Chapter 604 Oregon Laws 2003

AN ACT

SB 854

Relating to commodity commissions; creating new provisions; amending ORS 192.501, 291.050, 305.410, 473.045, 526.660, 561.250, 565.450, 576.044, 576.051, 576.215, 576.225, 576.245, 576.275, 576.309, 576.317, 576.320, 576.325, 576.335, 576.351, 576.355, 576.365, 576.370, 576.375, 576.420, 576.440, 576.445, 576.595, 577.210, 577.270, 577.290, 577.310, 577.320, 577.330, 577.520, 578.020, 578.030, 578.040, 578.080, 578.090, 578.160, 583.525, 604.015, 604.056 and 604.066; repealing ORS 576.055, 576.065, 576.075, 576.078, 576.085, 576.091, 576.095, 576.105, 576.115, 576.125, 576.135, 576.145, 576.155, 576.165, 576.171, 576.175, 576.205, 576.235, 576.295, 576.305, 576.391, 576.405, 576.415, 576.425, 576.430, 576.435, 576.450, 576.505, 576.525, 576.555, 576.565, 576.570, 576.575, 576.578, 576.580, 576.582, 576.584, 576.585, 577.350, 577.410, 577.420, 577.430, 577.440, 577.450, 577.460, 577.511, 577.535, 577.540, 577.560, 577.565, 577.570, 577.575, 577.580, 577.585, 577.590, 577.600, 577.605, 577.700, 577.705, 577.710, 577.715, 577.720, 577.725, 577.730, 577.735, 577.740, 577.760, 577.765, 577.770, 577.775, 577.780, 577.785, 577.787, 577.790, 577.795, 578.050, 578.140, 578.150, 578.180, 578.210, 578.220, 578.230, 578.240, 578.250, 579.010, 579.020, 579.030, 579.040, 579.060, 579.070, 579.080, 579.090, 579.100, 579.110, 579.120, 579.130, 579.140, 579.150, 579.160, 579.165, 579.170, 579.175, 579.180, 579.185, 579.210, 579.220, 579.230, 579.240, 579.250, 579.270, 579.280 and 579.990; appropriating money; and declaring an emergency.

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

COMMODITY COMMISSIONS

SECTION 1. Sections 2 to 25 of this 2003 Act are added to and made a part of ORS 576.051 to 576.584.

SECTION 2. (1) The Legislative Assembly finds that:

(a) Commodity industries are vital elements of the state economy. Commodity industries:

(A) Are sources of substantial employment for the citizens of this state;

(B) Produce needed tax revenues for the support of state and local government;

(C) Encourage responsible stewardship of valuable land and marine resources; and

(D) Produce substantial quantities of necessary food for the state, nation and world.

(b) Commodity commissions support commodity industries and enhance and preserve the economic interests of the state.

(c) Commodity commissions function in the same manner as a broad range of other programs established by the Legislative Assembly that are funded by the public through fees assessed according to the relationship of the fee payer to a particular program.

(d) Commodity commissions are not established to benefit individual persons engaged in commodity industries, but are intended to improve the overall conditions for the particular commodity for which a commission is established and thereby benefit the overall economy of the state and all the citizens of the state.

(e) Mandated cooperative efforts engaged in by commodity commissions are a proven, effective method to avoid economic waste and maintain stable agricultural markets.

(f) It is in the public interest that:

(A) Support for Oregon’s commodity industries be clearly expressed;

(B) Adequate protection be given to commodities and commodity uses, activities and operations; and

(C) Each commodity be promoted individually and as part of a stabilized comprehensive industry by increasing consumption of commodities in this state and the United States and internationally.

(2) It is the intent of the Legislative Assembly that commodity commissions do the following for the purpose of serving commodity industries and the citizens of this state:

(a) Participate in the formulation and implementation of public policy through expressive activities.

(b) Reflect a continuing commitment by the state to commodity industries that are integral to the economy of this state.

(c) Represent a policy of support for persons engaged in commodity industries and for their critical role in the economy of this state, especially the economy of rural areas.

(d) Provide benefits to entire commodity industries and all the citizens of this state.

