Company: North Carolina General Assembly

North Carolina Attorney General Opinion

§ 106‑284.42.  Inspection, sampling, and analysis.
(a)	For the purpose of enforcement of this Article, and in order to determine whether its provisions have been complied with, including whether or not any operations may be subject to such provisions, officers or employees duly designated by the Commissioner upon presenting appropriate credentials, to the owner, operator, or agent in charge, are authorized (i) to enter, during normal business hours or actual operation, any factory, warehouse, or establishment within the State in which commercial feeds are manufactured, processed, packed, or held for distribution and take samples therefrom or to enter any vehicle being used to transport or hold such feeds and take samples therefrom; and (ii) to inspect during normal business hours or while in operation, such factory, warehouse, establishment or vehicle and all pertinent equipment, finished or unfinished materials, containers, and labeling therein. The inspection may include the verification of such records, and production and control procedures as may be necessary to determine compliance with this Article.
(b)	A separate presentation of appropriate credentials shall be given for each such inspection, but a presentation shall not be required for each entry made during the period covered by the inspection. Each such inspection shall be commenced and completed with reasonable promptness. Upon completion of the inspection, the person in charge of the facility or vehicle shall be so notified.
(c)	If the officer or employee making such inspection of a factory, warehouse, or other establishment has obtained a sample(s) in the course of the inspection, upon completion of the inspection and prior to leaving the premises he shall give to the owner, operator, or agent in charge a receipt describing the sample(s) obtained.
(d)	If the owner of any factory, warehouse or establishment described in subsection (a), or his agent, refuses to admit the Commissioner or his agent to inspect in accordance with subsections (a) and (b), the Commissioner or his agent is authorized to obtain without notice from any district or superior court judge within the county where the facility is located, an order directing such owner or his agent to submit the premises described in such order to inspection.
(e)	Sampling and analysis shall be conducted in accordance with methods published by the Association of Official Analytical Chemists, or in accordance with other generally recognized methods.
(f)	The results of all analyses of official samples shall be forwarded by the Commissioner to the person named on the label and to the dealer. When the inspection and analysis of an official sample indicates a commercial feed has been adulterated or misbranded, and upon written request within 30 days following receipt of the analysis, the Commissioner shall furnish to the registrant a portion of the sample concerned.
(g)	The Commissioner, in determining for administrative purposes whether a commercial feed is deficient in any component, shall be guided by the official sample as defined in G.S. 106‑284.33, subdivision (14), and obtained and analyzed as provided for in subsections (a), (c), and (e) of this section.
(h)	The Board is authorized to adopt regulations establishing permitted analytical variation providing for reasonable deviation from the guaranteed analysis.
(i)	The registrant of a commercial feed found to be in significant violative deviation from the guarantee shall be subject to a penalty for this deviation.
(j)	If the analysis of a sample shows a deviation from permitted analytical variation established by the Board, the registrant or other responsible person shall be penalized according to the following schedule:

Component Deviating	Method of Penalty Assessment
Crude protein		Three times the relative percentage * of deviation from the guarantee times the retail value of the commercial feed.
Crude fat		Ten percent (10%) of retail value of the lot of commercial feed.
Crude fiber		Ten percent (10%) of retail value of the lot of commercial feed.
Vitamins		Ten percent (10%) of retail value of the lot of commercial feed.
Minerals		Ten percent (10%) of retail value of the lot of commercial feed.
Crude protein 
equivalent from
nonprotein
nitrogen		Ten percent (10%) of retail value of the lot of commercial feed.
Animal drugs		Twenty percent (20%) of retail value of the lot of commercial feed.
Antibiotics		Twenty percent (20%) of retail value of the lot of commercial feed.
Other analysis		Ten percent (10%) of retail value of the lot of commercial feed.
* Example, a feed guaranteed 16.0% protein and assaying only 14.0%, will be considered as 2.0%/16.0%, or 12.5% deficient in protein. The penalty will be computed as 3 x 0.125 x retail value of the feed, or 0.375 x retail value of the feed.

(k)	Penalties for multiple deficiencies within a sample shall be additive; provided that in no case shall the penalty exceed the retail value of the product. The minimum penalty under any of the foregoing provisions shall be twenty‑five dollars ($25.00) or the retail value of the product whichever is smaller, regardless of the value of the deficiency.
(l)	Within 60 days from the date of written notice by the Commissioner or his duly designated agent to the manufacturer, guarantor, dealer or agent, all penalties assessed and collected under this section shall be paid to the purchaser of the lot of feed or canned pet food represented by the sample analyzed. When such penalties are paid, receipts shall be taken and promptly forwarded to the Commissioner of Agriculture. If said consumers cannot be found, the clear proceeds of the penalty assessed shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2. (1973, ch. 771, s. 13; 1997‑261, s. 109; 1998‑215, s. 11.)

G.S. 106-284.42		Page