal reading of section would appear to raise due process issues. Dairymen, Inc. v. Hardin, 369 F. Supp. 1102, 1974 U.S. Dist. LEXIS 12402 (E.D. Tenn. 1974).

3. Nature of Contract.

A contract by a tobacco grower to sell and deliver to a cooperative marketing association all the tobacco produced or acquired by him during certain years, in consideration of the association's agreement to buy all of it, make rules and regulations, inspect, pool, classify, and resell it at the best prices obtainable and pay over to the grower the net amount received, is not unilateral. Dark Tobacco Growers' Co-op. Ass'n v. Mason, 150 Tenn. 228, 263 S.W. 60, 1923 Tenn. LEXIS 78 (1924).

4. Validity of Contract.

Where defendant signed, with a cooperative association, a tobacco marketing contract providing that the affidavit of the secretary of the association should conclusively establish acceptance of the contract and mailing of notice thereof, and where the minutes of the association showed such acceptance, the contract did not violate the statute of frauds since it was ratified by the separate writing of the association. Dark Tobacco Growers' Co-op. Ass'n v. Mason, 150 Tenn. 228, 263 S.W. 60, 1923 Tenn. LEXIS 78 (1924).

A contract by a tobacco grower, to sell and deliver to a cooperative marketing association all the tobacco produced or acquired by him during certain years in consideration of the association's agreement to buy all of it, make rules and regulations, inspect, pool, classify, and resell it at the best prices obtainable and pay over to the grower the net amount received, is not invalid as hard, oppressive, unjust and inequitable. Dark Tobacco Growers' Co-op. Ass'n v. Mason, 150 Tenn. 228, 263 S.W. 60, 1923 Tenn. LEXIS 78 (1924).

Collateral References.

Liquidated damages for breach of contract. 25 A.L.R. 1113, 33 A.L.R. 247, 47 A.L.R. 936, 77 A.L.R. 405, 98 A.L.R. 1406, 12 A.L.R.2d 130.

NOTES TO DECISIONS

1. Effect of Section.

This section permits the operation in Tennessee of a cooperative organized under substantially identical Kentucky law. State ex rel. Attorney-General v. Burley Tobacco Growers' Co-operative Asso., 2 Tenn. App. 674, — S.W. —, 1926 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1926); Dairymen, Inc. v. Hardin, 369 F. Supp. 1102, 1974 U.S. Dist. LEXIS 12402 (E.D. Tenn. 1974).

NOTES TO DECISIONS

1. Nature and Effect of Section.

This section states the public policy of the state. State ex rel. Attorney-General v. Burley Tobacco Growers' Co-operative Asso., 2 Tenn. App. 674, — S.W. —, 1926 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1926).

This section tends to modify the antitrust provisions of § 47-25-101. State ex rel. Attorney-General v. Burley Tobacco Growers' Co-operative Asso., 2 Tenn. App. 674, — S.W. —, 1926 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1926).

2. Factors Not Constituting Unlawful Combination.

The fact that a cooperative marketing association is large and powerful, and may sometimes be guilty of coercion or suppression of competitors, arbitrarily maintaining and fixing prices, or other acts making the combination illegal, does not render it an unlawful combination or trust. Dark Tobacco Growers' Co-op. Ass'n v. Mason, 150 Tenn. 228, 263 S.W. 60, 1923 Tenn. LEXIS 78 (1924); State ex rel. Attorney-General v. Burley Tobacco Growers' Co-operative Asso., 2 Tenn. App. 674, — S.W. —, 1926 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1926).

43-19-101. Warehouses — Persons operating.

Any person may open a warehouse for the inspection and sale of tobacco under the rules, regulations, and restrictions of this chapter.

Acts 1870-1871, ch. 65, § 2; Shan., § 3379; mod. Code 1932, § 6476; T.C.A. (orig. ed.), § 43-2101.

Cross-References. Agriculture commodities promotion, title 43, ch. 29.

Contracts to raise and sell farm products, title 43, ch. 15.

Cooperative marketing associations, title 43, ch. 16.

Promotion of leadership in agricultural and home economics programs at post-secondary institutions, title 49, ch. 7, part 7.

Sale of pecans, title 43, ch. 17.

Soybean promotion, title ch. 20.

Tobacco tax, §§ 67-4-1001 — 67-4-1023.

Comparative Legislation. Tobacco:

Ga. O.C.G.A. § 10-4-100 et seq.

Ky. Rev. Stat. Ann. § 248.010 et seq.

N.C. Gen. Stat. §§ 106-452 — 106-465.

Va. Code § 3.1-297 et seq.

Collateral References. Agriculture 3.3, 3.4(3).

Commerce 37.

Warehousemen 6.

43-19-102. Proof of sufficiency of warehouse required.

Every person opening a warehouse for the inspection and sale of tobacco shall prove to the county clerk by the testimony of two (2) impartial witnesses known to the clerk to be well qualified, from knowledge and experience, that the person is the proprietor of a good and sufficient warehouse, situated so as to be exposed to no extraordinary risk from fire or flood, and furnished besides, with all the implements necessary to the accurate weighing and inspection of tobacco.

Acts 1870-1871, ch. 65, § 4; impl. am. Acts 1877, ch. 109, § 1; Shan., § 3380; Code 1932, § 6477; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 43-2102.

43-19-103. Bond of tobacco warehouseman.

Such person shall also enter into bond, with good and sufficient security, to be approved by the county mayor, and payable to the state, in the sum of five thousand dollars ($5,000), conditioned to keep the warehouse in good condition and repair, so as effectually to protect the tobacco stored in the warehouse, that the person will not sell any tobacco that has been bought by the person or on the person's account, or purchase on such person's own account any tobacco stored in the warehouse, either directly or indirectly, and that the person will perform faithfully all the duties of warehouseman as prescribed by law.

Acts 1870-1871, ch. 65, § 4; 1889, ch. 192, § 1; Shan., § 3381; Code 1932, § 6478; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 43-2103; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

43-19-104. Fees uncollectible upon failure to give bond — Penalty for violations.

A proprietor who fails to execute a bond shall not be entitled to collect any fees on tobacco stored in the warehouse, under a penalty of one hundred dollars ($100) for each offense, to be recovered in the name of the state, one half (½) to go to the informer.

Acts 1870-1871, ch. 65, § 4; Shan., § 3382; Code 1932, § 6479; T.C.A. (orig. ed.), § 43-2104.

43-19-105. Suit on bond — Parties.

Any person aggrieved may sue on this bond for a breach thereof, in the name of the state, until the penalty is exhausted.

Acts 1870-1871, ch. 65, § 4; Shan., § 3383; Code 1932, § 6480; T.C.A. (orig. ed.), § 43-2105.

43-19-106. Warehouses to be floored and kept in repair.

1. The proprietor shall fit up the warehouse with plank floors or skids, upon which to place the tobacco, so that the hogsheads may be at least four inches (4") from the earth.
2. Any proprietor who fails to keep a warehouse in good repair, or to furnish it as in this section provided, shall forfeit two hundred dollars ($200) to the state, and is also liable upon the bond to an action for damages, at the instance of any planter or owner whose tobacco is injured.

Acts 1870-1871, ch. 65, § 6; Shan., § 3384; Code 1932, § 6481; T.C.A. (orig. ed.), § 43-2106.

43-19-107. Scales to be kept and tested.

The proprietor shall keep good and sufficient scales for weighing tobacco, which shall be tested at the beginning of each tobacco commerical year, and every three (3) months thereafter, by the keeper and sealer of weights for the county, and at any time when written application is made by two (2) or more planters or burghers.

Acts 1870-1871, ch. 65, § 7; Shan., § 3385; Code 1932, § 6482; T.C.A. (orig. ed.), § 43-2107.

43-19-108. Breaking irons for inspection, and screws for cooperage.

The proprietor shall also keep the necessary breaking irons for the proper inspection of tobacco, and screws for the proper cooperage and return of loose tobacco to the hogshead after inspection.

Acts 1870-1871, ch. 65, § 7; Shan., § 3386; Code 1932, § 6483; T.C.A. (orig. ed.), § 43-2108.

43-19-109. Attention to duty — Prompt delivery for shipment.

The proprietor or the proprietor's clerks shall be constant and prompt in their attendance at the warehouse for the reception and storage of tobacco, and promptly deliver tobacco to the planter or person entitled thereto, upon order for shipment.

Acts 1870-1871, ch. 65, § 7; Shan., § 3387; Code 1932, § 6484; T.C.A. (orig. ed.), § 43-2109.

43-19-110. Private warehouses.

Nothing in this chapter shall prevent any person from establishing a private warehouse for the storage of tobacco.

Acts 1870-1871, ch. 65, § 27; Shan., § 3407; Code 1932, § 6505; T.C.A. (orig. ed.), § 43-2130.

43-19-111. Tobacco commercial year.

The “tobacco commercial year” commences and ends on November 1 of each year.

Acts 1870-1871, ch. 65, § 26; 1889, ch. 192, § 7; Shan., § 3406; Code 1932, § 6504; T.C.A. (orig. ed.), § 43-2129.

43-19-112. Prosecution for penalties — Duties of clerk and district attorney general — Fees.

The county clerk shall attend to all prosecutions for penalties under this chapter, for the use of the state, for which the county clerk shall receive ten percent (10%) on the sums collected and paid into the state treasury. The county clerk may, also, when necessary, call on the district attorney general to give attention to prosecutions for penalties under this chapter, for which service the district attorney general shall be allowed ten dollars ($10.00) to be taxed in the bill of costs, and when collected, shall be paid into the state treasury at the same time and in the same manner as other state revenue is by law required to be paid.

Acts 1870-1871, ch. 65, § 24; impl. am. Acts 1897, ch. 41; Shan., § 3404; Code 1932, § 6503; impl. am. Acts 1978, ch. 934, §§ 22, 36; modified; T.C.A. (orig. ed.), § 43-2128.

Part 2
Tobacco Inspectors—Inspections—Violations

43-20-101. Purpose.

The purpose of this part is to promote the growth and development of the soybean industry in Tennessee by research, advertisement, promotions and education and market development, thereby promoting the general welfare of the people of this state.

Acts 1977, ch. 208, § 1; T.C.A., § 43-3001.

Cross-References. Agriculture commodities promotion, title 43, ch. 29.

Contracts to raise and sell farm products, title 43, ch. 15.

Cooperative marketing associations, title 43, ch. 16.

Promotion of leadership in agricultural and home economics programs at post-secondary institutions, title 49, ch. 7, part 7.

Sale of pecans, title 43, ch. 17.

Tobacco sales, title 43, ch. 19.

Comparative Legislation. Soybean promotion:

Ala.  Code § 2-8-80 et seq.

Ark.  Code § 2-20-401 et seq.

Ky. Rev. Stat. Ann. § 247.510 et seq.

Miss.  Code Ann. § 69-9-1 et seq.

Va. Code § 3.1-684.1 et seq.

Collateral References. Agriculture 3.3-3.6.

43-20-102. Board — Composition — Appointment — Terms — Bond of officers — Meetings — Rules and regulations — Compensation.

