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Sub. S. B. No. 309 As Passed by the HouseAs Passed by the House
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Senators Balderson, Widener, Cafaro, Seitz, Bacon, Beagle, Burke, Coley, Eklund, Faber, Gentile, Hughes, Jones, Kearney, LaRose, Lehner, Manning, Obhof, Oelslager, Patton, Peterson, Sawyer, Schaffer, Schiavoni, Skindell, Smith, Tavares, Turner
Representatives Hall, Boose, Buchy, Clyde, Ruhl, Adams, R., Barnes, Blair, Boyce, Bubp, Carney, Celebrezze, Combs, Damschroder, Derickson, Dovilla, Fedor, Gardner, Garland, Grossman, Hackett, Hagan, C., Hill, Hottinger, Johnson, Kozlowski, Letson, Lundy, Mallory, McClain, McGregor, Milkovich, Newbold, O'Brien, Phillips, Pillich, Scherer, Smith, Sprague, Wachtmann, Winburn, Young
A BILL
To amend sections 905.40 and 924.01 and to enact
sections 924.40 to 924.45 of the Revised Code to
establish procedures and requirements for the
establishment of marketing agreements for
agricultural commodities and to revise the
rule-making authority of the Director of
Agriculture regarding fertilizers, specifically
anhydrous ammonia.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 905.40 and 924.01 be amended and
sections 924.40, 924.41, 924.42, 924.43, 924.44, and 924.45 of the
Revised Code be enacted to read as follows:
Sec. 905.40. The director of agriculture shall adopt and
enforce uniform rules:
(A) Governing the storing and handling of fertilizers
anhydrous ammonia;
(B) For safety in the design, construction, location,
installation, or operation of equipment for storing, handling,
transporting, and utilizing anhydrous ammonia, aqueous ammonia, or
other solutions systems for agricultural use as agricultural
fertilizers. In addition, with regard to an anhydrous ammonia
system that is used for agricultural purposes, the rules shall
establish standards and procedures for the approval or disapproval
of the design and construction of
storage facilities for
anhydrous ammonia systems and procedures for applying for such
approval, including the form of the application.
(C) To prohibit the reselling or reuse of such containers
without authorization by the owner thereof;
(D) Requiring that guaranteed analysis be stated in a form
other than that defined in section 905.31 of the Revised Code when
another form will not impose an economic hardship on
manufacturers, distributors, and users of fertilizer by reason of
conflicting labeling requirements among the states.
Sec. 924.01. As used in sections 924.01 to 924.16 and
924.51 924.40 to 924.55 of the Revised Code:
(A) "Agricultural commodity" means any food, fiber, feed,
animal, or plant, or group of foods, fibers, feeds, animals, or
plants that the director of agriculture determines to be of the
same nature, in either a natural or a processed state.
"Agricultural commodity" does not include grain as defined in
section 924.20 of the Revised Code.
(B) "Distributor" means any person who sells, offers for
sale, markets, or distributes an agricultural commodity that the
person has purchased or acquired directly from a producer, or that
the person markets on behalf of a producer.
(C) "Handler" means any person who is in the business of
packing, grading, selling, offering for sale, or marketing any
agricultural commodity in commercial quantities as defined in a
marketing program.
(D) "Marketing program" means a program that is established
by order of the director pursuant to this chapter, to improve or
expand the market for an agricultural commodity.
(E) "Operating committee" means a committee established to
administer a marketing program for an agricultural commodity.
(F) "Person" means any natural person, partnership,
corporation, society, association, or fiduciary.
(G) "Processor" means any person who is in the business of
grading, packaging, packing, canning, freezing, dehydrating,
fermenting, distilling, extracting, preserving, grinding,
crushing, juicing, or in any other way preserving or changing the
form of any agricultural commodity.
(H) "Producer" means any person who is in the business of
producing, or causing to be produced, any agricultural commodity
for commercial sale, except that when used in reference to nursery
stock, "producer" also means a distributor, processor, handler, or
retailer of nursery stock.
Sec. 924.40. (A) For purposes of sections 924.40 to 924.46
of the Revised Code, the director of agriculture shall adopt rules
in accordance with Chapter 119. of the Revised Code that establish
procedures and requirements that are necessary to administer and
implement a marketing agreement executed under those sections for
an agricultural commodity or a region of the state concerning an
agricultural commodity that is the subject of the marketing
agreement.
