SECTIONS 58921-58941 - California Statutes

FOOD AND AGRICULTURAL CODE

SECTION 58921-58941

58921. Except as otherwise provided in Section 58926, each
marketing order which is issued pursuant to this chapter shall
provide for the levying and collection of assessments in sufficient
amounts to defray the necessary expenses which are incurred by the
director in the formulation, issuance, administration, and
enforcement of the marketing order. If the marketing order authorizes
the carrying out of advertising and sales promotion plans, it shall
also provide for the levying and collection of assessments in
sufficient amounts to defray the expenses of such activities. No
assessment for advertising or sales promotion activities shall,
however, be levied under any marketing order with respect to the
marketing and handling of green ripe olives except that green ripe
olives may be assessed for their proportionate share of
administrative costs.

58922. Each marketing order shall indicate the maximum rate of any
assessment which may be collected and the proportion, if any, of each
assessment which is payable by each producer and handler that is
directly regulated or affected by such marketing order.

58923. The advisory board which is appointed by the director to
assist him in administering each marketing order shall recommend to
the director, from time to time, budgets to cover necessary expenses,
and budgets to cover the expenses of carrying out sales promotion
plans if such plans are authorized in the marketing order, and the
assessment rates which are necessary to provide sufficient funds. If
the director finds that each such budget and assessment rate are
proper and equitable and will provide sufficient moneys to defray the
expenses which may be incurred, he may approve such budget and rate
of assessment and order that each producer and handler so assessed
shall pay to the director, at such times and in such installments as
the director may prescribe, an assessment which is based upon the
units in which such commodity is marketed, or upon any other uniform
basis which the director determines to be reasonable and equitable.

58924. The amount of the assessment for necessary expenses shall
not, however, exceed the following:
(a) In the case of producers, 2 1/2 percent of the gross dollar
volume of sales of the commodity which is affected by all such
producers regulated by such marketing order.
(b) In the case of processors, distributors, or other handlers, 2
1/2 percent of the gross dollar volume of purchases of the commodity
which is affected by the marketing order from producers or of the
gross dollar volume of sales of the commodity which is affected by
the marketing order and handled by all such processors, distributors,
or other handlers that are regulated by such marketing order during
the marketing season during which such marketing order is effective.

58925. Any assessment rate which is established for assessments to
defray the expenses of advertising and sales promotion plans shall be
in an amount which does not exceed 4 percent of the gross dollar
volume of sales by all producers or by all processors, distributors,
or other handlers of such commodity which is regulated by such
marketing order during the marketing season during which such
marketing order is effective.

58926. In lieu of the assessments to defray the costs of
formulation, issuance, administration, and enforcement and
advertising or sales promotion provided for in Section 58921, if the
marketing order contains provisions for advertising or sales
promotion as authorized in this chapter, the director may approve and
fix an assessment for producers and an assessment for handlers as
the case may be, not exceeding 6 1/2 percent of the gross dollar
volume of sales of such commodity by all producers, or by all
processors, distributors, or other handlers of such commodity
regulated by such marketing order during the marketing season during
which such marketing order is effective. The method and manner of
assessment and collection of such assessment, and the limitations and
restrictions applicable thereupon, shall conform in all respects
with the provisions of this article regarding assessments for
advertising and sales promotion, except as to the maximum amount of
such assessment.

58927. If the director approves and fixes a single assessment, the
advisory board shall recommend and the director may approve the
proportions of such assessment which may be expended to defray the
costs of formulation, issuance, administration, and enforcement of
the marketing order and that which may be expended for such
advertising or sales promotion program. The proportion of such
assessment which may be allocated in such manner to defray the cost
of such administrative activities for such marketing order shall not,
however, exceed the maximum amount which is authorized in Section
58924.

58928. If any advisory board of any marketing order has reason to
believe that the administration of a marketing order will be
facilitated or the attainment of the purposes and objectives of the
marketing order will be promoted thereby, the advisory board may
borrow money with or without interest to carry out any provision of
any marketing order which is authorized by this chapter, and may
hypothecate anticipated assessment collections that are applicable to
such respective provisions.

58929. Any assessment which is levied as provided in this article,
in such specified amount as may be determined by the director
pursuant to this chapter, is a personal debt of every person so
assessed and shall be due and payable to the director if payment is
called for by the director. If any such person fails to pay any such
assessment upon the date which is determined by the director, the
director may file a complaint against such person in a state court of
competent jurisdiction for the collection of the assessment.