1. The Tennessee soybean promotion board, referred to in this chapter as the board, is created, to be composed of nine (9) members to be appointed by the commissioner of agriculture to serve for terms of three (3) years, as provided in this section. All of the nine (9) members of the board shall be producers of soybeans in the state of Tennessee. Within ten (10) days following July 1, 1977, the Tennessee Farm Bureau Federation, the Tennessee Farmers Cooperative, and the Tennessee Soybean Association shall each submit the names of six (6) soybean producers to the commissioner, and the commissioner shall appoint three (3) members from the nominees of each organization to serve on the board on rotating three-year terms. The original board shall be appointed with members of each of the organizations appointed as follows: one (1) for one (1) year, one (1) for two (2) years and one (1) for three (3) years. Each year thereafter, not less than thirty (30) days prior to the expiration of board members' terms, each organization shall submit the names of three (3) nominees to the commissioner, and succeeding boards shall be appointed by the commissioner in the same manner, giving equal representation to each organization. Vacancies that occur shall be filled in the same manner as the original appointments were made. Persons who are appointed to the board shall serve no more than two (2) consecutive terms. The commissioner or a designee from the commissioner's staff shall serve as an advisor to the board.
2. The members of the board shall meet and organize within thirty (30) days of their appointment, and shall elect a chair, vice chair and secretary-treasurer from the membership of the board, each to serve for one-year terms, whose duties shall be those customarily exercised by such officers or specifically designated by the board. The chair, vice chair and secretary-treasurer shall be bonded in an amount of not less than twenty thousand dollars ($20,000). The cost of the bonds shall be paid from the funds received under this part. The bond shall be a security for any unlawful act of such member of the board, and recovery on the bond may be had by the state for any injury by such unlawful act of the member. The board may establish rules and regulations for its own government and the administration of the affairs of the board.
3. Members of the board shall not be compensated but shall be reimbursed travel expenses in accordance with the travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.

Acts 1977, ch. 208, § 2; T.C.A., § 43-3002; Acts 1985, ch. 108, §§ 16, 17; 1987, ch. 183, §§ 3, 4; 1987, ch. 352, §§ 3, 4; 2014, ch. 620, §§ 3, 5.

Compiler's Notes. The Tennessee soybean promotion board, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Amendments. The 2014 amendment, in (a), rewrote the next to the last sentence which read: “No member of the board shall be eligible to serve successive terms on the board.”; and added (c).

Effective Dates. Acts 2014, ch. 620, § 6. April 4, 2014.

43-20-103. Assessment levied on producers — Promotion fund — Records of purchasers.

1. There is imposed and levied an assessment at the rate of one cent (1¢) per bushel on all soybeans grown within the state of Tennessee, by producers desiring to execute forms stating their desire to participate as set out in this section, and this assessment shall be deducted by the purchaser from the amount paid the producer at the first point of sale. The producer shall so indicate the choice to participate or not on proper forms provided by the department of agriculture, referred to in this part as the “department,” and that are available at every facility where soybeans are purchased from producers. If a producer elects not to participate, the purchaser shall not withhold the assessment at the time of the sale or at any later time.
2. The total assessment imposed and levied by this part shall be payable to and collected by the department, from the purchaser of such soybeans at the first point of sale, within ten (10) days after the end of each calendar quarter. The proceeds of the assessment collected by the department shall then be deposited in a special fund to be established as the “Tennessee soybean promotion fund,” and disbursement from the fund shall be made upon authorization of the commissioner of agriculture and the commissioner of finance and administration as requested, on requisitions signed by the chair and secretary-treasurer of the Tennessee soybean promotion board.
3. The commissioner shall quarterly pay over to the Tennessee soybean promotion fund all funds collected, less not more than ten percent (10%) of the gross amount collected for department expenses. The quarterly settlement to the board shall be made on or before the twentieth day of October, January, April and July of each year, and shall be accompanied by a complete report of all funds collected, disbursed, and associated departmental expenses.
4. Each purchaser shall keep a complete and accurate record of all soybeans handled by that purchaser, and shall furnish each producer with a signed sales slip showing the number of bushels purchased from the producer and the amount deducted by the purchaser for the Tennessee soybean promotion fund or noting the producer's exemption under subsection (a). Such records shall be in such form and contain such other information as the department shall by rule or regulation prescribe. The records shall be preserved by the purchaser for a period of two (2) years and shall be offered for inspection at any time upon oral or written demand by the department or any duly authorized agent or representative of the department. Every purchaser, at such time or times as the department may require, shall submit reports or other documentary information deemed necessary for the efficient and equitable collection of the assessment imposed in this part. The department has the power to cause any duly authorized agent or representative to enter upon the premises of any purchaser of soybeans and examine or cause to be examined by an agent, any books, papers and records that deal in any way with the payment of the assessment or enforcement of this part.

Acts 1977, ch. 208, § 3; T.C.A., § 43-3003; Acts 2002, ch. 737, § 3.

Cross-References. Assessment levied on producers, § 43-20-205.

Records of purchasers, § 43-20-209.

43-20-104. Failure of purchaser to file report or pay assessment — Violations — Penalties.

1. Any purchaser who fails to file a report or to pay any assessment within the time required by the department shall forfeit to the department a penalty of five percent (5%) of the assessment determined to be due, plus one percent (1%) of that amount for each month of delay or fraction thereof after the first month after the report was required to be filed or the assessment became due. The penalty shall be paid over to the board and shall be disposed of by it in the same manner as funds derived from the payment of the assessment imposed.
2. The department shall collect the penalties levied in this section, together with the delinquent assessment, by either of the following methods:
   1. By voluntary payment by the person liable; and
   2. By legal proceedings instituted in a court of competent jurisdiction.
3. Any person required to pay the assessment provided for in this part who fails to remit the same or who refuses to allow full inspection of the premises, or books, records or other documents relating to the liability of the person for the assessment imposed in this part, or who shall hinder or in any way delay or prevent an inspection, commits a Class C misdemeanor.

Acts 1977, ch. 208, § 4; T.C.A., § 43-3004; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

43-20-105. Funds used for research and promotion — Political use of funds prohibited — Reports.

1. The board shall plan and conduct a program of productive research, education, market development and advertising designed to promote the soybean industry in Tennessee, and is authorized to use the funds derived from the assessment imposed in this part for those purposes, including basic administrative expenses of the plan. The board may also, in its discretion, expend money from the Tennessee soybean promotion fund outside the state of Tennessee for such purposes as national and international research and promotional applications.
2. Funds may be expended only for the purposes set out in this part and shall not be spent in any manner for political purposes. A report of all expenditures shall be made annually, with four (4) copies of the report to be filed with each of the following: the department of agriculture, the chief clerk of the house of representatives, the chief clerk of the senate and the state library and archives.

Acts 1977, ch. 208, § 5; T.C.A., § 43-3005.

Cross-References. Use of funds, § 43-20-212.

43-20-106. Exemptions from part.

This part does not apply to any person who purchases one thousand (1,000) or fewer bushels of soybeans in any calendar year; provided, that the person is not regularly engaged in the purchase of soybeans.

Acts 1977, ch. 208, § 4; T.C.A., § 43-3006.

Part 2
Soybean Promotion Act

43-21-101. Disbursement of state aid grants by commissioner.

All grants of state aid to agricultural fairs by appropriation of the general assembly shall be disbursed by the commissioner of agriculture according to this chapter.

Acts 1949, ch. 156, § 1; C. Supp. 1950, § 552.33 (Williams, § 552.56); T.C.A. (orig. ed.), § 43-2401.

Cross-References. Exemption from business tax, § 67-4-712.

Mass gatherings, title 68, ch. 112.

Powers and duties of department of agriculture, § 4-3-203.

Premiums at fairs, § 39-17-508.

Race meeting fairs, § 36-311.

State and county fairs, § 5-9-102.

Comparative Legislation. Fairs:

Ala.  Code § 2-7-1 et seq.

Ark.  Code § 2-36-101 et seq.

Ga. O.C.G.A. § 2-2-8 et seq.

Ky. Rev. Stat. Ann. § 247.090 et seq.

Miss.  Code Ann. § 69-5-1 et seq.

Mo. Rev. Stat. § 262.470 et seq.

N.C. Gen. Stat. § 106-502 et seq.

Collateral References. Agriculture 3.

43-21-102. Fairs eligible for state aid grants — Use of funds — Forfeiture of privilege.

The commissioner of agriculture, for the purpose of fostering and developing agriculture within the state of Tennessee, is authorized to pay state aid from the grants made by the general assembly for such purposes to nonprofit agricultural shows held for the purpose of advancing agriculture. Fairs that receive state aid shall use their profits for future fair improvements, increasing their premium lists, and furthering the growth, expansion, and usefulness of fairs in every way possible, and to provide for a possible deficit at some future fair. Whenever a fair converts its profits into the treasury of a county, or pays dividends to stockholders, it forfeits its privilege of sharing in state aid.

Acts 1949, ch. 156, § 2; C. Supp. 1950, § 552.34 (Williams, § 552.57); T.C.A. (orig. ed.), § 43-2402.

43-21-103. Amount each fair to receive — Limitation on amount.

The amount of state aid given a community, county, district, division or other agricultural show shall be a percentage of the premiums paid by the show, except for special merit, as is provided in this section:

1. No community fair shall be paid more than fifty percent (50%) of its approved agricultural premiums in any one (1) year;
2. No county fair shall be paid more than fifty percent (50%) of its approved agricultural premiums in any one (1) year;
3. No district fair shall be paid more than fifty percent (50%) of its approved agricultural premiums in any one (1) year; and
4. No division fair shall be paid more than fifty percent (50%) of its approved agricultural premiums in any one (1) year.

Acts 1949, ch. 156, § 3; C. Supp. 1950, § 552.35 (Williams, § 552.58); Acts 1957, ch. 261, § 1; T.C.A. (orig. ed.), § 43-2403; Acts 1980, ch. 670, §§ 1-4.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

43-21-104. Chapter definitions.

For the purpose of this chapter, unless the context otherwise requires:

1. “Community fair” means a fair serving an area of less than an entire county, at which are exhibited, in a manner satisfactory to the commissioner of agriculture, with cash premiums being paid to the exhibitors thereof, agricultural products produced in the area served;
2. “County fair” means a fair serving an entire county;
3. “District fair” means a fair serving at least five (5) counties but less than an entire grand division of the state and paying not less than a minimum of seven thousand dollars ($7,000) in cash premiums; and
4. “Division fair” means a fair serving a major region of the state and paying more than twenty thousand dollars ($20,000) in premiums.

Acts 1949, ch. 156, § 3; C. Supp. 1950, § 552.35 (Williams, § 552.58); Acts 1957, ch. 261, § 2; 1976, ch. 633, § 1; T.C.A. (orig. ed.), § 43-2404.

Compiler's Notes. Title 48, ch. 1, part 11, referred to in this section, was repealed, effective January 1, 1988, by Acts 1986, ch. 887, § 17.05 and Acts 1987, ch. 242, § 18.05.

Cross-References. Grand division, title 4, ch. 1, part 2.

43-21-105. Aid not to exceed appropriation.

The total of state aid to be paid by the commissioner of agriculture to eligible fairs shall not exceed the appropriation made to aid agricultural fairs by the general assembly.

Acts 1949, ch. 156, § 4; C. Supp. 1950, § 552.36 (Williams, § 552.59); T.C.A. (orig. ed.), § 43-2405.

43-21-106. Premiums for enumerated exhibits may share in state aid.

The commissioner of agriculture shall grant such state aid only on cash premiums paid on approved classes of:

1. Cattle, swine, sheep, goats, farmwork stock, including mules shown to halter or farm vehicles, jack stock and light horses to halter;
2. Poultry, eggs, and dairy products;
3. Field, garden and horticultural products;
4. Home economics displays;
5. Junior agricultural projects; and
6. Agricultural educational exhibits.

Acts 1949, ch. 156, § 5; C. Supp. 1950, § 552.37 (Williams, § 552.60); Acts 1957, ch. 261, § 3; 1963, ch. 135, § 1; T.C.A. (orig. ed.), § 43-2406.

Cross-References. Lawful to contest for premiums at fairs, § 39-17-508.

43-21-107. Statement of premiums to be awarded — Allotment on basis of statement — When funds paid.