(B) For purposes of sections 924.40 to 924.45 of the Revised
Code, the director may do all of the following:
(1) Approve a marketing agreement;
(2) Terminate a marketing agreement executed under those
sections if any of the following applies:
(a) The director finds that the agreement or any terms of the
agreement violate state or federal law.
(b) A producer is engaging in malfeasance, disparagement, or
unfair trade practices.
(c) The number of producers that signed the marketing
agreement becomes fewer than the minimum number of producers that
are necessary for the administration of the marketing agreement to
be financially self-supporting.
(3) Enter and inspect a facility of a producer that signed a
marketing agreement to ensure compliance with the marketing
agreement. The director may delegate that authority to another
person or contract with another person to exercise that authority.
(4) Adopt rules in accordance with Chapter 119. of the
Revised Code that establish civil penalties that the director may
assess against a person that signed a marketing agreement who
violates its terms or who violates sections 924.40 to 924.45 of
the Revised Code and rules adopted under those sections;
(5) Enforce rules under sections 924.40 to 924.45 of the
Revised Code.
Sec. 924.41. A marketing agreement that is executed in
compliance with and pursuant to sections 924.40 to 924.45 of the
Revised Code for the purpose of the voluntary participation of
persons who are signatories to the agreement may provide for the
establishment and regulation of one or more of the following:
(A) Standards of production for an agricultural commodity,
including growing and handling practices, provided that the
standards are equivalent to or more stringent than standards of
production for that agricultural commodity that are established in
the laws of this state or federal law;
(B) Standards for the establishment and use of a logo,
trademark, or brand associated with an agricultural commodity,
provided that the standards do not violate the laws of this state
or federal law;
(C) Collection of fees for services provided pursuant to the
marketing agreement;
(D) Any other topic that the director of agriculture may
allow by rule.
Sec. 924.42. (A) Producers of an agricultural commodity in
this state may present to the director of agriculture a petition
signed by at least two hundred or twenty-five per cent of all the
producers of that agricultural commodity in this state, whichever
is less, requesting the director to approve a marketing agreement
for that agricultural commodity.
(B) A petition submitted under division (A) of this section
shall include all of the following:
(1) A document that creates and identifies a provisional
board of directors for the purpose of facilitating the execution
of the proposed marketing agreement, which shall consist of at
least three, but not more than five producers of the agricultural
commodity that is the subject of the proposed marketing agreement;
(2) A proposed marketing agreement that at a minimum contains
a description of all of the following:
(a) The affected agricultural commodity or the region of the
state concerning the agricultural commodity that is the subject of
the proposed marketing agreement;
(b) Any standards that will be adopted under the proposed
marketing agreement;
(c) Procedures by which the proposed marketing agreement may
be amended;
(d) The length of time that the proposed marketing agreement
will be in effect;
(e) The size and composition of a board of directors that
will be established under the marketing agreement for the purpose
of administering the agreement;
(f) The method by which the members of the board of directors
that will be established under the marketing agreement will be
elected;
(g) The estimated costs to and rate of assessment to be made
on each person who is a signatory to the marketing agreement for
purposes of membership, inspections, or other services provided by
the board of directors under the marketing agreement in
conjunction with the person's participation in the marketing
agreement;
(h) The minimum number of producers that are necessary for
the marketing agreement to be financially self-supporting;
(i) Any other information that the director may require by
rule.
(3) An unbiased and accurate summary of the proposed
marketing agreement.
(C) The petitioners shall include with the petition submitted
under division (A) of this section all of the following:
(1) A current list of producers of the agricultural commodity
or in the region of the state concerning the agricultural
commodity that is the subject of the proposed marketing agreement.
The list may be created from existing records or records that are
available from any reliable source.
(2) An administration fee of five hundred dollars or another
amount that the director determines is necessary to pay the costs
of the director of notifying all known producers of the affected
agricultural commodity or in the region of the state concerning
the agricultural commodity that is the subject of the proposed
marketing agreement and the costs of conducting the public meeting
that is required in section 924.43 of the Revised Code concerning
the proposed marketing agreement;
(3) Information that demonstrates that the producers of the
agricultural commodity or in the region of the state concerning
the agricultural commodity that is the subject of the proposed
marketing agreement have sufficient money to pay the costs of a
board of directors to administer the marketing agreement and to
pay the costs of administration and enforcement of the marketing
agreement.
Sec. 924.43. (A) After receipt of a petition submitted under
division (A) of section 924.42 of the Revised Code, the director
of agriculture shall notify all producers included in the list
provided to the director under division (C)(1) of that section.