58930. If any producer or handler that is duly assessed pursuant to
the provisions of this chapter fails to pay to the director the
amount so assessed on or before the date which is specified by the
director, the director may add to such unpaid assessment an amount
not exceeding 10 percent of such unpaid assessment to defray the cost
of enforcing the collection of such unpaid assessment. In addition
to such payment for the cost of enforcing such collection, any such
producer or handler shall pay to the director a penalty of 5 percent
for each 30 days of the unpaid balance for each 30 days the
assessment is unpaid, prorated over the days unpaid, commencing 30
days after notice has been given to such producer or handler of his
failure to pay the assessment on the date required, unless the
director determines, to his satisfaction, that such failure to pay is
due to resonable cause beyond the producer's or handler's control.
Such penalty shall not exceed 50 percent of the total amount of the
assessment due.

58931. The director may require the persons that are assessed to
deposit with him in advance the following amounts:
(a) An amount for necessary expenses.
(b) An amount which shall not exceed 25 percent of the assessment
to cover the costs of advertising or sales promotion plans which are
incurred prior to the receipt of sufficient funds from the assessment
for such purpose.

58932. The amount of any deposit which is required by the director
pursuant to Section 58931 shall be based upon the estimated number of
units to be marketed or handled by the person that is assessed, or
upon any other uniform basis which the director determines is
reasonable and equitable. Such basis shall be applicable during the
marketing season during which such marketing order is effective.

58933. At any time after the funds which are credited to the
administrative account, or the advertising or sales promotion
account, of the marketing order are sufficient to so warrant, or at
the close of the marketing season, the sums deposited by any person
shall be adjusted to the amount which is properly chargeable against
such person pursuant to the assessment which was authorized.

58934. In lieu of requiring advance deposits, or in order generally
to provide funds for defraying administrative or advertising and
sales promotion expenses until such time as sufficient moneys are
collected for such purpose from the payment of the assessments which
are established pursuant to this article, the director may receive
and disburse for such expense purposes contributions which are made
by producers, processors, distributors, or other handlers. Neither
the advisory board nor the director is responsible for the repayment
of such contributions. If, however, collections from the payment of
established assessments credited to the respective marketing order
accounts are sufficient to so warrant, the board shall recommend and
the director shall authorize, the repayment of contributions, or
authorize the application of such contributions to the assessment
obligations of persons that made such contributions.

58934.5. In order to provide funds for defraying expenditures
authorized by the marketing order, the director or any advisory board
may also receive and disburse contributions that are made by persons
other than those directly affected by the marketing order.

58935. For the convenience of making collections of any producer
assessments which are established pursuant to this article, the
director may collect such assessments from the handlers of the
commodity which is being regulated. Any handler that pays any such
assessments for and on behalf of any producer may deduct such
producer assessments from any money which is owed by such handler to
such producer. Any marketing order may require a handler to deduct
producer assessments from any money which is owed by such handler to
such producer. Such producer assessment deductions are hereby
declared to be trust funds held by the handler for the purposes of
the marketing order concerned and shall be remitted timely, with
assessment reports, to the director.

58936. The director may adopt rules and regulations with respect to
the assessment and collection of funds pursuant to this article.

58937. (a) Any money that is collected by the director pursuant to
this chapter shall be deposited in a bank or other depository that is
approved by the Director of Finance, allocated to each marketing
order under which it is collected. Except as provided in Section
58941, these funds shall be disbursed by the director or the advisory
board only for the necessary expenses that are incurred by the
advisory board and that are approved by the director with respect to
each marketing order. Allowable expenses include expenses generated
by the auditing requirement imposed by subdivision (b).
Funds so collected shall be deposited and disbursed in conformity
with appropriate rules and regulations that are prescribed by the
director. The expenditure of these funds is exempt from the
provisions of Section 925.6 of the Government Code.
(b) All such expenditures by the director shall be audited at
least once every two years by one of the following means:
(1) By contract with a certified public accountant.
(2) By contract with a public accountant holding a valid permit
issued by the California Board of Accountancy.
(3) By contract with a public accounting firm.
(4) By agreement with the Department of Finance.
A copy of the audit shall be delivered within 30 days after the
completion of the audit to the Governor, the director, and the
Controller.

