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Am. H. B. No. 421As Passed by the HouseAs Passed by the House
125th General Assembly | Regular Session | 2003-2004 |
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REPRESENTATIVES Schlichter, McGregor, Fessler, Gibbs, Collier, Aslanides, Wolpert, Seaver, Reinhard, Carmichael, Distel, Domenick, C. Evans, Niehaus, Perry, Setzer, Wagner, Widener, Yates, Driehaus, Barrett, Book, Carano, Chandler, Cirelli, Combs, D. Evans, Flowers, Grendell, Hollister, Hoops, Hughes, Schaffer, Schmidt, Seitz, G. Smith, Taylor, Wilson
A BILL
To amend sections 926.16, 926.17, 926.18, and 926.19 of the Revised Code to revise the statutes governing the Agricultural Commodity Depositors Fund.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 926.16, 926.17, 926.18, and 926.19 of the Revised Code be amended to read as follows:
Sec. 926.16. (A) There is hereby created in the state
treasury the agricultural commodity depositors fund. The state
shall not be held liable for any claims presented against the
fund under section 926.18 of the Revised Code. The fund shall
consist of a per-bushel fee remitted by licensed handlers under
this section, any sums that the director of agriculture may
collect by any legal action on behalf of the fund, and any
property or securities acquired through the use of moneys in the
fund. All investment earnings of the fund shall be credited to the fund. The moneys collected under this section and deposited in
the fund shall be used exclusively to indemnify depositors as
provided in section 926.18 of the Revised Code and for no other
purpose to pay the examination and administrative costs of this chapter as provided in division (E) of this section. (B) All licensed handlers shall remit the fee
determined by the director in accordance with section 926.17 of
the Revised Code on: (1) All agricultural commodities delivered to them for
storage under a bailment agreement or for sale, exchange, or
negotiation or solicitation of sale by depositors who produced
them or caused them to be produced; (2) All agricultural commodities delivered to them for
storage under a bailment agreement, regardless of who produced
the commodities, if a receipt is to be issued for the
commodities; (3) All agricultural commodities that are being stored by
licensed handlers who own them solely, jointly, or in common with
others and who are issuing a receipt for them in accordance with
section 926.25 of the Revised Code. The maximum number of
bushels on which a licensed handler shall be required to pay the
fee under division (B)(3) of this section between the first day
of July and the thirtieth day of June of any marketing year shall
be the greatest number of bushels of all commodities for which
receipts are outstanding at any one time during that period. (4) All agricultural commodities that are not involved in a
transaction described in division (B)(1), (2), or (3) of this section
and the monetary proceeds of which are controlled by a handler who is not
involved in the
production of the commodities and who serves as an intermediary between the
producer and a handler receiving the commodities. In such a situation, the
handler responsible for paying the producer shall remit the fee. (C) All licensed handlers shall account for and remit
moneys under division (B) of this section to the director in such
manner and using such forms as the director shall prescribe by
rule. (D) All disbursements from the fund shall be paid by the
treasurer of state pursuant to vouchers authorized by the
director. (E) All interest earned by the fees collected under this
section shall be credited to the fund and, at At the request of the
director of agriculture and to the extent necessary to pay the
examination and administrative costs of this chapter as provided
in section 926.19 of the Revised Code, may be transferred by, the
director of budget and management shall transfer not more than five hundred thousand dollars per fiscal year from the agricultural commodity depositors fund to the commodity handler
regulatory program fund created in that section 926.19 of the Revised Code to pay the examination and administrative costs of this chapter.
Sec. 926.17. (A) The director of agriculture shall
annually review the debits of and credits to the agricultural
commodity depositors fund created in section 926.16 of the
Revised Code and shall make any adjustments in the fee required
under that section that are necessary to maintain the fund within
the limits established under this section. Not later than the
first day of March of each year, the director shall determine the
proposed amount of the fee based on the expected volume of
agricultural commodities on which the fee is to be collected and
that are likely to be handled under this chapter. He The
director shall make any changes in the previous year's fee in accordance
with Chapter 119. of the Revised Code. The fee shall become effective on the
following first day of June. It shall in no case exceed one-half
of one cent per bushel on all agricultural commodities on which
the fee is to be paid. (B)(1) If, at the end of any fiscal year, the assets of the
fund exceed one-half of the sum of all claims approved during the
preceding four years or four balance exceeds ten million dollars, whichever is
greater, less any encumbered balances or pending or unsettled
claims, the fee required under division (B) of section 926.16 of
the Revised Code shall be waived until the director, with the
consent of the commodity advisory commission created in section
926.32 of the Revised Code, reinstates the fee to maintain the
liquidity of the fund as provided in division (B)(2) of this section. The (2) If, at any time, the director may establish the limits of
the assets to be maintained in determines that the fund in accordance with this
division balance, less any encumbered balances or pending or unsettled claims, is less than eight million dollars, the director, with the consent of the commodity advisory commission, may reinstate the fee required under division (B) of section 926.16 of the Revised Code. If the director reinstates the fee, the director shall notify all licensed handlers by certified mail, return receipt requested, to begin collecting the fee not later than ninety days after being notified.