The notification shall contain a description of the purpose of the
proposed marketing agreement and provide the date, time, and
location of a public meeting that will be conducted by the
director as required by division (B) of this section. The
notification shall be sent through regular mail and published in
at least one publication specific to the agricultural commodity
that is the subject of the proposed marketing agreement. In
addition, the director may post the notification on the department
of agriculture's web site.
(B) Not later than thirty days after receipt of a petition
submitted under division (A) of section 924.42 of the Revised
Code, the director shall conduct a public meeting concerning the
proposed marketing agreement for an agricultural commodity or for
the region of the state concerning an agricultural commodity. At
the meeting, the director shall allow any interested person to
present information concerning the proposed marketing agreement.
(C) At least a majority of the members of the provisional
board of directors created pursuant to division (B)(1) of section
924.42 of the Revised Code shall attend the public meeting
conducted by the director pursuant to division (B) of this
section. The provisional board shall consider all of the
information presented at the public meeting before drafting a
marketing agreement that will be submitted to the director for
approval. Not later than thirty days after the public meeting, the
provisional board shall submit to the director for approval a
marketing agreement that complies with section 924.44 of the
Revised Code for an agricultural commodity or for a region of the
state concerning an agricultural commodity.
(D)(1) Not later than thirty days after receipt of a
marketing agreement, the director shall consider all of the
information presented at the public meeting conducted under
division (B) of this section before approving or denying the
marketing agreement. The director may approve a marketing
agreement only if all of the following apply:
(a) The director is unable to discover a substantially
similar marketing agreement existing for the agricultural
commodity or for the region of the state concerning the
agricultural commodity that is the subject of the marketing
agreement.
(b) The marketing agreement complies with section 924.44 of
the Revised Code.
(c) The marketing agreement complies with the laws of this
state and federal law.
(d) The director determines that the producers of the
agricultural commodity or the region of the state concerning the
agricultural commodity that is the subject of the marketing
agreement have sufficient money to pay the costs of a board of
directors to administer the marketing agreement and to pay the
costs of administration and enforcement of the marketing agreement
pursuant to the information submitted under division (C)(3) of
section 924.42 of the Revised Code.
(2) The director shall send notice to the provisional board
of directors created pursuant to division (B)(1) of section 924.42
of the Revised Code of the director's decision to approve or deny
the marketing agreement. If the director approves the marketing
agreement, the notice shall indicate the date by which producers
will be required to sign the marketing agreement, which shall be
sixty days after the date on which the director approved the
marketing agreement.
(3) If the provisional board of directors created pursuant to
division (B)(1) of section 924.42 of the Revised Code receives
notice from the director approving the marketing agreement, the
board shall notify all known producers of the agricultural
commodity or all known producers in the region in which the
agricultural commodity is produced that is the subject of the
approved marketing agreement. The notice shall include the date by
which producers must sign the marketing agreement.
(4) Following the date by which producers desiring to be
signatories to the marketing agreement are required to sign the
agreement, the director shall determine if there is a sufficient
number of producers that signed the marketing agreement for the
administration of the marketing agreement to be financially
self-supporting plus an additional twenty per cent of that number.
If the director determines that at least the minimum number of
required producers have signed the marketing agreement, the
director shall sign the marketing agreement and the marketing
agreement shall be effective on the date on which the director
signs it.
Sec. 924.44. A marketing agreement submitted by a
provisional board of directors under section 924.43 of the Revised
Code at a minimum shall contain terms that establish all of the
following:
(A) The identification of the agricultural commodity or of
the region of the state concerning the agricultural commodity that
is the subject of the marketing agreement;
(B) Standards, if any, of production for the agricultural
commodity or of marketing that will apply to each producer that
signs the marketing agreement;
(C) Standards for the use of a logo, trademark, or brand
associated with the agricultural commodity;
(D) The length of time that the marketing agreement will be
in effect, whether the marketing agreement may be renewed, and, if
so, procedures for renewal;
(E) Procedures by which the marketing agreement may be
amended. The procedures shall require the approval of the director
of agriculture and of at least a majority of the producers that
are signatories to the marketing agreement in order for an
amendment to be effective.