On a date to be specified by the commissioner of agriculture, the president and secretary of any fair, or agricultural society wishing to share in state aid to fairs as provided for under § 43-21-102, shall file with the commissioner a sworn statement of premiums to be paid during the current fair season for entries outlined in § 43-21-106. In addition thereto and together with sworn statement, the president and secretary shall also show correctly the exact amount paid in premiums for the same entries in the preceding fair season. State aid on the basis of premiums paid during the preceding fair season will be allocated by the commissioner for the current fair season. Whenever any fair did not operate during the preceding fair season, the commissioner is authorized in that instance alone to make an allocation of state aid based upon the estimate of premiums to be paid during the current fair season.

Acts 1949, ch. 156, § 6; C. Supp. 1950, § 552.38 (Williams, § 552.61); Acts 1955, ch. 310, § 1; T.C.A. (orig. ed.), § 43-2407.

43-21-108. List of premium winners and receipts to be furnished commissioner before payment.

Before the commissioner of agriculture pays state aid to any fair association, the association shall file with the commissioner, over the signature of the secretary, a typewritten report of approved premiums paid by the association, namely, those outlined in § 43-21-106. This report shall show the name and address of each premium winner, the amount paid to each winner, the name of each winning entry, and the total amount paid to all winners. The secretary of the fair shall send to the commissioner, together with the report outlined above, the cancelled checks, or signed receipts, used in paying the premiums listed on the report. The commissioner may accept a certified summary of premiums paid by a fair association who has paid approved agriculture premiums in excess of fifteen thousand dollars ($15,000); provided, that any fair may submit a statement prepared and certified by an accountant instead of the certified summary.

Acts 1949, ch. 156, § 7; C. Supp. 1950, § 552.39 (Williams, § 552.62); Acts 1974, ch. 430, § 1; 1978, ch. 596, § 1; T.C.A. (orig. ed.), § 43-2408.

43-21-109. Determination of compliance — Issuance of voucher upon compliance.

1. The commissioner of agriculture shall determine from the evidence outlined above, namely, reports and checks or receipts, and by any inquiries that shall be considered necessary by the commissioner, whether or not the fair has been held in accordance with all the foregoing provisions of this chapter.
2. If, in the commissioner's judgment, the fair has complied with all the requirements of this chapter, the commissioner shall issue a state voucher according to the regular accounting procedures in effect in the department of agriculture and shall pass such voucher on to the department of finance and administration for approval; but the commissioner shall refuse to pay state aid to any fair that has not been held in accordance with this chapter.

Acts 1949, ch. 156, § 8; C. Supp. 1950, § 552.40 (Williams, § 552.63); impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 43-2409.

43-21-110. Commissioner authorized to make regulations.

The commissioner of agriculture is empowered to make such rules and regulations in conformity with this chapter as, in the commissioner's judgment, may promote better agricultural fairs and agriculture in general in Tennessee.

Acts 1949, ch. 156, § 9; C. Supp. 1950, § 552.41 (Williams, § 552.64); T.C.A. (orig. ed.), § 43-2410.

43-21-111. Appropriation for state aid — Special awards for merit.

1. There is appropriated from the general funds of the state the sum of one hundred sixty thousand dollars ($160,000) annually to be disbursed for state aid to agricultural fairs in accordance with this chapter.
2. The commissioner is authorized to expend a maximum of ten percent (10%) of this annual appropriation for administration of the laws contained in this chapter, including, but not limited to, education of persons conducting fairs in the state in agricultural fair administration and the salary of a full-time employee, whose duty shall be to promote and improve the operation of fairs in this state as directed by the commissioner. The employment of such person is authorized by this subsection (b).
3. In addition, the commissioner is authorized, in the commissioner's discretion, to grant state aid to fairs that are not under this chapter entitled to state aid and to beginning fairs needing financial assistance, but these discretionary grants shall not exceed an aggregate sum of ten thousand dollars ($10,000) annually.
4. The annual appropriation after the deduction of sums used as authorized in subsections (b) and (c) for administration hereof and for discretionary aid to fairs not otherwise entitled to aid shall be divided into two (2) funds, one (1) of which shall be two thirds (2/3) of the remaining total, all of which shall be used for the award of state aid to fairs provided for in § 43-21-103 et seq., and a second fund consisting of one third (1/3) of the remaining total, which shall be disbursed as provided in subsection (e) to those fairs that attain special excellence in operations.
5. For the purpose of determining state champion county fairs, the total sum of eligible county fairs shall be divided into three (3) classifications based upon the population of the county served by a fair as reported in the most current available census. In descending order of population, the top one third (1/3) shall be classified as triple “A” (AAA) fairs, the middle one third (1/3) as double “A” (AA) fairs, and the bottom one third (1/3) as single “A” (A) fairs. There shall be a state championship award to the champion county fair each year in each of the three (3) classifications; and there shall also be designated a first runner-up and a second runner-up each year in each classification. There shall be awarded to each fair determined worthy thereof an award to be known as the special award of merit. No fair shall be eligible for more than one (1) of the four (4) designations in each classification. The commissioner is authorized to designate as deputies or agents for the purpose of determining those fairs that are entitled to the special awards such citizens of the state as the commissioner may deem capable of this determination, including, but not limited to, the persons who shall constitute the officers and directors of any state association of fairs that may be in existence; and is authorized to adopt reasonable rules, regulations and standards to be followed in the selection of those fairs worthy of the awards.
   1. The best county fair in each classification shall be entitled to receive out of the special awards fund a special merit award equal to one hundred percent (100%) of the state aid paid to it under § 43-21-103.
   2. Each of the remaining eligible fairs shall share in the balance of the special awards fund in an amount equally proportionate to the state aid paid to each individual fair under § 43-21-103.
6. Community fairs shall not participate in the fund provided for in this section for disbursement to fairs that attain special excellence.
7. If any sum remains unused out of the fund provided for distribution under § 43-21-103, that sum shall be added to the special merit award fund and distributed to the fairs entitled to special merit awards.
8. The commissioner is empowered to reduce merit awards not to exceed twenty percent (20%) in case proper records and reports are not filed as required under the merit awards program.

Acts 1957, ch. 261, § 4; 1963, ch. 135, § 2; T.C.A., § 43-2411; Acts 1980, ch. 670, § 5; 1991, ch. 150, §§ 1-3.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

43-21-112. Limitation on amount of state aid.

No fair shall receive state aid in excess of fifty percent (50%) of its approved agricultural premiums in any one (1) year under this chapter. In no case shall a fair association in any one (1) season be paid in both state aid and merit award combined more than one half (½) the amount paid by the association in approved agricultural premiums as set out in § 43-21-106.

Acts 1957, ch. 261, § 4; 1963, ch. 135, § 3; T.C.A., § 43-2412; Acts 1980, ch. 670, § 6.

Part 2
Youth Advisory Council

NOTES TO DECISIONS

1. Nuisance.

Homeowner presented a prima facie case of common-law nuisance because the noise from music concerts a neighbor hosted on his farm invaded her interests in the use and enjoyment of her property, and she was forced out of her home during daytime concerts and was a hostage to the noise at night; the rebuttable presumption in the Tennessee Right to Farm Act did not apply because the concerts bore no relation to the production of cattle, corn, vegetables, strawberries, or pumpkins at the farm. Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 2013 Tenn. LEXIS 644 (Tenn. Aug. 19, 2013).

Occurrence of some farming activity at a farm was not sufficient to shield all activities occurring at the farm from nuisance suits; the Tennessee Right to Farm Act does not extend nuisance protection to all activities occurring on a farm, but rather, the Act provides nuisance protection only to the land, buildings, and machinery used in the commercial production of farm products and nursery stock, and to certain defined activities characterized as “farm operations.” Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 2013 Tenn. LEXIS 644 (Tenn. Aug. 19, 2013).

NOTES TO DECISIONS

1. Agritourism.

Owners and operators of a farm, who operated a pumpkin patch and corn maze and conducted concerts on their property, were protected from the application of the local zoning laws by the Tennessee Right-to-Farm Act, T.C.A. § 43-26-101 et seq., because their farm activities were sufficient to meet the definition of agritourism under T.C.A. § 43-39-101(1). Additionally, a neighbor, who contended that the owners and operators were creating a nuisance, failed to rebut the presumption that the activities at the farm were not a nuisance pursuant to the Tennessee Right-to-Farm Act. Shore v. Maple Lane Farms, LLC, — S.W.3d —, 2012 Tenn. App. LEXIS 229 (Tenn. Ct. App. Apr. 11, 2012), rev'd, 411 S.W.3d 405, 2013 Tenn. LEXIS 644 (Tenn. Aug. 19, 2013).

2. Nuisance.

Homeowner presented a prima facie case of common-law nuisance because the noise from music concerts a neighbor hosted on his farm invaded her interests in the use and enjoyment of her property, and she was forced out of her home during daytime concerts and was a hostage to the noise at night; the rebuttable presumption in the Tennessee Right to Farm Act did not apply because the concerts bore no relation to the production of cattle, corn, vegetables, strawberries, or pumpkins at the farm. Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 2013 Tenn. LEXIS 644 (Tenn. Aug. 19, 2013).

Trial court erred in dismissing the easement owners' complaint in its entirety because, while they did not rebut the presumption in the Tennessee Right to Farm Act that the servient owners' farming operations was not a nuisance, they stated a claim of unreasonable interference with the use of their easement across the servient owners' farm by asserting that the servient owners impaired and substantially destroyed the easement as an access route and that the impairment was actionable in damages. Curtis v. Parchman, — S.W.3d —, 2014 Tenn. App. LEXIS 112 (Tenn. Ct. App. Feb. 27, 2014).

Collateral References.

Hog breeding, confining, or processing facility as constituting nuisance. 93 A.L.R.5th 621.

43-28-101 — 43-28-111. [Repealed.]

Compiler's Notes. Former part 1, §§ 43-28-101 — 43-28-111 (Acts 1901, ch. 29, §§ 1-6; Shan., §§ 3608a89-3608a99; Code 1932, §§ 6782-6792; T.C.A. (orig. ed.), §§ 68-101 — 68-111), concerning drifting and floating timber, was repealed by Acts 1983, ch. 179, § 1.

Part 2
Boom Companies [Repealed]

43-32-101. Short title.

This part shall be known and may be cited as the “Tennessee Commodity Dealer and Warehouse Law.”

Acts 1989, ch. 232, § 2.

Cross-References. Agriculture commodities promotion, title 43, chapter 29.

Commercial feed law, title 44, ch. 6.

Cooperative marketing associations, title 43, ch. 16.

Tobacco sales, title 43, ch. 19.

Warehouse receipts, bills of lading and other documents of title, title 47, ch. 7.

Warehouse storage of baled cotton, § 68-102-152.

Comparative Legislation. Commodity warehouses, dealers and producers:

Ala.  Code § 2-31-1 et seq.

Ark.  Code § 2-17-201 et seq.

Ga. O.C.G.A. § 2-9-30 et seq.

Ky. Rev. Stat. Ann. § 251.010 et seq.

Miss.  Code Ann. § 75-43-1 et seq.

Mo. Rev. Stat. § 411-010 et seq.

N.C. Gen. Stat. § 106-429.1 et seq.

Va. Code § 3.1-722.16 et seq.

Collateral References. 78 Am. Jur. 2d Warehouses § 1 et seq.

93 C.J.S. Warehousemen and Safe Depositories § 1 et seq.

Warehousemen 6 et seq.

