80-10-208. Penalties. (1) A penalty of two times the commercial value of the deficiency, as determined by the retail price based on a semiannual state survey, may be assessed:

(a) if the analysis shows that a commercial fertilizer is deficient in one or more of its guaranteed primary nutrients beyond the investigational allowance as established by regulation; or

(b) if the overall index value of the fertilizer is below the level established by regulation.

(2) When a commercial fertilizer is subject to a penalty under both subsections (1)(a) and (1)(b), the larger penalty applies.

(3) Deficiencies beyond the investigational allowances as established by regulation in any other constituent covered under 80-10-102(1)(b), (1)(c), and (1)(d) that the registrant is required to or may guarantee may be evaluated, and penalties may be assessed at two times the commercial value of the deficiency as determined by the retail price based on a semiannual state survey.

(4) Nothing contained in this section prevents any person from appealing the department's decision to a court of competent jurisdiction.

(5) All penalties assessed under this section must be paid to the consumer of the lot, not to exceed 100 tons, of commercial fertilizer represented by the sample analyzed within 3 months after the date of notice from the department to the responsible party. If at the end of the 3-month period the consumer cannot be found, receipts must be taken and promptly forwarded to the department for deposit in the state special revenue fund as provided in 80-10-207.

(6) If the department cannot reasonably determine the lot size, then the lot size is considered to be 2 tons for the purposes of calculating the commercial value of the deficiency.

(7) A deficiency in an official sample of mixed fertilizer that results from nonuniformity is not distinguishable from a deficiency to actual plant nutrient shortage and is subject to official action.