(e) Enhance the image of Oregon commodities for the purpose of increasing the overall demand for those commodities. To achieve that purpose, the Legislative Assembly intends that commodity commissions operate primarily to create a more receptive environment for commodities and for the individual efforts of persons engaged in commodity industries and thereby complement individual, targeted and specific activities.

(f) Use mandatory cooperative efforts to complement state, federal and international laws and programs.

(g) Protect the citizens of this state by educating them regarding the quality, care and methods used in the production of Oregon commodities.

(h) Increase knowledge regarding the healthful qualities and dietetic value of Oregon commodities.

(i) Support and engage in research programs and activities that benefit the planting, production, harvesting, handling, processing, marketing and use of Oregon commodities.

SECTION 3. ORS 576.205 is repealed and section 4 of this 2003 Act is enacted in lieu thereof.

SECTION 4. (1) Upon the establishment of a commodity commission, the Director of Agriculture shall appoint five temporary members to the commission. In appointing the temporary members, the director shall give consideration to any recommendations by other commodity commissions, commodity growers and commodity grower associations. A majority of the temporary members must be producers of the commodity that is the subject of the commission and at least one member must be a handler of the commodity.

(2) The temporary members shall adopt rules for the commission in accordance with ORS 183.310 to 183.550, including but not limited to rules establishing the number and geographic representation of the commissioners and rules providing for the removal of commissioners. The terms of the temporary members expire on the date that one or more commissioners are appointed under subsection (3) of this section. A qualified temporary member is eligible for appointment to a term on the commission under subsection (3) of this section.

(3) The director shall appoint the commissioners for a commodity commission in accordance with the rules adopted under subsection (2) of this section. In appointing the commissioners, the director shall give consideration to any recommendations by other commodity commissions, commodity growers and commodity grower associations.

(4) A majority of the commissioners must be producers of the commodity that is the subject of the commission. At least one commissioner must be a handler of the commodity. One commissioner must be a member of the public not associated with the production or handling of the commodity. All commissioners other than handlers and the member of the public must be producers.

(5) The term of a commissioner appointed under subsection (3) of this section is four years unless a shorter term is established by commission rule. A commissioner is eligible for reappointment unless otherwise provided by commission rule. Before the expiration of a commissioner’s term, the director shall appoint a successor to assume office upon expiration of the term. If there is a vacancy on a commission for any cause, the director shall appoint a person to the unexpired term.

(6) The commission shall select one member to serve as chairperson and another member to serve as vice chairperson, with such duties and powers as the commission deems appropriate to those offices.

(7) A temporary member of a commission or a commissioner is entitled to compensation and expenses in the manner and amounts provided in ORS 292.495. Claims for compensation earned and expenses incurred in performing the functions of the commission shall be paid out of funds available to the commission.

SECTION 5. Section 4 of this 2003 Act is amended to read:

Sec. 4. (1) Upon the establishment of a commodity commission, the Director of Agriculture shall appoint five temporary members to the commission. In appointing the temporary members, the director shall give consideration to any recommendations by other commodity commissions, commodity growers and commodity grower associations. A majority of the temporary members must be producers of the commodity that is the subject of the commission and at least one member must be a handler of the commodity.

(4) A majority of the commissioners must be producers of the commodity that is the subject of the commission. At least one commissioner must be a handler of the commodity. [One commissioner must be a member of the public not associated with the production or handling of the commodity.] All commissioners other than handlers [and the member of the public] must be producers.

(6) The commission shall select one member to serve as chairperson and another member to serve as vice chairperson, with such duties and powers as the commission deems appropriate to those offices.

SECTION 6. The amendments to section 4 of this 2003 Act by section 5 of this 2003 Act become operative March 1, 2009.

SECTION 7. ORS 576.305 is repealed and section 8 of this 2003 Act is enacted in lieu thereof.

SECTION 8. A commodity commission may:

(1) Appoint all subordinate officers and employees of the commission, prescribe their duties and fix their compensation.

(2) Levy assessments under ORS 576.325.

(3) Borrow money in amounts that do not exceed estimated revenues from assessments for the year.

(4) Enter into contracts for carrying out the duties of the commission.

(5) Subject to ORS 30.260 to 30.300, sue and be sued in the name of the commission.