43-32-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

1. “Claimant” means:
   1. Any producer or person, possessing warehouse receipts covering commodities owned or stored by the warehouseman;
   2. Any person with written evidence of ownership, other than warehouse receipts, disclosing a storage obligation of a commodity warehouseman, including scale tickets, settlement sheets and ledger cards;
   3. Any person who has lent money to a commodity warehouseman and who was to receive a warehouse receipt as security for that loan, but the commodity dealer or warehouseman failed within twenty-one (21) days after receiving the loan moneys and no warehouse receipt was issued;
   4. Any person who has surrendered warehouse receipts as a part of a commodities sale transaction, the commodity warehouseman failed within twenty-one (21) days thereafter and the person surrendering the warehouse receipt did not get fully paid therefor; or
   5. Any producer who possesses written evidence of the sale of commodities to a failed commodity dealer not limited to scale tickets, settlement sheets, price later contracts, basis contracts or similar commodities delivery contracts, but did not get fully paid therefor and who is unable to secure satisfaction of financial obligations due from a person licensed by the department in accordance with this chapter;
2. “Commissioner” means the commissioner of agriculture, or the commissioner's designated representatives;
3. “Commodity” means grain;
4. “Commodity assets” means all commodities owned or stored by a failed commodity dealer or warehouseman, including commodities in transit that were shipped by the failed commodity dealer or warehouseman or failed warehouseman and for which payment has not been received; proceeds from sale or commodities due or to become due; the equity (net of any secured financing directly associated therewith) in assets in commodity exchange commodities margin accounts; any moneys due or to become due (net of any secured financing directly associated therewith) from any future contracts on any recognized commodity exchange; any other unencumbered funds or property or equity of the failed commodity dealer or warehouseman in funds or property wherever located that can be directly traced as being from the sale of commodities by the failed commodity dealer or warehouseman or failed warehouseman; provided, that any such funds, property, or equity in funds or property shall not be deemed to be encumbered unless the encumbrance results from good and valuable consideration advanced by any secured party on a bona fide basis; and provided further, that the encumbrance is not the result of the taking of the funds, property, or equity in funds or property as additional collateral for an antecedent debt; or other unencumbered funds, property, or equity in assets;
5. “Commodity dealer” means any person engaged in the business of buying commodities from producers thereof for resale or for milling or processing. A producer of commodities buying commodities for the producer's own use as seed or feed shall not be considered as being engaged in the business of buying commodities for resale or for milling or processing;
6. “Cooperative agreement” means any agreement made by the department with a person, local unit of government, or state or federal agency as may be reasonable and proper to carry out this chapter;
7. “Department” means the Tennessee department of agriculture;
8. “Failure” means:
   1. An inability to financially satisfy a claimant in accordance with applicable statute or regulation and the time limits provided therein, if any;
   2. A declaration of insolvency;
   3. A revocation of license and leaving of outstanding indebtedness to claimants;
   4. A failure to pay claimants in the ordinary course of business where a bona fide dispute does not exist between a commodity dealer or warehouseman and a customer;
   5. A failure to apply for license renewal;
   6. A denial of license renewal; or
   7. A voluntary surrendering of a license;
9. “Grain” means corn, wheat, oats, rye, soybeans, rape seed, canola and grain sorghums;
10. “Incidental commodity dealer” means any commodities dealer who purchases commodities from producers and whose total purchases of commodities during any fiscal year do not exceed one hundred thousand dollars ($100,000);
11. “Incidental commodity dealer, nonsecured” means a commodities dealer who purchases commodities from producers and whose total purchases during any fiscal year do not exceed one hundred thousand dollars ($100,000), and who has notified the commissioner on the dealer's license application or renewal application that the dealer has opted not to maintain a security instrument;
12. “Person” includes an individual, corporation, partnership and all associations of two (2) or more persons having a joint or common interest;
13. “Producer” means the owner, tenant or operator of land in this state who has an interest in and receives all or any part of the proceeds from the sale of the commodities produced thereon;
14. “Program” means the Tennessee commodity producer indemnity program;
15. “Stored commodities” means any commodities received in any commodities warehouse, located in this state, if such commodities are not purchased and beneficially owned by the commodities warehouseman;
16. “United States Warehouse Act” means the United States Warehouse Act, enacted August 11, 1916, as amended;
17. “Valid claim” means a claim arising from a failure of a commodity dealer or warehouseman that occurs after July 1, 1989, and adjudicated valid by the commissioner, net of all credits and offsets, and in accordance with § 43-32-210;
18. “Warehouse” or “commodities warehouse” means any building, structure, or other protected enclosure in this state used for the purpose of storing commodities for a consideration;
19. “Warehouse receipt” means:
    1. A warehouse receipt issued under this chapter in accordance with the Uniform Commercial Code; or
    2. A warehouse receipt issued under the United States Warehouse Act; and
20. “Warehouseman” or “commodities warehouseman” means any person who owns, controls or manages a public commodities warehouse in which commodities are stored for compensation and who is authorized to issue warehouse receipts, and includes any grain warehouse licensed under the United States Warehouse Act that has entered into a cooperative agreement.

Acts 1989, ch. 232, § 2; 1997, ch. 387, §§ 17-19; 2006, ch. 656, § 1.

Compiler's Notes. The United States Warehouse Act, referred to in this section, is codified primarily in 7 U.S.C. § 241 et seq.

43-32-103. Federally licensed commodity warehouses — Applicability.

Any commodity warehouse licensed under the United States Warehouse Act shall be subject to this chapter. However, any federally licensed commodity warehouse that meets the minimum requirements of the federal act shall be in compliance with the requirements of this part. All public commodity warehouses licensed under the United States Warehouse Act shall file with the commissioner a copy of their current license and a copy of all subsequent licenses or renewals so as to always have a copy of a current license on file with the commissioner.

Acts 1989, ch. 232, § 3.

Compiler's Notes. The United States Warehouse Act, referred to in this section, is codified primarily in 7 U.S.C. § 241 et seq.

43-32-104. Warehouse receipts.

1. The commissioner shall prescribe the form of all warehouse receipts, and no other character or form of warehouse receipt shall be issued except those so authorized.
2. Receipts must be issued for all commodities stored in a warehouse. Receipts need not be issued against nonstorage commodities, but each warehouseman shall keep accurate records of the weights, kinds, and grades, if graded, of all lots of nonstorage commodities received into and delivered from the warehouseman's warehouse.
3. 1. No warehouse receipt shall be issued except on actual delivery of commodities into storage in the warehouse from which it purports to be issued, nor shall any receipt be issued for a greater quantity of commodities than was contained in the lot or parcel so received from storage, nor shall more than one (1) receipt be issued for the same lot of commodities, except in cases where a receipt for a part of a lot is desired, and then the aggregate receipts for a particular lot shall cover that lot and no more.
   2. No warehouseman shall issue or aid the issuance of a receipt for commodities knowing that the commodities for which the receipt is issued and has not actually been received by the warehouseman or that the commodities are not under the warehouseman's actual control at the time of issuing the receipt.

Acts 1989, ch. 232, § 4.

43-32-105. Licensing requirements — Application.

1. No person shall engage in business as a commodity dealer or warehouseman in the state of Tennessee without a license therefor issued by the department.
2. Application for a license to engage in business as a commodity dealer or warehouseman shall be filed with the department and shall contain information and be in a form as prescribed by the department by lawfully promulgated rule.
3. The application for an initial license may be filed at any time prior to beginning business as a commodity dealer or warehouseman. However, the license shall terminate ninety (90) days after the close of the commodity dealer's or warehouseman's fiscal year.
4. The application for a renewal of a license shall be filed with the department annually within ninety (90) days after the close of the commodity dealer's or warehouseman's last completed fiscal year or within such further time, not exceeding sixty (60) days, as the department, upon application, may allow.
5. For all commodity dealer or warehouseman licenses, with the exception of incidental commodity dealers, nonsecured, the application shall be accompanied by a financial statement setting forth information as prescribed by the commissioner by lawfully promulgated rule.
6. The application for a license to operate as a commodity dealer or warehouseman, as defined in this chapter, or a renewal thereof, shall be accompanied by a filing fee of one hundred fifty dollars ($150). The application for a license to operate as an incidental commodity dealer as defined in this chapter, or a renewal thereof, shall be accompanied by a filing fee of fifty dollars ($50.00).
7. The license or renewal thereof issued by the department under this section shall be posted in the principal office of the licensee in this state. A certificate shall be posted in each location listed on a licensee's application where the licensee engages in the business of buying or storing commodities. In the case of a licensee operating a truck or tractor trailer unit, the licensee is required to have a certificate that the license is in effect, and that a bond or certificate of deposit has been filed, carried in each truck or tractor trailer unit used in connection with the purchase of commodities from producers. Upon request of a licensee and payment of the fee therefor, the department shall issue to the licensee a certificate that a license has been issued or renewed and a bond filed as required by this chapter.
8. The license issued to an incidental commodity dealer, nonsecured shall clearly state: “Producers are not eligible to receive indemnification from the Tennessee grain indemnity fund if payment is not made for commodities delivered to this dealer.” Additionally, this statement shall also be posted adjacent to the license issued to the dealer in the location required by this part. The notice shall be in print no smaller than two inches (2") in letter height. This statement shall also be placed on the receipt or scale ticket issued to the seller, with a place for the seller's signature provided on each receipt or scale ticket. The signature of the seller or the seller's representative shall be affixed to each receipt or scale ticket.

Acts 1989, ch. 232, § 5; 2006, ch. 656, §§ 2, 3.

43-32-106. Financial requirements — Security bonds — Insurance — Exemptions.

1. With the exception of incidental commodity dealers, nonsecured, every person licensed as a commodity dealer or warehouseman shall have a surety bond and a fire and extended coverage insurance policy, or proof thereof, both of which shall be noncancellable for the term of the license.
2. The surety bond shall provide a reasonable level of protection for those persons storing commodities in the warehouse or selling commodities to a dealer in the event of bankruptcy, fraud, or other occurrence that would deprive the person storing or selling commodities from recovering its value. This surety bond shall be in an amount established by the commissioner by duly promulgated rules. These bonding requirements are subject to a twenty thousand dollar ($20,000) minimum and a five hundred thousand dollar ($500,000) maximum limit.
3. The fire and extended coverage insurance policy shall be in an amount set by the commissioner by rule and regulation.
4. The bond and insurance policy shall be for the benefit of the persons storing commodities with the warehouseman, and shall be conditioned to provide the protection described in this section.
5. The premiums on the bond or insurance shall be paid by the licensee.
6. Any commodity dealer or warehouseman may file with the department, in lieu of a surety bond, a certificate of deposit or an irrevocable letter of credit payable to the department with the commissioner as trustee. The principal amount of the certificate shall be the same as that required for a surety bond under this chapter and the interest thereon shall be made payable to the purchaser thereof.
7. The surety bond or certificate of deposit in effect on the date of a warehouseman's license revocation, license suspension, cessation of operation or date of default as determined by the department shall be liable for and accrue liabilities not to exceed the principal of the surety bond or certificate of deposit.
8. When the department determines that an applicant's or licensee's ability to pay producers for commodities purchased is in question, or when it determines that a commodity dealer or warehouseman does not meet the financial requirements of this chapter, it may require additional collateral security. Such collateral security may include, but is not limited to, irrevocable letters of credit, certificates of deposit, commercial surety bonds, and, on a negotiated basis, mortgages or deeds of trust on real property, personal or corporate guarantees or other guarantees. Failure to post collateral security shall constitute grounds for suspension or revocation of a license issued under this chapter.
9. Any commodity dealer or warehouseman who is of the opinion that such person's net worth and assets are sufficient to guarantee payment to producers for commodities purchased or stored by that person may request the department to be relieved of the obligation of filing a bond in excess of the minimum bond of twenty thousand dollars ($20,000). The conditions under which such requests shall be granted shall be established by the commissioner in duly promulgated rules.
10. A commodity dealer shall be exempt from the bonding requirements of this section if the commodity dealer paid producers in full prior to or on the date of every delivery of commodities accepted for one (1) year prior to the date the request to be exempt is submitted to the department.
11. A commodity dealer exempt from bonding requirements under subsection (j) who pays less than the full amount for commodities prior to or upon delivery, issues a check at the time of delivery that is later dishonored for any reason, or takes any action subsequent to delivery that causes the producer to receive less than the full amount paid at delivery, shall file and maintain a surety bond in the amount required by this section.