Sec. 926.18. (A) When a depositor has made a demand for
settlement of an obligation concerning an agricultural commodity
on which a fee was required to be remitted under section 926.16
of
the Revised Code and the licensed handler is experiencing failure,
as
"failure" is defined in section 926.021 of the Revised Code.,
and has failed to honor
the demand, the depositor, after providing
the director of
agriculture or the director's authorized
representative with
evidence of the depositor's demand and the
dishonoring of
that demand, may file a claim with
the director not
later than six months after dishonor of the demand for
indemnification of the depositor's damages,
from the agricultural
commodity depositors fund, to be measured as
follows: (1) The commodity advisory commission created in section
926.32 of the Revised Code shall establish the dollar value of
the
loss incurred by a depositor holding a receipt or a ticket
for
agricultural commodities on which a fee was required and that
the
depositor delivered to the handler under a delayed price
agreement, bailment agreement, or feed agreement, or that
the
depositor delivered to the handler before delivery was due under a
contract or other agreement between the depositor and handler.
The
value
shall be based on the fair
market price being paid to
producers by handlers for the
commodities on the date on which the
director received notice
that the receipt or ticket was dishonored
by the handler. All
depositors filing claims under this division
shall be bound by
the value determined by the commission. (2) The dollar value of the loss incurred by a depositor
who
has sold or delivered for sale, exchange, or solicitation or
negotiation for sale agricultural commodities on which a fee was
required and who is a creditor of the handler for all or a part
of
the value of the commodities shall be based on the amount
stated
on the obligation on the date of the sale. (B) The agricultural commodity depositors fund shall be
liable to a depositor for any moneys that are owed to the depositor for commodities deposited with a licensed handler pursuant to a transaction for which the handler must remit a fee under division (B) of section 926.16 of the Revised Code and that are not recovered
through other legal and equitable remedies as follows: (1) For (a) The liability of the fund shall equal one hundred per cent of the depositor's loss as determined under division (A)(1) of this section if any of the following applies:
(i) The commodities were stored with a licensed the handler under a
bailment agreement for one hundred per cent of the
depositor's
loss as determined under division (A)(1) of this section; (2) For commodities deposited with a licensed handler
under
an agreement other than a bailment agreement for.
(ii) Payment for the commodities was tendered by the handler and subsequently dishonored, such as payment by a check for which there were insufficient funds or by a check that was written on an account that was frozen by the financial institution. (iii) The commodities were priced at the time of delivery to the handler, the delivery occurred not more than thirty days prior to the director's suspension of the handler's license under division (E), (G), or (H) of section 926.10 of the Revised Code, and the handler failed to pay for the commodities on or before the date on which the suspension occurred.
(iv) The commodities were priced at the time of delivery to the handler, the delivery occurred not more than ninety days prior to the director's suspension of the handler's license under division (E), (G), or (H) of section 926.10 of the Revised Code, the commodities were subject to a written agreement for deferred payment by the handler not later than ninety days following the date of delivery, and the handler failed to pay for the commodities on or before the payment date established in the written agreement.