(6) Request that the Attorney General prosecute in the name of the State of Oregon suits and actions for the collection of assessments levied by the commission.

(7) Study state and federal legislation with regard to tariffs, duties, reciprocal trade agreements, import quotas and other matters affecting commodity industries and the state. A commission may represent and protect the interests of a commodity industry regarding any legislation, proposed legislation or executive action affecting the commodity industry.

(8) Participate in federal and state hearings or other proceedings concerning regulation of the manufacture, distribution, sale or use of pesticides as defined in ORS 634.006 or other chemicals that are of use or potential use to producers of a commodity. This subsection does not authorize a commodity commission to regulate the use of pesticides.

(9) To the extent consistent with the duties of the commission, participate in and cooperate with local, state, national and international private organizations or governmental agencies that engage in work similar to that of a commodity commission.

(10) Provide mechanisms for maintaining and expanding existing markets and developing new domestic and foreign markets for a commodity, including but not limited to:

(a) Public relations programs;

(b) Media relations programs;

(c) Paid print, electronic and position advertising;

(d) Point of sale promotion and merchandising;

(e) Paid sales promotions and coupon programs; and

(f) Activities that prevent, modify or eliminate trade barriers that obstruct the free flow of a commodity to market.

(11) Conduct and fund research to:

(a) Enhance the commercial value of a commodity and products derived from the commodity;

(b) Discover the benefits to public health, the environment or the economy of consuming or otherwise using a commodity;

(c) Develop better and more efficient production, harvesting, irrigation, processing, transportation, handling, marketing and uses of a commodity;

(d) Control or eradicate hazards to a commodity, including but not limited to hazards from animals, pests and plants;

(e) Develop viable alternatives for the rotation of crops;

(f) Determine new or potential demand for a commodity and develop appropriate market development strategies for capturing that demand; and

(g) Measure the effectiveness of marketing, advertising or promotional programs.

(12) Gather, publicize and disseminate information that shows the importance of the consumption or other use of a commodity to public health, the environment, the economy and the proper nutrition of children and adults.

(13) Further the purposes of this section by funding scholarships for or providing financial assistance to persons or entities interested in a commodity.

(14) Adopt rules in accordance with ORS 183.310 to 183.550 for carrying out the duties, functions and powers of the commission.

SECTION 9. (1) A commodity commission may, by rule, establish exemptions from assessment based on:

(a) Commodity quantities;

(b) Types of commodity sale; and

(c) Types of commodity producer.

(2) When adopting a rule for exemptions under subsection (1) of this section, a commission must consider:

(a) Laws and rules of the United States and other states relating to commodity commissions, boards and marketing orders;

(b) The practices, procedures and customs unique to the production, handling, processing and trading of a particular commodity and to the producers and growers of that commodity; and

(c) The cost of collecting the particular assessment and practical problems relating to collection.

(3) A producer or handler that is exempted from assessment, but required to submit reports to a commission, is subject to ORS 576.351.

SECTION 10. ORS 576.391 is repealed and section 11 of this 2003 Act is enacted in lieu thereof.

SECTION 11. A commission may cancel an uncollectible assessment consistent with ORS 293.240. Subsequent collection of debt written off under ORS 293.240 is governed by ORS 293.245.

SECTION 12. (1) Unless the Legislative Assembly orders a refund pursuant to subsection (2) of this section, if the Legislative Assembly abolishes a commodity commission, any moneys remaining in the possession of the abolished commission on the effective date of the abolishment are transferred to Oregon State University and are continuously appropriated to the university for research benefitting producers of the commodity that was subject to assessment by the abolished commission.

(2) The Legislative Assembly may order in an Act dissolving a commodity commission that any moneys remaining in the possession of the abolished commission on the effective date of the abolishment be refunded on a proportional basis to the persons who paid assessments to the commodity commission during the assessment year in which the commodity commission was abolished.

SECTION 13. ORS 576.415 is repealed and section 14 of this 2003 Act is enacted in lieu thereof.

SECTION 14. (1) A commission shall adopt a budget on an annual basis using classifications of expenditures and revenues required by ORS 291.206. The budget is not subject to review by the Legislative Assembly or to future modification by the Emergency Board or the Legislative Assembly.