Acts 1989, ch. 232, § 6; 2006, ch. 656, § 4; 2014, ch. 677, § 1.

Amendments. The 2014 amendment added (j) and (k).

Effective Dates. Acts 2014, ch. 677, § 3. April 14, 2014.

43-32-107. Inspections — License suspension or revocation.

1. The department shall examine or inspect each licensed commodity dealer or warehouseman at least once each calendar year. The department may inspect the premises used by any commodity dealer or warehouseman in the conduct of business at any time, and the books, accounts, records and papers of every licensed commodity dealer or warehouseman shall at all times during business hours be subject to inspection by the department. Each commodity dealer or warehouseman may also be required to make such reports of activities, obligations, and transactions as deemed necessary by the department to protect the producer as set forth in the rules and regulations.
2. If a commodity dealer or warehouseman violates any of the provisions of this chapter, that person's license and certificate of license may be removed from that person's premises by any department employee charged with the enforcement of this chapter and returned to the department. This removal shall constitute a suspension of the license, and the licensee may request a hearing before the commissioner within ten (10) days in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
3. If the department finds that a commodity dealer is licensed as a commodities warehouse under the United States Warehouse Act and does not satisfy the requirements of part 2 of this chapter, the commissioner shall suspend or revoke the dealer's license until such time as the commodities warehouse complies with the Tennessee Commodity Producer Indemnity Act, compiled in part 2 of this chapter.
4. If any court of competent jurisdiction issues any order restraining, overturning or modifying any order of the department that suspends or revokes a commodity dealer's or warehouseman's license, the department, its officers, employees and agents shall be held harmless from any liabilities or financial obligations arising out of the operations of the commodity dealer or warehouseman while operating under the court order.

Acts 1989, ch. 232, § 7; 1997, ch. 387, § 20.

Compiler's Notes. The United States Warehouse Act, referred to in this section, is codified primarily in 7 U.S.C. § 241 et seq.

43-32-108. Insolvency — Payment defaults.

1. If it is discovered that any commodity dealer or warehouseman is insolvent, or that its continuance in business will seriously jeopardize the interest of its creditors or commodities depositors, it is the duty of the commissioner to close that dealer or warehouseman and to take charge of all the property and effects thereof, and to notify the surety. Upon taking charge of any such dealer or warehouseman, the commissioner shall, as soon as practicable, ascertain by a thorough examination into its affairs, its actual financial condition, and whenever the commissioner becomes satisfied that the commodity dealer or warehouseman cannot resume business or liquidate its indebtedness to the satisfaction of its creditors, the commissioner shall report the fact of its insolvency to the attorney general and reporter, who shall immediately upon receipt of this notice institute proper proceedings in the proper court for the purpose of having a receiver appointed.
2. With the exception of incidental commodity dealers, nonsecured, if a commodity dealer or warehouseman fails or refuses to make payment for or deliver to a producer for commodities when requested, the producer shall notify the commissioner in writing of the failure or refusal within one hundred sixty (160) days of the date of sale or the date of delivery of the commodities to the commodity dealer or warehouseman, whichever is later, but in case of deferred pricing, delayed pricing, priced later, or similar contractual arrangements, no more than two hundred seventy (270) days after the date of delivery. The commissioner, upon receiving this notice, shall take whatever action is necessary. The producer furnishing written notice within the prescribed length of time is entitled to the benefits of the commodity dealer's or warehouseman's bond if such bond is required in accordance with § 43-32-106. However, if a producer fails to furnish written notice to the commissioner within the prescribed time, then that producer is not entitled to any benefits under the commodity dealer's or warehouseman's bond and part 2 of this chapter. Commodity dealer liability under price later contracts, open price contracts, deferred price contracts, or similar agreements shall accrue under the bond in effect at the date of default as determined by the commissioner.
3. With the exception of incidental commodity dealers, nonsecured, when the commissioner has determined that a commodity dealer has defaulted payment to producers for commodities that the dealer has purchased from them, or that a warehouseman failed to deliver value for commodities stored, the commissioner shall determine through appropriate legal procedures the producers and the amount of defaulted payment, and as trustee of the bond, shall immediately after such determination call for the commodity dealer's surety bond or bonds to be paid to the commissioner for distribution to those producers who should receive the benefits. Should the defaulted amount owed producers be less than the principal amount of the bond or bonds, then the surety shall be obligated to pay only the amount of the default.
4. Notwithstanding subsections (b) and (c), an incidental commodity dealer, nonsecured, by opting not to maintain a security instrument, causes the producers from whom the dealer purchases commodities to be ineligible to receive indemnification from the Tennessee grain indemnity fund in the event the dealer fails to make payment for the commodities delivered to the dealer.

Acts 1989, ch. 232, § 8; 2006, ch. 656, §§ 5-7; 2014, ch. 677, § 2.

Amendments. The 2014 amendment added “if such bond is required in accordance with § 43-32-106” at the end of the third sentence in (b).

Effective Dates. Acts 2014, ch. 677, § 3. April 14, 2014.

43-32-109. Violations — Penalties.

1. With the exception of incidental commodity dealers, nonsecured, failure of a commodity dealer or warehouseman to file a bond or certificate of deposit and to keep the bond or certificate of deposit in force or to maintain assets adequate to assure payment to producers for commodities purchased from or stored for them shall be grounds for the suspension or revocation of a license issued under this chapter.
2. Any person who engages in business as a commodity dealer or warehouseman without securing a license, or who does not have a valid license or is in violation of this chapter or the rules and regulations promulgated under this chapter, or who impedes, obstructs, hinders, or otherwise prevents or attempts to prevent the commissioner or the commissioner's duly authorized agent in the performance of that officer's duty in connection with this chapter or its rules and regulations, or any commodity dealer or warehouseman, or any officer, agent or employee of a commodity dealer or warehouseman, who refuses to permit inspection of that person's premises, books, accounts, or records as provided in this chapter commits a Class A misdemeanor. In case of a continuing violation or violations, each day that each violation occurs constitutes a separate and distinct offense.
3. Any commodity dealer or warehouseman, or officer, agent, or employee of a commodity dealer or warehouseman, who withholds records, keeps or files false records or who inaccurately alters records or presents to the department any materially false records commits a Class E felony.
4. It is the duty of each district attorney general to whom any violation is reported to cause appropriate proceedings to be instituted and prosecuted in the appropriate court without delay. Before the commissioner reports a violation for prosecution, the commissioner may give the commodity dealer or warehouseman, or the officer, agent or employee of the commodity dealer or warehouseman, an opportunity to present such person's views at a hearing.
5. The commissioner may file a complaint and apply for, and the appropriate court may grant, a temporary restraining order or preliminary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rules and regulations promulgated under this chapter, notwithstanding the existence of other judicial remedies. Any such injunction may be entered without notice and without bond.
6. The commissioner may prohibit a commodity dealer or warehouseman from disposing of any commodities owned, in whole or in part, or held or in that person's possession, whether owned in whole or in part, or may prohibit anyone from removing any commodities in which the commodity dealer or warehouseman or producers from which that person has purchased commodities have an interest; and shall have authority for the disposition of the commodities to carry out the intent of this chapter.

Acts 1989, ch. 232, § 9; 1989, ch. 591, §§ 1, 6; 2006, ch. 656, § 8.

Code Commission Notes.

The felony in this section has been designated as a Class E felony by authority of § 40-35-110, which provides that an offense designated a felony without specification as to category is a Class E felony. See also § 39-11-114.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Cross-References. Classification of offenses, § 40-35-110.

Penalty for Class A misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

43-32-110. Use of price later contracts — Rules and regulations.

The commissioner may regulate the use of price later contracts by the promulgation of any rule or regulation the commissioner may deem necessary.

Acts 1989, ch. 232, § 10.

Part 2
Commodity Producer Indemnity Law

43-38-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Processing Cooperative Law.”

Acts 2004, ch. 534, § 1.

43-38-102. Reservation of power to amend or repeal.

The general assembly has the power to amend or repeal all or part of this chapter at any time and all domestic cooperatives subject to this chapter shall be governed by the amendment or repeal.

Acts 2004, ch. 534, § 1.

43-38-103. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

1. “Address” means mailing address, including a zip code. In the case of a registered address, the term means the mailing address and the actual office location, which may not be a post office box;
2. “Articles” or “articles of organization” means articles of organization as originally filed and subsequently amended;
3. “Association” means an organization conducting business under a cooperative plan under the laws of this state;
4. “Board” or “board of directors” means the board of directors of a cooperative;
5. “Business entity” means a corporation, limited liability company, limited liability partnership or other legal entity, association or body vested with the power or function of a legal entity;
6. “Bylaws” means a written agreement described in § 43-38-301 among the members concerning the cooperative;
7. “Commissioner” means the commissioner of agriculture;
8. “Cooperative” means an association organized under this title conducting business on a cooperative plan as provided under this chapter;
9. “Distribution” means a direct or indirect transfer of money or other property, except its own membership interests, with or without consideration, or an incurrence or issuance of indebtedness, whether directly or indirectly, including through a guaranty, by a cooperative to or for the benefit of any of its members in respect of membership interests. A distribution may be in the form of an interim distribution or a liquidation distribution; a purchase, redemption, or other acquisition of its membership interests; a distribution of indebtedness, which includes the incurrence of indebtedness, whether directly or indirectly, including through a guaranty, for the benefit of the members, or otherwise;
10. “Domestic business entity” means a business entity organized under the laws of this state;
11. “Filed with the secretary of state” means that a document meeting the applicable requirements of this chapter, signed and accompanied by the required filing fee, has been delivered to the secretary of state of this state. The secretary of state shall endorse on the document the word “Filed” or a similar word determined by the secretary of state and the month, day, and year of filing, record the document in the office of the secretary of state, and return the document to the person or entity who delivered it for filing;
12. “Financial rights” means a member's right to:
    1. Share in profits and losses as provided in §§ 43-38-901 and 43-38-902; and
    2. Share in distributions as provided in §§ 43-38-901 and 43-38-902;
13. “Governance rights” means a right to vote on one (1) or more matters and all a member's rights as a member in the cooperative other than financial rights;
14. “Majority” means, with respect to a vote of the members, if voting on a per capita basis, a majority in number of the members entitled to vote on a specific matter, or if the voting is determined otherwise, a majority of the voting interest, which may be expressed as a percentage, entitled to vote on a specific matter, and with respect to a vote of the directors, a majority in number of the directors entitled to vote on a specific matter;
15. “Member” means a person or entity reflected on the books of the cooperative as the owner of governance rights of a membership interest of the cooperative and includes patron and nonpatron members;
16. “Membership interest” means a member's interest in a cooperative consisting of a member's financial rights, a member's right to assign financial rights, a member's governance rights and a member's right to assign governance rights. Membership interest includes patron membership interests and nonpatron membership interests;
17. “Members' meeting” means a regular or special members' meeting;
18. “Nonpatron membership interest” means a membership interest that does not require the holder to conduct patronage business for or with the cooperative to receive financial rights or distributions;
19. “Patron” means a person or entity who conducts patronage business with the cooperative;
20. “Patron member” means a member holding a patron membership interest;
21. “Patron membership interest” means the membership interest requiring the holder to conduct patronage business for or with the cooperative, as specified by the cooperative to receive financial rights or distributions;
22. “Patronage” means business, transactions, or services done for or with the cooperative as defined by the cooperative;
23. “Required records” are those records required to be maintained under § 43-38-118;
24. “Secretary of state” means the person who holds the office of secretary of state of Tennessee. A filing with the secretary of state occurs by a proper filing with the office of the secretary of state. An action required by the secretary of state may be performed by employees or agents of the office of the secretary of state;
25. “Signed” means that the signature of a person has been written on a document, and, with respect to a document required by this chapter to be filed with the secretary of state, means that the document has been signed by a person authorized to do so by this chapter, the articles or bylaws, or by a resolution approved by the directors or the members. A signature on a document may be a facsimile affixed, engraved, printed, placed, stamped with indelible ink, transmitted by facsimile or electronically or in any other manner reproduced on the document;
26. “Surviving entity” means the entity resulting from a merger;
27. “Termination” means the end of a cooperative's existence as a legal entity and occurs when the articles of termination are filed with the secretary of state under § 43-38-1014 or is considered filed with the secretary of state under § 43-38-122; and
28. “Written action” means a written document signed by those persons required to take the action described.