(b) If the deposit of commodities that were the subject of the depositor's loss involves circumstances other than those described in division (B)(1)(a) of this section, the liability of the fund shall equal one hundred per
cent of the first ten thousand dollars of the depositor's
loss and
eighty per cent of the remaining dollar value of
that loss as
determined under divisions (A)(1) and (2) of this
section. The (2) The
aggregate
amount recovered by a depositor under all remedies shall
not
exceed one hundred per cent of the value of the depositor's
loss. If the moneys recovered by a depositor under all remedies
exceed one
hundred per cent of the value of the depositor's loss,
the
depositor shall reimburse the fund in the amount that exceeds
the value of
that loss. (C) The director, with the approval of the commodity
advisory commission, shall determine the validity of all claims
presented against the fund. A claim filed under this section for
losses on agricultural commodities other than commodities stored
under a bailment agreement shall not be valid unless the
depositor
has made a demand for settlement of the obligation
within twelve
months after the commodities are priced. Any depositor whose
claim has been refused by the director and the commission may
appeal the refusal either to the court of common pleas of
Franklin
county or the court of common pleas of the county in
which the
depositor resides. The director shall provide for payment from the fund to any
depositor whose claim has been found to be valid. (D) If at any time the fund does not contain sufficient
assets to pay valid claims, the director shall hold those claims
for payment until the fund again contains sufficient assets.
Claims against
the fund shall be paid in the order in which they
are presented and found to be valid. (E) If a depositor files an action for legal or equitable
remedies in a state or federal court having jurisdiction in those
matters that includes a claim against agricultural commodities
upon which the depositor may file a claim against the fund at a
later date, the depositor also shall file with
the director a
copy
of the action filed with the court. In the event of payment of a loss under this section, the
director shall be subrogated to the extent of the amount of any
payments to all rights, powers, privileges, and remedies of the
depositor against any person regarding the loss. The depositor shall render all necessary assistance to aid
the director in securing the rights granted in this section. No
action or claim initiated by the depositor and pending at the
time
of payment from the fund may be compromised or settled
without the
consent of the director. (F) If, prior to
June 20, 1994, a lawsuit, adversary
proceeding, or
other legal proceeding is brought against a
depositor to recover money or
payments from funds to which a
depositor has a right of
indemnification under this section, and
the depositor retains legal counsel
resulting in a cost or expense
to the depositor, upon the rendering of a
judgment or other
resolution of the lawsuit, adversary proceeding, or other
legal
proceeding, the director, in the director's discretion
and with
the approval of the commodity advisory commission, may authorize
indemnification from the fund for attorney's fees paid by the
depositor. Any
claim made by a depositor for the payment of
attorney's fees under this
division shall be made in the same
manner as a claim under division (A) of
this section. Attorney's fees payable under this division shall be limited
to the actual
hourly fee charged or one hundred dollars per hour,
whichever is less, and to
a total maximum amount of three hundred
dollars.
Sec. 926.19. (A) There is hereby created in the state
treasury the commodity handler regulatory program fund. The
moneys in the fund shall be used to pay the examination and
administrative costs of this chapter and shall consist of: (1) All revenues collected by the director of agriculture
from distribution of the receipt forms under division (B) of
section 926.20 of the Revised Code and such other forms and
registration books as the director may require by rule for the
administration of this chapter; (2) The application and examination fees collected under
division (B) of section 926.05 of the Revised Code; (3) The agricultural commodity tester certificate fees
collected under division (B) of section 926.30 of the Revised
Code; (4) Interest income Any moneys transferred from the agricultural
commodity depositors fund under section 926.16 of the Revised
Code; (5) All fines, penalties, and costs, except court costs, that are
collected under section 926.99 of the Revised Code in consequence of a
violation of this
chapter; (6) All sums collected by the director of agriculture under a contract
described in section 926.36 of the Revised Code. (B) The examination and administrative costs of this
chapter shall be computed by the director not later than the
thirty-first day of December of each even-numbered year to cover
the biennium that begins on the following first day of July. The
commodity advisory commission created in section 926.32 of the
Revised Code shall approve, and may amend, the examination and
administrative costs. The commission's decision shall be binding
on the director. The commission also at any time may
approve for
presentation to the controlling board a request to increase or
decrease the appropriation authority for the biennial examination
and administrative costs if it determines that an increase or
decrease in the cost is necessary to carry out the purpose of
this chapter. (C) If at any time the moneys deposited in the fund,
including interest income moneys transferred from the agricultural
commodity depositors fund under section 926.16 of the Revised
Code, are not sufficient to pay the examination and
administrative costs of this chapter, the director shall request
an appropriation from the general revenue fund to pay those
costs.
Section 2. That existing sections 926.16, 926.17, 926.18, and 926.19 of the Revised Code are hereby repealed.
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