(F) The size and composition of a board of directors that
will administer the marketing agreement;
(G) Procedures for the election of members of the board of
directors;
(H) The lengths of terms of members of the board of directors
and conditions, if any, for reelection;
(I) Procedures for the removal of a member of the board of
directors for misfeasance, malfeasance, or nonfeasance;
(J) The costs to and rate of assessment to be made on each
person who is a signatory to the marketing agreement for purposes
of membership, inspections, or other services provided by the
board of directors under the marketing agreement in conjunction
with the person's participation in the marketing agreement;
(K) Procedures by which producers of the agricultural
commodity may become signatories to the marketing agreement after
the agreement takes effect;
(L) Procedures by which producers who are signatories to the
marketing agreement may be removed from the marketing agreement;
(M) Procedures by which producers that are signatories to the
marketing agreement may terminate the marketing agreement;
(N) Any other procedures or requirements that the director of
agriculture requires by rule.
Sec. 924.45. (A)(1) After a marketing agreement takes
effect, a board of directors that will administer the marketing
agreement shall be established in accordance with the terms of the
marketing agreement. Except for the director of agriculture or the
director's designee who shall serve as an ex officio member of the
board of directors, members of the board shall be selected only
from individuals who are producers that signed the marketing
agreement.
(2) The provisional board of directors created pursuant to
division (B)(1) of section 924.42 of the Revised Code shall verify
that the board of directors is established in accordance with the
terms of the marketing agreement. If the provisional board of
directors determines that the board of directors was not
established in accordance with the terms of the marketing
agreement, the provisional board shall notify the director who
shall take appropriate actions to ensure that the board of
directors is established in accordance with the terms of the
marketing agreement. If the provisional board of directors
determines that the board of directors was established in
accordance with the terms of the marketing agreement, the
provisional board shall cease to exist.
(B) A board of directors that is established to administer a
marketing agreement shall do all of the following:
(1) Establish priorities of the board that are consistent
with the estimated financial resources that will be generated
under the terms of the marketing agreement and with the scope of
the marketing agreement;
(2) Prepare a budget that is consistent with the estimated
financial resources that will be generated under the terms of the
marketing agreement and with the scope of the marketing agreement;
(3) Deposit all money collected pursuant to the marketing
agreement with a bank as defined in section 1101.01 of the Revised
Code or with a savings and loan association as defined in section
1151.01 of the Revised Code. The board shall use the money only to
pay the costs of the board in administering the marketing
agreement and of the activities authorized under the marketing
agreement and under sections 924.40 to 924.45 of the Revised Code.
(4) Establish a fiscal year for purposes of marketing
activities performed under the terms of the marketing agreement;
(5) Publish an activity and financial report not later than
sixty days after the end of a fiscal year. The board shall make
the report available to each producer that signed the marketing
agreement and to other interested parties.
(6) Provide annually to the director of agriculture and to
each producer that signed the marketing agreement a financial
statement that is prepared by a person who holds a current
certificate as a certified public accountant issued under Chapter
4701. of the Revised Code. The board shall provide the financial
statement to the director not later than sixty days after the end
of a fiscal year.
(7) Reimburse the department of agriculture for actual
administrative costs incurred by the department in the
administration of sections 924.40 to 924.45 of the Revised Code.
However, the amount reimbursed in a fiscal year shall not exceed
ten per cent of the total amount of money collected in that fiscal
year by the board of directors under the authority of the
marketing agreement.
(8) Perform all other acts and exercise all other powers that
are reasonably necessary, proper, or advisable to effectuate the
purposes of sections 924.40 to 924.45 of the Revised Code.
(C) A board of directors that is established to administer a
marketing agreement may do all of the following:
(1) Propose to the director rules that are necessary for the
board to perform its duties under the requirements of the
marketing agreement and under sections 924.40 to 924.45 of the
Revised Code;
(2) Hire personnel and contract for services that are
necessary for the implementation and administration of the
marketing agreement;
(3) Receive and investigate, or cause to be investigated, a
complaint concerning an alleged violation of a term of the
marketing agreement. If the board determines that such a violation
has occurred, the board shall refer the matter to the director for
enforcement.
(4) Amend the marketing agreement in accordance with the
terms of the marketing agreement and with sections 924.40 to
924.45 of the Revised Code;
(5) Terminate the marketing agreement with the approval of a
majority of the participating producers that are signatories to
the marketing agreement. If the marketing agreement is terminated,
the board shall distribute any remaining unobligated money
collected under the authority of the marketing agreement to each
participating producer in the same proportion that the producer
paid assessments under the marketing agreement.
Section 2. That existing sections 905.40 and 924.01 of the
Revised Code are hereby repealed.
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