Acts 2004, ch. 534, § 2.

43-38-104. Notice.

1. Notice under this chapter shall be in writing, except that oral notice is effective if it is reasonable under the circumstances and not prohibited by the articles or bylaws.
2. Notice may be communicated in person, by telephone, telegraph, teletype, or other form of wire or wireless communication, or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published, or by radio, television, or other form of public broadcast communication.
3. Written notice by a domestic cooperative to its members, if in a comprehensible form, is effective when mailed, if mailed postpaid and correctly addressed to the member's address shown in the cooperative's current record of members.
4. Written notice to a domestic cooperative may be addressed to its registered agent at its registered office or to the cooperative or its secretary at its principal office shown in its most recent annual report.
5. Except as provided in subsection (c), written notice, if in a comprehensible form, is effective at the earliest of the following:
   1. When received;
   2. Five (5) days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed;
   3. On the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; or
   4. Twenty (20) days after its deposit in the United States mail, as evidenced by the postmark if mailed correctly addressed, and with other than first class, registered or certified postage affixed.
6. Oral notice is effective when communicated if communicated in a comprehensible manner.
7. If this chapter prescribes notice requirements for particular circumstances, those requirements govern. If the articles or bylaws prescribe notice requirements not inconsistent with this section or other provisions of this chapter, those requirements govern.

Acts 2004, ch. 534, § 3.

43-38-105. Name of cooperative.

1. The name of a cooperative shall distinguish the cooperative upon the records in the office of the secretary of state from the name of a domestic or foreign business entity, authorized or registered to do business in this state or a name the right to which is, at the time of organization, reserved or provided for by law.
2. A cooperative may apply to the secretary of state for authorization to use a name that is not distinguishable upon the secretary of state's records from one (1) or more of the names described in subsection (a). The secretary of state shall authorize use of the indistinguishable name applied for if:
   1. The other cooperative or business entity consents to the use in writing and submits an undertaking in a form satisfactory to the secretary of state to waive its reservation or change its name to a name that is distinguishable upon the records of the secretary of state from the name of the applying cooperative;
   2. The applicant delivers to the secretary of state a certified copy of the final judgment of a court of competent jurisdiction establishing the applicant's right to use the name applied for in this state; or
   3. The other cooperative or business entity is under common control with the cooperative, consents to the use in writing, and both the other cooperative or business entity and the applicant consent in a form satisfactory to the secretary of state to use the same registered agent.
3. A domestic cooperative may elect to adopt an assumed name that complies with the requirements of subsections (a) and (b).
   1. As used in this chapter, “assumed name” means any name used by the cooperative, other than the cooperative true name, except that the following shall not constitute the use of an assumed name:
      1. The identification by a cooperative of its business with a trademark or service mark of which it is the owner or licensed user; and
      2. The use of a name of a division, not separately organized; provided, that the cooperative also clearly discloses its name.
   2. Before transacting any business in this state under an assumed name or names, the cooperative shall, for each assumed name, pursuant to resolution by its board of directors, execute and file in accordance with §§ 43-38-1101 and 43-38-1103, an application setting forth:
      1. The true cooperative name;
      2. The state or country under the laws of which it is organized;
      3. That it intends to transact business under an assumed name; and
      4. The assumed name that it proposes to use.
   3. The right to use an assumed name shall be effective for five (5) years from the date of filing by the secretary of state. A cooperative may reserve or use no more than five (5) assumed names during the same period.
   4. A cooperative shall renew the right to use its assumed name or names, if any, within the two (2) months preceding the expiration of such right, for a period of five (5) years, by filing an application to renew each assumed name and paying the renewal fee as prescribed by § 43-38-1103(a).
4. Any domestic cooperative may, pursuant to resolution by its governing body, change or cancel any or all of its assumed names by executing and filing, in accordance with §§ 43-38-1101 and 43-38-1103, an application setting forth:
   1. The true cooperative name;
   2. The state or country under the laws of which it is organized;
   3. That it intends to cease transacting business under an assumed name by changing or canceling it;
   4. The assumed name to be changed from or cancelled; and
   5. If the assumed name is to be changed, the assumed cooperative name that the cooperative proposes to use.
5. Upon the filing of an application to change an assumed name, the cooperative shall have the right to use such assumed name for the period authorized by subsection (b).
6. The right to a domestic cooperative to use an assumed name shall be cancelled by the secretary of state if:
   1. The cooperative fails to renew an assumed name;
   2. The cooperative has filed an application to change or cancel an assumed name; or
   3. A domestic cooperative has been dissolved.
7. Nothing in this section or in § 43-38-106 shall abrogate or limit the law as to unfair competition or unfair trade practice, or derogate from the common law, the principles of equity, or the statutes of this state or of the United States with respect to the right to acquire and protect trade names and trademarks.

Acts 2004, ch. 534, § 7.

43-38-106. Reservation of cooperative name with secretary of state.

1. A person may reserve the exclusive use of a cooperative name, including an assumed cooperative name, by delivering an application to the secretary of state for filing. The application must set forth the name and address of the applicant and the name proposed to be reserved. If the secretary of state finds that the cooperative name applied for meets the requirements of § 43-38-105 and is available, the secretary of state shall reserve the name for the applicant's exclusive use for a four-month period. Upon the expiration of the four-month period, the same or any other party may apply to reserve the same name.
2. The owner of a reserved cooperative name, including an assumed cooperative name, may transfer the reservation to another person by delivering to the secretary of state a notice of the transfer signed by the owner that states the name and address of the transferee.
3. The reservation of a specific name may be cancelled by filing with the secretary of state a notice, executed by the applicant or transferee, specifying the name reservation to be cancelled and the name and address of the applicant or transferee.

Acts 2004, ch. 534, § 7.

43-38-107. Registered office and registered agent.

1. Each cooperative shall have and continuously maintain in this state:
   1. A registered office, which may be, but need not be, the same as its place of business;
   2. A registered agent, which agent may be either an individual resident in this state whose business office is identical with the registered office, or a domestic or foreign business entity authorized to transact business in the state having a business office identical with the registered office.
2. If a registered agent resigns or is unable to perform the agent's duties, the domestic cooperative shall promptly designate another registered agent to the end that it shall at all times have a registered agent in this state.

Acts 2004, ch. 534, § 8.

43-38-108. Change of registered office or registered agent.

1. A cooperative may change its registered office or agent, or both, upon filing in the office of the secretary of state a statement of change setting forth:
   1. The name of the cooperative;
   2. If the address of its current registered office is to be changed, the address to which the registered office is to be changed, and the zip code for the office, and the county in which the office is located;
   3. If its current registered agent is to be changed, the name of its new registered agent; and
   4. That the address of its registered office and the address of the business office of its registered agent, as changed, will be identical.
2. If a registered agent changes the street address of the registered agent's business office, the registered agent may change the street address of the registered office of any cooperative for which that registered agent is the registered agent by notifying the cooperative in writing of the change, either manually or in facsimile, and delivering to the secretary of state for filing a statement that companies with the requirement of subsection (a) and states that the cooperative has been notified of the change. The statement shall be signed and delivered to the secretary of state. If the secretary of state finds that the statement conforms to this chapter, the secretary of state shall file the statement in the secretary of state's office, and upon filing the change of address of the registered office or the appointment of a new registered agent or both, as the case may be is effective.

Acts 2004, ch. 534, § 8.

43-38-109. Resignation of registered agent.

1. Any registered agent of a cooperative may resign as the registered agent's agency appointment by signing and filing with the secretary of state an original statement of resignation accompanied by the registered agent's certification that the registered agent has mailed a copy of the original statement of resignation to the principal office by certified mail.
2. The agency appointment is terminated, and the registered office discontinued, if so provided, on the date on which the statement is filed by the secretary of state.

Acts 2004, ch. 534, § 8.

43-38-110. Service on cooperative.

1. A domestic cooperative's registered agent is the cooperative's agent for service of process, notice, or demand required or permitted by law to be served on the cooperative.
2. Whenever a domestic cooperative fails to appoint or maintain a registered agent in this state, or whenever its registered agent cannot be found with reasonable diligence, then the secretary of state shall be an agent of such cooperative on whom any such process, notice or demand may be served.
3. This section does not prescribe the only means, or necessarily the required means, of service on a domestic cooperative.

Acts 2004, ch. 534, § 8.

43-38-111. Service — Role of secretary of state.

1. Service on the secretary of state, when the secretary of state is an agent for a domestic cooperative as provided in § 43-38-110(b), of any process, notice or demand shall be made by delivering to the office of the secretary of state the original and one (1) copy of such process, notice, or demand, duly certified by the clerk of the court in which the suit or action is pending or brought, together with the proper fee. A statement that identifies which of the grounds, as listed in § 43-38-104(b), for service on the secretary of state is applicable, must be included. The office of the secretary of state shall endorse the time of receipt upon the original and copy and immediately shall send the copy, along with a written notice that service of the original was also made, by registered or certified mail, with return receipt requested, addressed to the cooperative at its registered office or principal office as shown in the records on file in the secretary of state's office or as shown in the official registry of the state or country in which the cooperative is organized. If none of the previously mentioned addresses is available to the secretary of state, service may be made on any one (1) of the organizers at the address set forth in the articles. The secretary of state may require the plaintiff, or complainant, as the case may be, or plaintiff's attorney to furnish the latter address.
2. The refusal or failure of a cooperative to accept delivery of the registered or certified mail provided for in subsection (a), or the refusal or failure to sign the return receipt, shall not affect the validity of such service; and any such cooperative refusing or failing to accept delivery of such registered or certified mail shall be charged with knowledge of the contents of any process, notice or demand contained in the registered or certified mail.
3. When the registered or certified mail return receipt is received by the office of the secretary of state or when a domestic cooperative refuses or fails to accept delivery of the registered or certified mail and it is returned to the office of the secretary of state, the office of the secretary of state shall forward the receipt or the refused or undelivered mail to the clerk of the court in which the suit or action is pending, together with the original process, notice or demand, a copy of the notice the secretary of state sent to the defendant cooperative and the secretary of state's affidavit setting forth the secretary of state's compliance with this section. Upon receipt thereof, the clerk shall copy the affidavit on the rule docket of the court and shall mark it, the receipt or refused or undelivered mail, and the copy of notice as of the day received and place them in the file of the suit or action where the process and pleadings are kept, and such receipt or refused or undelivered mail, affidavit and a copy of the notice shall be and become a part of the technical record in the suit or action, and thereupon service on the defendant shall be complete. Service made under this section shall have the same legal force and validity as if the service had been made personally in this state.
4. Subsequent pleadings or papers permitted or required to be served on the defendant domestic cooperative may be served on the secretary of state as agent for the defendant cooperative in the same manner, at the same cost and with the same effect as process, notice or demand are served on the secretary of state as agent for the defendant cooperative under this section.
5. No appearance shall be required in the suit or action by the defendant domestic cooperative, nor shall any judgment be taken against the defendant domestic cooperative, in less than one (1) month after the date service is completed under this section.
6. The secretary of state shall keep a record of all processes, notices and demands served upon the secretary of state under this section, which record shall include the time of such service and the secretary of state's action with reference thereto.