(2) A commission shall follow generally accepted accounting principles and keep financial and statistical information as necessary to completely and accurately disclose the financial operations of the commission as may be required by the Secretary of State. In addition, the budget must show the estimated receipts and expenditures by or under the authority of the commission under ORS 576.051 to 576.584 for the fiscal year for which the budget is adopted. The budget also must show the actual receipts and expenditures by or under the authority of the commission for the fiscal year preceding the fiscal year in which the proposed budget is prepared, if any, and the estimated receipts and expenditures by or under the authority of the commission for the fiscal year in which the budget is prepared, if any.

(3) Estimated receipts and expenditures for the fiscal year for which the budget is adopted must be fully itemized and be prepared and arranged to clearly show each item of receipts and expenditures. To the extent practicable, the items of receipts and expenditures must be arranged under major groups or categories that are the same as the most recent classifications of revenue and expenditures established pursuant to ORS 291.206.

(4) The budget shall contain only one estimate for emergency or other expenditures that are unforeseen at the time the budget is prepared.

(5) A commission shall call and hold at least one public meeting upon the proposed budget. In selecting a time and place for a meeting, a commission shall be guided by consideration for the convenience of the majority of the producers of the commodity. At a meeting, any person has a right to be heard with respect to the proposed budget.

(6) At least 14 days prior to the date of a meeting under subsection (5) of this section, a commission shall publish notice at least once in a newspaper of general circulation in this state. The notice must set forth the purpose, time and place of the meeting and state that a copy of the proposed budget is available for public inspection at the place of business of the commission or at another convenient location.

(7) After a budget has been adopted, a commission shall submit to the Director of Agriculture a copy of the budget and an affidavit setting forth the pertinent facts relating to the preparation and adoption of the budget. The director shall examine the budget and the affidavit within 15 days and, if the director determines that the estimated receipts and expenditures in the budget are in conformity with the authority of the commission and other applicable statutory requirements and that the facts set forth in the affidavit indicate that the budget was prepared and adopted in accordance with the law, the director shall certify those determinations on the copy of the budget and make the budget final. If the director determines that the budget fails to meet the requirements in any respect, the director shall immediately notify the commission of the particular failures. The commission shall promptly take all practicable measures to remedy the failures and shall resubmit a copy of the budget to the director for examination. The director shall retain the certified copy of the final budget and make the budget available for public inspection during normal business hours of the State Department of Agriculture.

(8) A commission shall prepare an annual financial statement of commission revenues and expenses and shall make the statement available for public review. A commission shall provide a copy of the statement to the Secretary of State and the department no later than 90 days after the end of the state fiscal year.

SECTION 15. The following commodity commissions are established as state commissions:

(1) The Oregon Dairy Products Commission.

(2) The Oregon Filbert Commission.

(3) The Oregon Dungeness Crab Commission.

(4) The Oregon Salmon Commission.

(5) The Oregon Albacore Commission.

(6) The Oregon Grains Commission.

(7) The Oregon Sheep Commission.

(8) The Oregon Potato Commission.

(9) The Oregon Alfalfa Seed Commission.

(10) The Oregon Bartlett Pear Commission.

(11) The Oregon Blueberry Commission.

(12) The Oregon Clover Seed Commission.

(13) The Oregon Fine Fescue Commission.

(14) The Oregon Fryer Commission.

(15) The Oregon Highland Bentgrass Commission.

(16) The Oregon Hop Commission.

(17) The Oregon Mint Commission.

(18) The Oregon Orchardgrass Seed Producers Commission.

(19) The Oregon Processed Vegetable Commission.

(20) The Oregon Raspberry and Blackberry Commission.

(21) The Oregon Ryegrass Growers Seed Commission.

(22) The Oregon Strawberry Commission.

(23) The Oregon Sweet Cherry Commission.

(24) The Oregon Tall Fescue Commission.

(25) The Oregon Trawl Commission.

(26) The Western Oregon Onion Commission.

SECTION 16. (1) Any commodity commission formed by petition under ORS 576.051 to 576.584 prior to the effective date of this 2003 Act, but not listed in section 15 of this 2003 Act, is dissolved.

