Chapter 504 Oregon Laws 2001

AN ACT

SB 943

Relating to commodity assessments; creating new provisions; amending ORS 576.171, 576.325 and 576.555; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. (1) Notwithstanding any defect existing at the time a commodity assessment was assessed or levied, the assessment rates, assessment limits and assessment bases used by commodity commissions organized pursuant to ORS 576.051 to 576.584, 577.210, 577.710, 578.030 or 579.030 in assessing and levying commodity assessments prior to the effective date of this 2001 Act are hereby validated, and the resulting commodity assessments by those commissions are declared to have been imposed using lawfully determined assessment rates, assessment limits and assessment bases.

(2) Subsection (1) of this section does not affect an action at law challenging the use of an assessment rate, assessment limit or assessment basis by a commodity commission if the action was filed with a court of competent jurisdiction prior to May 1, 2001.

SECTION 2. (1) A commodity producer may dispute the amount of a commodity assessment levied against the producer under ORS 576.325 (3)(a) if the total assessment levied against the producer during an assessment period established by commission rule exceeds one and one-half percent of the total dollar value received by the producer for the raw commodity during that assessment period.

(2) A commodity producer who disputes the amount of a commodity assessment as provided under subsection (1) of this section must file any challenge to the assessment with the appropriate commodity commission no later than 60 days after the close of the assessment period. The challenge must be on a form provided by the State Department of Agriculture. A commodity commission shall process a challenge under this section as provided by rules described in subsection (4) of this section.

(3) A commodity producer filing a challenge under this section bears the burden of proving the total dollar value received by the producer during the assessment period. If the producer acts as a handler or processor for all or part of the producer’s commodity production, the producer also bears the burden of proving that the prices paid to the producer are equivalent to prices paid in arm’s-length transactions. A commodity commission shall refund the amount of the assessment that the producer proves is in excess of one and one-half percent of the total dollar value received by the producer for the raw commodity during the assessment period.

(4) The department shall adopt necessary and proper uniform rules for commodity commissions to carry out this section. The department rules shall include, but need not be limited to, procedures for the filing, processing and formal or informal resolution of challenges and for determining commodity prices paid in arm’s-length transactions. A commodity commission shall adopt rules establishing assessment periods and may adopt supplemental rules that do not conflict with the rules of the department.

SECTION 3. ORS 576.171 is amended to read:

576.171. (1) There is created the Oregon Albacore Commission. Except as provided in subsection (3) of this section, the commission shall be considered to have been created in all respects pursuant to ORS 576.051 to 576.584 and is vested with all the duties, functions, powers, rights and liabilities of commissions created pursuant to ORS 576.051 to 576.584. All producers and handlers of albacore are subject to the duties, rights and liabilities provided in ORS 576.051 to 576.584.

(2) The commission shall consist of seven members appointed by the Director of Agriculture. Five members shall be producers of albacore and two members shall be licensed fish processors who are not producers. In making appointments to the commission, the director shall consider recommendations made to the director by producers of albacore, producers’ organizations, fish processors or processors’ organizations.

[(3) Notwithstanding the assessment limit in ORS 576.325 (2), the commission may:]

[(a) Assess, levy and collect an assessment pursuant to ORS 576.325 in an amount not to exceed three percent of the average unit price of albacore received by the producer in the boat after catch, and before packaging or processing, during the three years immediately preceding; and]

(3) Notwithstanding the assessment limit in ORS 576.325 (3):

(a) If the commission assesses on a unit basis, the assessment may not exceed three percent of the industry average unit price. The commission may determine the industry average unit price by considering data and estimates of the United States Department of Agriculture, Oregon State University or other reliable sources.

(b) If the commission assesses on a percentage of dollar value basis, the assessment may not exceed three percent of the dollar value received by a producer for the raw commodity. If the dollar value received by a producer is not otherwise determinable, the commission may establish the dollar value based on the industry average unit price for that year for the raw commodity.

[(b)] (4) In addition to any other assessment under this section, the commission may assess, levy and collect an assessment from all first purchasers of albacore [in an amount not to exceed three percent of the average unit price of albacore received by the producer in the boat after catch, and before packaging or processing, during the three years immediately preceding. The assessment shall be levied and assessed to the first purchaser at the time of sale]. The commission may collect the assessment from the first purchaser at the time of sale. The commission may establish the assessment amount, but the assessment amount may not exceed the limitations on assessments described in subsection (3) of this section.

