RS 3514 - Assessments and funds
A. Except as otherwise provided in Subsection F, each marketing order shall provide for the levying and collection of assessments in sufficient amounts to defray the necessary expenses which are incurred by the commissioner in the formulation, issuance, administration, and enforcement of the marketing order. If the marketing order authorizes the carrying out of advertising and sales promotions plans, it shall also provide for the levying and collection of assessments in sufficient amounts to defray the expenses of such activities.
B. 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 affected by such marketing order.
C. The advisory board shall recommend to the commissioner, 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 commissioner finds that each such budget and assessment rate is 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 commissioner, at such times and in such installments as the commissioner may prescribe, an assessment which is based upon the units in which such commodity is marketed, or upon any other uniform basis which the commissioner determines to be reasonable and equitable.
D. The amount of the assessment for necessary expenses shall not, however, exceed the following:
(1) In the case of producers, two and one-half percent of the gross dollar volume of sales of the commodity which is affected by such marketing order.
(2) In the case of processors, distributors, or other handlers, two and one-half 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 regulated by such marketing order.
E. Any assessment rate which is established for assessment to defray the expenses of advertising and sales promotion plans shall not exceed four 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.
F. In lieu of the assessments provided for in Subsection A, if the marketing order contains provisions for advertising or sales promotion, the commissioner may approve and fix an assessment for producers and an assessment for handlers as the case may be, not exceeding six and one-half 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. The method of assessment and collection of such assessment, and the limitations and restrictions applicable there upon shall conform in all respects with the provisions of this Section regarding assessments for advertising and sales promotion, except as to the maximum amount of such assessment.
G. If the commissioner approves and fixes a single assessment, the advisory board shall recommend and the commissioner 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 Subsection D.
H. If any producer or handler that is duly assessed pursuant to the provisions of this Chapter fails to pay to the commissioner the amount so assessed on or before the date which is specified by the commissioner, the commissioner may add to such unpaid assessment an amount not exceeding ten percent of such unpaid assessment to defray the cost of enforcing the collection of such unpaid assessment.
I. The commissioner may require the persons that are assessed to deposit with him in advance the following amounts:
(1) An amount for necessary expenses.
(2) An amount which shall not exceed twenty-five 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.
J. The amount of any deposit which is required by the commissioner pursuant to Subsection I 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 commissioner determines is reasonable and equitable.
K. At any time after the funds which are credited to the administrative 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.
L. Any marketing order may require a handler to deduct producer assessments from any money which is owed by such handler to such producer. Such assessments for and on behalf of any producer may be deducted by a handler 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 commissioner.
M. The commissioner shall prescribe rules and regulations with respect to the assessment and collection of funds pursuant to the provisions of this Section.
N. All assessments, penalties, and other moneys received by the commissioner pursuant to the provisions of this Chapter shall be paid to the commissioner and shall be deposited in the state treasury to the credit of a revolving fund, one created for each marketing order under which it is collected and, except as provided in Subsection O of this Section, which funds shall be withdrawn from the state treasury upon warrant on the commissioner and shall be expended by the commissioner only for the necessary expenses which are incurred by the advisory board and which are approved by the commissioner with respect to each marketing order. No part of any such revolving fund shall revert to the general fund of this state.
O. Upon termination by the commissioner of any marketing order, any remaining balances which are not required by the commissioner to defray the expenses of such marketing order, shall be returned by the commissioner on a pro rata basis, to all persons from whom, or on whose behalf, such assessments were collected unless the commissioner 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 commissioner makes such a finding, he may use the monies in such fund to defray the expenses which are incurred by him in the formulation, issuance, administration, or enforcement of any subsequent marketing order.
P. 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 commissioner for the benefit of any marketing order established under the provision of this Chapter.
Q. Each marketing order or agreement shall be charged the amounts which are computed by the commissioner 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 recommended to and approved by the commissioner, pursuant to Subsections C and D of this Section, and shall be withdrawn as required by the commissioner and expended only for the necessary expenses which are incurred by the commissioner in the administration of this Chapter. Effective three years from implementation of any marketing order, the advisory board shall include in its budget any costs incurred by the department in the promotion and marketing of the products included in such marketing order.
Added by Acts 1978, No. 500, §1; Acts 2009, No. 24, §8J, eff. June 12, 2009; Acts 2010, No. 861, §3.