58938. The director may, at the close of each fiscal period which
is used by the advisory board for budgetary purposes, refund any
money which remains in such fund that is allocable to any particular
commodity which is affected by a marketing order or, upon
recommendation of the advisory board and with the approval of the
director, all or a portion of such money may be carried over into the
next succeeding fiscal period if the director finds that such money
is required to defray subsequent expenses under the marketing order.
Any refund made pursuant to this section shall be on a pro rata
basis made to persons from whom, or on whose behalf, the assessments
being refunded were collected. Upon termination by the director of
any marketing order, any remaining balances which are not required by
the director to defray the expenses of such marketing order, shall
be returned by the director upon a pro rata basis, to all persons
from whom, or on whose behalf, such assessments were collected unless
the director finds that the amounts so returnable are so small as to
make impractical the computation and remitting of such pro rata
refund to such persons. If the director makes such a finding, he may
use the moneys in such fund to defray the expenses which are incurred
by him in the formulation, issuance, administration, or enforcement
of any subsequent marketing order.

58938.5. (a) Assessments paid on milk pursuant to the requirements
of a market milk marketing order or a manufacturing milk marketing
order established under this chapter shall be refunded to producers
who meet the following criteria:
(1) The producer shipped milk to a processor during the months of
June or July 1986.
(2) The producer was not paid, or received only partial payment,
for the milk shipped.
(3) The producer has agreed to repay the refunded assessments to
the affected programs if, at a subsequent date, the producer is paid
for the milk.
(b) The producer shall receive a full refund of the amount
assessed for milk shipped and for which no payment was received. If
partial payment was received, the producer shall receive a refund of
assessments paid on milk for which payment was not received.
(c) In lieu of payment to the producer, the refund shall be paid
to an entity which markets milk or otherwise acts on behalf of a
producer who would otherwise qualify for the refund under subdivision
(a), if that entity demonstrates to the satisfaction of the director
that it paid the assessments for the producer.
(d) If a producer, or an entity referred to in subdivision (c),
subsequently receives full or partial payment for milk for which
assessments have been refunded, the producer or entity, as the case
may be, shall repay the assessments in an amount proportionate to the
portion of milk for which payment has been received.
(e) Refunds shall not be made pursuant to this section if the
refund would cause a producer to incur an additional assessment
obligation to the National Milk Promotion Program.
(f) The director shall adopt procedures for refunding assessments
in accordance with this section. The procedures shall not be subject
to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2 of the Government Code.

58939. Any money which is deposited pursuant to this article, which
the director determines is available for investment, may be invested
or reinvested by the Treasurer or an advisory board in any of the
securities which are described in Article 1 (commencing with Section
16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the
Government Code, or placed in a depository as provided in Chapter 4
(commencing with Section 16500) of Part 2 of Division 4 of Title 2 of
the Government Code, and handled in the same manner as money in the
State Treasury.
Any increment which is received from the investment or
reinvestment or deposit, if made by the Treasurer, shall be remitted
to the advisory board whose funds were invested, reinvested, or
deposited, and shall be deposited and disbursed as provided in
Sections 58937 and 58938. The Treasurer may deduct from the
remittance an amount equal to the reasonable costs incurred in
carrying out this section or may bill the advisory board for the
costs, and the advisory board shall pay the costs from money which is
collected for it pursuant to this chapter.

58940. Any check or warrant which is drawn against the funds of any
marketing order which remains unclaimed or uncashed for a period of
six months from the date of issuance shall be canceled and the money
retained for disbursement to the original payee or claimant upon
satisfactory identification for a period of one year from the time
the check or warrant is canceled. The money so retained, if not
claimed within the period of one year, shall be credited to the then
currently operating marketing order for the commodity under which the
funds so retained were collected. If there is no marketing order
then in effective operation for the commodity, the funds shall be
credited to the unexpended balance, if any, of the last previous
marketing order for the commodity. If there is no marketing order
then in current operation, or no balance exists from any previous
marketing order to which the funds may be credited, the funds so
retained may be expended by the director for the benefit of any
marketing order established under the provision of this chapter.

58941. Notwithstanding the provisions of Article 3 (commencing with
Section 241), Chapter 2, Division 1 of this code, each marketing
order or agreement shall be charged the amounts which are computed by
the director as required to reasonably provide for services to be
rendered to such marketing orders by the department. Such amounts are
subject to approval by the advisory board which is concerned, shall
be included in each budget which is recommended to and approved by
the director pursuant to Sections 58923 and 58924, and shall be
withdrawn as required by the director and expended only for the
necessary expenses which are incurred by the director in the
administration of this chapter.