Acts 2004, ch. 534, § 8.

43-38-112. Fees and taxes.

Cooperatives created pursuant to this chapter shall be subject to the same fees and taxed in the same manner as nonprofit cooperative associations established pursuant to chapter 16 of this title.

Acts 2004, ch. 534, § 10.

43-38-113. Powers of cooperative.

1. In addition to the other powers listed in this section, unless the articles of organization provide otherwise, a cooperative as an agent or otherwise:
   1. May perform every act and thing necessary or proper to the conduct of the cooperative's business or the accomplishment of the purposes of the cooperative;
   2. Has other rights, powers, or privileges granted by the laws of this state to other cooperatives, except those that are inconsistent with the express provisions of this chapter; and
   3. Has the powers given in this section.
2. A cooperative may:
   1. Buy, sell, or deal in its own products, the products of the cooperative's individual members, patrons or nonmembers, the products of another cooperative association, or of its members or patrons, or the products of another person or entity. A cooperative may negotiate the price at which the products the cooperative is selling may be sold;
   2. Enter into or become a party to a contract or agreement for the cooperative or for the cooperative's individual members or patrons or between the cooperative and its members;
   3. Purchase and hold, lease, mortgage, encumber, sell, exchange and convey as a legal entity real estate, buildings and personal property as the business of the cooperative may require, including the sale or other disposition of assets required by the business of the cooperative as determined by the board;
   4. Erect buildings or other structures or facilities on the cooperative's owned or leased property or on a right-of-way legally acquired by the cooperative;
   5. Issue bonds or other evidence of indebtedness and may borrow money to finance the business of the cooperative;
   6. Make advances to the cooperative's members or patrons on products delivered by the members or patrons to the cooperative;
   7. Accept deposits of money from other cooperatives, associations or members from which it is constituted;
   8. Loan or borrow money to or from individual members, cooperatives or associations from which it is constituted with security that it considers sufficient in dealing with the members, cooperatives, or associations;
   9. Purchase, acquire, hold, or dispose of the ownership interests of another business entity, whether organized under the laws of this state or another state, and assume all rights, interests, privileges, responsibilities and obligations arising out of the ownership interests;
   10. Acquire and hold ownership interests in another business entity organized under the laws of this state or another state of the United States, including a business entity organized:
       1. As a federation of associations;
       2. For the purpose of forming a district, state, or national marketing, sales or service agency; or
       3. For the purpose of acquiring marketing facilities at terminal or other markets in this state or other states;
   11. Purchase, own, and hold ownership interests, including stock and other equity interests, memberships, interests in nonstock capital, evidences of indebtedness of any domestic business entity when reasonably necessary or incidental to accomplish the purposes stated in the articles;
   12. Exercise any and all fiduciary powers in relations with members, cooperatives, associations or business entities from which it is constituted;
   13. Take, receive, and hold real and personal property, including the principal and interest of money or other funds and rights in a contract, in trust for any purpose not inconsistent with the purposes of the cooperative in its articles and may exercise fiduciary powers in relation to taking, receiving, and holding the real and personal property;
   14. Sue and be sued, complain and defend in its corporate name;
   15. Have a corporate seal, which may be altered at will, and use it, or a facsimile of it, by impressing or affixing it or in any other manner reproducing it;
   16. Make and amend bylaws, not inconsistent with its articles of organization or with the laws of this state, for managing the business and regulating the affairs of the cooperative;
   17. Make donations for the public welfare or for charitable, scientific or educational purposes;
   18. Make payments or donations, or do any other act, not inconsistent with law, that furthers the business and affairs of the cooperative;
   19. Procure insurance on the life of the directors, officers, and employees of the cooperative;
   20. Accept gifts; and
   21. Accept contributions under § 43-38-501.

Acts 2004, ch. 534, § 11.

43-38-114. Marketing contracts.

1. A cooperative and its patron member or patron may make and execute a marketing contract, requiring the patron member or patron to sell a specified portion of the patron member's or patron's agricultural product or specified commodity produced from a certain area exclusively to or through the cooperative or facility established by the cooperative.
2. If a sale is contracted to the cooperative, the sale shall transfer title to the product absolutely, except for a recorded lien or security interest, to the cooperative on delivery of the product or at another specified time if expressly provided in the contract. The contract may allow the cooperative to sell or resell the product of its patron member or patron with or without taking title to the product, and to pay the resale price to the patron member or patron, after deducting all necessary selling, overhead and other costs and expenses, including other proper reserves and interest.
3. A single term of a marketing contract shall not exceed ten (10) years, but a marketing contract may be made self-renewing for periods not exceeding five (5) years each, subject to the right of either party to terminate by giving written notice of the termination during a period of the current term as specified in the contract.
4. The bylaws or the marketing contract, or both, may set a specific sum as liquidated damages to be paid by the patron member or patron to the cooperative for breach of any provision of the marketing contract regarding the sale or delivery or withholding of a product and may provide that the member or patron shall pay the costs, premiums for bonds, expenses and fees if an action is brought on the contract by the cooperative. The remedies for breach of contract are valid and enforceable in the courts of this state. The provisions shall be enforced as liquidated damages and are not to be considered or regarded as a penalty.
5. If there is a breach or threatened breach of a marketing contract by a patron member or patron, the cooperative is entitled to an injunction to prevent the further breach of the contract and to a decree of specific performance of the contract. Pending the adjudication of the action after filing a certified complaint showing the breach or threatened breach and filing a sufficient bond, the cooperative is entitled to a temporary restraining order and preliminary injunction against the patron member or patron.
6. Any person who knowingly induces or attempts to induce any member or patron of a cooperative organized under this chapter to breach a marketing contract with the cooperative, or who maliciously and knowingly spreads false reports about the finances or management of the finances, shall be guilty of a Class B misdemeanor and subject to a fine only of not more than five hundred dollars ($500), for each such offense; provided however, that this section shall not apply to a bona fide creditor of such cooperative, or the agent or attorney of any such bona fide creditor, endeavoring to make collections of the indebtedness.
7. In addition to the penalty provided in subsection (f), the person, corporation or other entity may be liable to the cooperative for civil damages for any violation of subsection (f). Each violation shall constitute a separate offense and is subject to the penalties in this subsection (g) and subsection (f).

Acts 2004, ch. 534, § 12.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

43-38-115. Unclaimed property.

1. A cooperative may, in lieu of paying or delivering to the state the unclaimed property specified in its report of unclaimed property, distribute the unclaimed property to a corporation or organization that is exempt from taxation. A cooperative making the election to distribute unclaimed property shall file with the secretary of state:
   1. A verified written explanation of the proof of claim of an owner establishing a right to receive the abandoned property;
   2. Any error in the presumption of abandonment;
   3. The name, address, and exemption number of the corporation or organization to which the property was or is to be distributed; and
   4. The approximate date of distribution.
2. This section does not alter the procedure provided by law for cooperatives to report unclaimed property to the state and the requirement that claims of owners are made to the cooperatives for a period following the publication of lists of abandoned property.
3. The right of an owner to unclaimed property held by a cooperative is extinguished when the property is disbursed by the cooperative to a tax-exempt organization in accordance with this section.

Acts 2004, ch. 534, § 12.

43-38-116. Challenge of cooperative action.

1. Except as provided in subsection (b), the validity of a cooperative's action may not be challenged on the ground that the cooperative lacks or lacked the power to act.
2. A cooperative power to act may be challenged in a proceeding by:
   1. A member against the cooperative to enjoin the act;
   2. The cooperative directly, derivatively, or through a receiver, trustee, or other legal representative, against an incumbent or former director, officer, employee or agent of the cooperative; or
   3. The attorney general and reporter under § 43-38-1017.
3. In a member's proceeding under subdivision (b)(1) to enjoin an unauthorized cooperative act, the court may enjoin or set aside the act, if equitable and if all affected persons are parties to the proceeding, and may award damages for loss, other than anticipated profits, suffered by the cooperative or another party because of enjoining the unauthorized act.

Acts 2004, ch. 534, § 13.

43-38-117. Limitation of liability.

1. 1. Except as provided in subsections (e) and (f), a member, holder of financial interest, director, officer, employee or other agent of a cooperative does not have any personal obligation and is not otherwise personally liable for the acts, debts, liabilities, or obligations of the cooperative, whether they arise in contract, tort or otherwise.
   2. A member, holder of financial interest, director, officer, employee or other agent of a cooperative does not have any personal obligation and is not otherwise personally liable for the acts or omissions of any other member, officer, director, employee or other agent of the cooperative.
   3. Notwithstanding subsection (a), a member, holder of financial interest, director, officer, employee or other agent may become personally liable in contract, tort or otherwise by reason of that person's own acts or conduct.
2. The limited liability described in subsection (a) continues in full force regardless of any dissolution, winding up, and termination of a cooperative.
3. A member, holder of financial interest, director, or officer of a cooperative is not a proper party to a proceeding by or against a cooperative except:
   1. Where the object of the proceeding is to enforce the person's right against or liability to the cooperative;
   2. In a derivative action brought pursuant to this chapter, the articles or the bylaws; or
   3. Where the proceeding asserts personal liability of the member, holder of financial interest, director or officer described in subdivision (a)(3).
4. Notwithstanding any other provision of this chapter to the contrary, each person, member, or employee required to collect or truthfully account for, and pay over to the department of revenue any tax collected from the customers of a cooperative shall be personally liable for such taxes in the manner as responsible persons of a corporation under § 67-1-1443.
5. The failure of a cooperative to observe the usual company formalities or requirements relating to the exercise of its cooperative powers or management of its business is not a ground for imposing personal liability upon the members, directors, officers, employees or other agents of the cooperative.
6. 1. Notwithstanding any provision to the contrary, the articles may provide that one (1) or more specifically identified members, as named in the articles, shall be personally liable for all of the debts, obligations and liabilities of the cooperative, and, if so, each such specifically identified member shall be liable to the same extent as a general partner in a general partnership; provided however, that:
      1. In order to be effective, each member so identified must sign the articles, or an amendment to the articles containing this provision; and
      2. Each member shall continue to be personally liable for debts, obligations and liabilities of the cooperative until the articles are amended to strike such member's name, but the amendment must be signed by the chief manager or secretary and any remaining members who continue to be identified in the articles as being personally liable for the debts, obligations and liabilities of the cooperative.
   2. A member who is identified in the articles as being personally liable has the power to withdraw from the cooperative by filing an amendment to the articles stating that the member has withdrawn from the cooperative and shall not be liable for any future debts, obligations and liabilities of the cooperative; provided, that such an amendment to the articles shall be effective immediately, except with respect to parties that have reasonably relied upon the articles naming the person as individually liable for the debts, obligations and liabilities of the cooperative.
   3. An amendment to the articles filed pursuant to subdivisions (f)(1) and (f)(2) is not effective against parties reasonably relying upon the articles until the passage of ninety (90) days from the filing of the amendment to the articles. Notwithstanding this subdivision (f)(3), the member or former member will continue to be liable for all debts and obligations of the cooperative incurred by the cooperative while the member assumed liability.