SECTION 4. ORS 576.325 is amended to read:

576.325. [(1)(a)] (1) As used in this section, “industry average unit price” means the average unit price for the raw commodity within the industry. Unless provided otherwise, “industry average unit price” includes prices that are calculated using a one-year, two-year or three-year average and data from the most recent complete year or years preceding the year of determination.

(2)(a) [The] A commission may assess, levy and collect an assessment, the amount of which the commission shall determine, on all units or animals of the commodity grown or produced in this state, or procured from its rivers or the offshore waters, but not the Columbia River, for handling within this state, and sold in commercial channels; but no such assessment shall apply to any transaction which occurred prior to the date the commission order assessing such assessment was entered.

(b) [The] A commission may assess, levy and collect a differential assessment, the amount of which the commission shall determine, based on the intended use, type or variety of the commodity.

[(2)] (3) The amount of the assessment provided for in subsection [(1)] (2) of this section [shall] is limited as follows:

(a) If a commission assesses on a unit basis, the assessment may not exceed one and one-half percent of the industry average unit price. The commission may determine the industry average unit price by considering data and estimates of the United States Department of Agriculture, Oregon State University or other reliable sources.

(b) If a commission assesses on a percentage of dollar value basis, the assessment may not exceed one and one-half percent of the dollar value received by [the] a producer [on the farm after severance, or in the boat after catch, and before packaging or processing, during the three years immediately preceding, unless a greater assessment, which in no case shall exceed 10 percent, is specifically provided:] for the raw commodity. If the dollar value received by a producer is not otherwise determinable, the commission may establish the dollar value based on the industry average unit price for that year for the raw commodity.

(4) Notwithstanding subsections (3) and (5) of this section, a commission may provide for a specific assessment limit, not to exceed 10 percent of the industry average unit price or 10 percent of the dollar value received by a producer, depending on the assessment basis. A commission must establish a specific assessment limit:

(a) In the petition provided for in ORS 576.055; or

(b) By a referendum held under ORS 576.555 to 576.575.

[(3)] (5) A commission of livestock producers may, [in lieu] instead of the levy and assessment procedures provided in subsections [(1) and (2)] (2) and (3) of this section, provide [that an identical] for an assessment [shall] to be levied and collected against each animal, but [in such case] the assessment [shall] may not exceed one and one-half percent of the industry average price per animal received by livestock producers [during the three years immediately preceding, for the class of animals in Oregon for which the commission was created, such as cattle, sheep or swine,] for that year for the same class of animals unless a greater assessment[, which in no case shall exceed 10 percent,] is specifically provided as authorized by [paragraph (a) or (b) of subsection (2)] subsection (4) of this section. The commission [in ascertaining] may determine the industry average price per animal received by producers [may take into consideration] by considering data and estimates of the United States Department of Agriculture, Oregon State University and other reliable sources. [for the three calendar years immediately preceding the date of the determination.]

[(4)] (6) [The] A commission shall assess and levy an assessment [shall be levied and assessed] under subsections (2) to (5) of this section to the producer at the time of sale. [and shall be deducted by] The first purchaser shall deduct the assessment from the [price] amount paid to the producer and remit the assessment to the commission. Producers that perform the handling or processing function on all or part of their production of a commodity shall remit the assessment directly to the commission.

SECTION 5. ORS 576.555 is amended to read:

576.555. (1) A referendum may be held once annually for any one or more of the following purposes:

(a) Increasing or decreasing the maximum permissible assessment under ORS [576.325, which in no case shall exceed 10 percent.] 576.325 (4).

(b) Limiting or expanding the powers and duties of the commission; but no powers and duties shall be granted to or imposed upon the commission which are not permitted under ORS 576.051 to 576.584.

(c) Changing any matter which was provided for in the petition under ORS 576.055 (2)(a), (b) or (d), or which was provided for by a prior referendum; but such change shall be within the limits permitted under ORS 576.051 to 576.584.

(d) Providing for the election, and the election, of commissioners instead of their appointment by the Director of Agriculture, or providing for the appointment of commissioners by the director instead of their election by referendum.

(2) A referendum on any proposition referred to in subsection (1) of this section may be held at the same time as a referendum provided for in ORS 576.505.

SECTION 6. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor June 21, 2001

Filed in the office of Secretary of State June 22, 2001

Effective date June 21, 2001

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