Acts 2004, ch. 534, § 16.

43-38-118. Required records and information.

A cooperative shall keep at its principal executive office, or at another place or places within the United States determined by the board:

1. A current list of the full names and last-known business, residence or mailing addresses of the chief manager, secretary and each member and governor;
2. A current list of the full name and last-known business, residence, or mailing address of each assignee of financial rights and a description of the rights assigned;
3. A copy of the articles and all amendments to the articles;
4. Copies of the currently effective bylaws and any agreements concerning classes or series of membership interests;
5. Copies of the cooperative's federal, state, and local income tax returns and reports, if any, for the three (3) most recent years;
6. Financial statements required by § 43-38-119 and accounting records of the cooperative;
7. Records of all proceedings of members, if any;
8. Any written consents obtained from members under this chapter;
9. Records of all proceedings of the board of directors for the last three (3) years;
10. A statement of all contributions accepted under § 43-38-501, the identity of the contribution and the agreed value of the contribution;
11. A copy of all contribution agreements and contribution allowance agreements; and
12. A copy of the cooperative's most recent annual report delivered to the secretary of state under § 43-38-120.

Acts 2004, ch. 534, § 23.

43-38-119. Preparation of annual reports.

1. A cooperative shall prepare financial statements at least annually, which may be consolidated or combined statements of the cooperative and one (1) or more of its subsidiaries, as appropriate, that include a balance sheet as of the end of the reporting period and an income statement for that period. If financial statements are prepared for the cooperative on the basis of generally accepted accounting principles, the financial statements of any subsidiary must also be prepared on that basis. If requested in writing by any member or holder of financial rights, the cooperative shall furnish the statements to such person as set out in subsection (c).
2. If the annual financial statements are reported by a public accountant, the accountant's report must accompany them. If not, the statements must be accompanied by a statement of the chief manager or the person responsible for the cooperative's accounting records:
   1. Stating that person's reasonable belief whether the statements were prepared on the basis of generally accepted accounting principles and, if not, describing the basis of preparation; and
   2. Describing any respects in which the statements were not prepared on a basis for accounting consistent with the statements prepared for the preceding year.
3. A cooperative shall mail the annual financial statements to each requesting member or holder of financial rights, within one (1) month after notice of the request; provided however, that with respect to the financial statements for the most recently completed fiscal year, the statements shall be mailed to the member within four (4) months after the close of the fiscal year.

Acts 2004, ch. 534, § 23.

43-38-120. Filing of annual reports — Required information — Currency of report — Time of filing.

1. Each domestic cooperative shall deliver to the secretary of state for filing an annual report that sets forth:
   1. The name of the cooperative and the jurisdiction under whose law it is incorporated;
   2. The street address and zip code of its registered office and the name of its registered agent at that office in this state;
   3. The street address, including the zip code, of its principal executive office;
   4. The names and business addresses, including the zip code, of its board;
   5. The names and business addresses, including the zip code, of its managers or equivalent;
   6. The federal employer identification number (FEIN) of the cooperative, or if such number has not been obtained, a representation that it has been applied for; and
   7. The number of members of the cooperative at the date of filing.
2. Information in the annual report shall be current as of the date the annual report is executed on behalf of the cooperative.
3. Every cooperative shall file the annual report with the secretary of state on or before the first day of the fourth month following the end of the close of the cooperative's fiscal year.

Acts 2004, ch. 534, § 23.

43-38-121. Indemnification.

Subject to such standards and restrictions, if any, as are set forth in its articles or bylaws, a cooperative may, and shall have the power to, indemnify and hold harmless any member or officer or other person from and against any and all claims and demands whatsoever.

Acts 2004, ch. 534, § 30.

43-38-122. Merger and consolidation.

1. Unless otherwise prohibited, cooperatives organized under the laws of this state may merge or consolidate with each other or other business entities organized under the laws of this state or another state by complying with this section or the law of the state where the surviving or new business entity will exist.
2. To initiate a merger or consolidation of a cooperative, a written plan of merger or consolidation shall be prepared by the board or by a committee selected by the board to prepare a plan. The plan shall state:
   1. The names of the constituent cooperatives and other business entities;
   2. The name of the surviving or new cooperative or other business entity;
   3. The manner and basis of converting membership or ownership interests of the constituent cooperatives or business entities into membership or ownership interests in the surviving or new cooperative or business entity;
   4. The terms of the merger or consolidation;
   5. The proposed effect of the consolidation or merger on the members and patron members of the cooperative;
   6. For a consolidation, the plan shall contain the articles of the entity or organizational documents to be filed with the state in which the entity is organized; and
   7. Any other provisions required by the laws under which any party to the merger is organized.
3. The following shall apply to notice:
   1. The board shall mail a merger or consolidation or otherwise transmit or deliver notice to each member. The notice shall contain:
      1. The full text of the plan; and
      2. The time and place of the meeting at which the plan will be considered; and
   2. A cooperative with more than two hundred (200) members may provide the merger or consolidation notice in the same manner as a regular members' meeting notice.
4. The following shall apply to the adoption of a plan of merger or consolidation:
   1. A plan of merger or consolidation is adopted if:
      1. The directors recommend the plan of merger or consolidation be approved by the members, unless the directors determine that, because of conflict of interest or due to the special circumstances, it should make no recommendation, in which case the directors shall submit the plan of merger or consolidation to the members of the cooperative for approval without recommendation and, in connection with the submission, shall communicate the basis for its determination that the plan be submitted for approval without any recommendation;
      2. A quorum of the members is registered as being present or represented by mail vote at the meeting; and
      3. The plan is approved by two-thirds (2/3) of the votes cast, or for a cooperative with articles or bylaws requiring more than two-thirds (2/3) of the votes cast or other conditions for approval, the plan is approved by a proportion of the votes cast or a number of total members as required by the articles or bylaws and the conditions for approval in the articles or bylaws have been satisfied;
   2. After the plan has been adopted, articles of merger or consolidation stating the plan and that the plan was adopted according to this chapter shall be signed by the chair, vice-chair, records officer or documents officer of each cooperative merging or consolidating;
   3. The articles of merger or consolidation shall be filed in the office of the secretary of state and must set forth:
      1. The name, jurisdiction and date of formation or organization of each of the cooperatives or other entities that are a party to the merger;
      2. That a plan of merger has been approved and executed by each of the cooperatives and other business entities that are a party to the merger;
      3. The name and address of the principal executive office or equivalent thereof, of the surviving or resulting entity into which the other entities will merge;
      4. The future effective date or time, which shall be a date or time certain and which shall comply with § 43-38-1109(b) of the merger, if it is not to be effective upon the filing of the plan of merger;
      5. That the plan of merger is on file at a place of business of the surviving or resulting entity, and shall state the address thereof;
      6. That a copy of the plan of merger will be furnished by the surviving or resulting entity, on request and without cost, to any member of any domestic cooperative or any persons holding an interest in any other entity that is or was a party to the merger; and
      7. If the surviving or resulting entity is not a domestic cooperative, a statement that such surviving or resulting entity agrees that it may be served with process in this state in any action, suit or proceeding for the enforcement of any obligation of any entity that is a party to the merger, irrevocably appointing the secretary of state as its agent to accept service of process in any such action, suit or proceeding and specifying the address to which a copy of the process shall be mailed to it by the secretary of state. In the event of service hereunder upon the secretary of state, the procedures set forth in § 43-38-111 shall be applicable, except that the plaintiff in any such action, suit or proceeding shall furnish the secretary of state with the address specified in the certificate of merger provided for in this section and any other address that the plaintiff may elect to furnish, together with copies of such process as required by the secretary of state, and the secretary of state shall notify such surviving or resulting other business entity at all addresses furnished by the plaintiff in accordance with the procedures set forth in § 43-38-111;
   4. For a merger, the articles of the surviving cooperative subject to this chapter are deemed amended to the extent provided in the articles of merger; and
   5. Unless a later date is provided in the plan, the merger or consolidation is effective when the articles of merger or consolidation are filed in the office of the secretary of state.
5. The following shall apply to the effect of a merger:
   1. After the effective date, the cooperatives or other business entities that are parties to the plan become a single entity. For a merger, the surviving business entity is the business entity designated in the plan. For a consolidation, the new cooperative or other business entity is the business entity provided for in the plan. Except for the surviving or new business entity, the separate existence of all business entities that are parties to the plan cease on the effective date of the merger or consolidation. The articles of merger as filed with the office of the secretary of state shall act as notice of dissolution and articles of termination for a domestic cooperative that is not the surviving or resulting entity in the merger;
   2. The surviving or new business entity possesses all of the rights and property of each of the merged or consolidated business entities and is responsible for and assumes all their obligations and duties. The title to property of the merged or consolidated business entity is vested in the surviving or new business entity without reversion or impairment of title caused by the merger or consolidation. All liens upon any property of any of the merged business entities shall be preserved unimpaired and may be enforced against the surviving or resulting entity to the same extent as if the debts, liabilities and duties had been incurred or contracted by the surviving or resulting party; and
   3. The right of a creditor may not be impaired by the merger or consolidation without the creditor's consent.
6. The fee to be paid to the secretary of state for filing articles of merger or consolidation shall conform with § 43-38-1103.

Acts 2004, ch. 534, § 31.

43-38-123. Management of property and assets.

1. A cooperative may, by affirmative vote of a majority of the board present, upon those terms and conditions and for those considerations, which may be money, securities, or other instruments for the payment of money or other property, as the board of directors considers expedient, and without member approval:
   1. 1. Sell, lease, transfer, or otherwise dispose of all or substantially all of its property and assets in the usual and regular course of its business;
      2. Grant a security interest in all or substantially all of its property and assets whether or not in the usual and regular course of its business; or
      3. Transfer any or all of its property to a business entity all the ownership interests of which are owned by the cooperative.
   2. Unless the articles require it, approval by the members of a transaction described in subdivision (a)(1) is not required.
2. A cooperative, by affirmative vote of a majority of the board of directors present, may sell, lease, transfer, or otherwise dispose of all or substantially all of its property and assets, including its good will, not in the usual and regular course of its business, upon those terms and conditions and for those considerations, which may be money, securities, or other instruments for the payment of money or other property, as the board of directors considers expedient, when approved at a regular or special meeting of the members by the affirmative vote of the owners of a majority of the voting power of the interests entitled to vote. Written notice of the meeting must be given to all members whether or not they are entitled to vote at the meeting. The written notice must state that a purpose of the meeting is to consider the sale, lease, transfer, or other disposition of all or substantially all of the property and assets of the cooperative.
3. Confirmatory deeds, assignments, or similar instruments to evidence a sale, lease, transfer, or other disposition may be signed and delivered at any time in the name of the transferor by its current chair of the board of directors or authorized agents.
4. The transferee is liable for the debts, obligations, and liabilities of the transferor only to the extent provided in the contract or agreement between the transferee and the transferor or to the extent provided by the statutes of this state.

Acts 2004, ch. 534, § 31.

43-38-124. Promulgation of rules and regulations — Destruction of records.

The secretary of state has the authority and is empowered to perform the duties required of the secretary of state by this chapter including, without limitation, the authority to promulgate necessary and appropriate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and the power to destroy any records in the secretary of state's office concerning a cooperative ten (10) years after such cooperative has dissolved, withdrawn from the state or has had its certificate of authority revoked.

Acts 2004, ch. 534, § 33.

43-38-125. Deputies of the secretary of state.

An act of a duly authorized deputy of the secretary of state in the secretary of state's behalf under this chapter is the equivalent of the act of the secretary of state; provided, however, that the deputy signs the name of the secretary of state by the deputy as deputy.

Acts 2004, ch. 534, § 33.

Part 2
Organization of Cooperative