(2) Notwithstanding subsection (1) of this section, the Oregon Beef Council created under ORS 577.210 is not dissolved.

(3) Notwithstanding subsection (1) of this section, the Oregon Wheat Commission created under ORS 578.030 is not dissolved.

SECTION 17. The Legislative Assembly validates and ratifies all actions by commodity commissions listed in section 15 (1) to (8) of this 2003 Act, and by the members, officers and employees thereof, taken pursuant to statutory authority after the establishment of those respective commodity commissions by statute and prior to the effective date of this 2003 Act. The Legislative Assembly validates and ratifies all actions by commodity commissions listed in section 15 (9) to (26) of this 2003 Act or predecessor commissions, and by the members, officers and employees thereof, taken pursuant to statutory authority after the respective dates of the State Department of Agriculture declarations creating those commodity commissions or predecessor commissions and prior to the effective date of this 2003 Act.

SECTION 18. Sections 2, 4, 8, 9, 11, 12, 14 to 17, 19, 22, 25, 51, 53 to 59, 70, 72, 74, 76, 77, 81, 82, 85, 86 and 91 of this 2003 Act, the amendments to Oregon Revised Statutes by sections 28, 29, 31 to 49, 60, 61, 63 to 68, 87 to 89, 92, 93 and 95 to 108 of this 2003 Act and the repeal of Oregon Revised Statutes by sections 3, 7, 10, 13, 50, 71, 73, 75, 80 and 109 of this 2003 Act do not affect:

(1) Any liability, duty or obligation accruing prior to the effective date of this 2003 Act under or with respect to the duties, functions and powers of a commodity commission listed in section 15 of this 2003 Act. A commodity commission may undertake the collection or enforcement of any such liability, duty or obligation.

(2) The rights and obligations of commodity commissions listed in section 15 of this 2003 Act legally incurred under contracts, leases and business transactions executed, entered into or begun before the effective date of this 2003 Act.

(3) Any action, proceeding or prosecution involving or with respect to a commodity commission listed in section 15 of this 2003 Act.

(4) Any action by or on behalf of a commodity commission listed in section 15 of this 2003 Act taken prior to the effective date of this 2003 Act pursuant to the statutory authority of the commission as existing at the time of that action.

SECTION 19. (1) The rules of a commodity commission listed in section 15 of this 2003 Act that are in effect immediately prior to the effective date of this 2003 Act continue in effect until superseded or repealed by rules of the commission or the State Department of Agriculture.

(2) A commission listed in section 15 of this 2003 Act shall retain control over all supplies, materials, equipment, records, books, papers, moneys and other assets or facilities controlled by the commission immediately prior to the effective date of this 2003 Act.

(3) All moneys collected or received by a commission listed in section 15 of this 2003 Act, placed to the credit of the commission and remaining unexpended and unobligated on the effective date of this 2003 Act must be deposited by the commission in the manner described in ORS 576.375.

SECTION 20. Notwithstanding section 4 of this 2003 Act:

(1) And notwithstanding the length of the term of office to which a person was elected or appointed prior to the effective date of this 2003 Act, on the effective date of this 2003 Act the terms of the persons serving on the commodity commissions listed in section 15 of this 2003 Act immediately prior to the effective date of this 2003 Act shall expire. On the effective date of this 2003 Act, the Director of Agriculture shall appoint each person whose term expires under this subsection to a new term. The length of the new term for which each person is appointed under this subsection shall be equal to the unserved portion of the person’s term that ended pursuant to this subsection. For purposes of any rule limiting the number of terms served on a commission, a term that ends pursuant to this subsection and a new term to which a person is appointed under this subsection are considered a single term.

(2) The commissioners of a commodity commission listed in section 15 of this 2003 Act shall provide by rule for the number and geographic representation of the commissioners and for the removal of commissioners. Any rules described under this subsection must result in a commission membership that meets the requirements described in section 4 (4) and (5) of this 2003 Act. The commissioners shall complete the adoption of the rules on or before 180 days after the effective date of this 2003 Act.

SECTION 21. Section 20 of this 2003 Act is repealed June 30, 2004.

SECTION 22. (1) In addition to any refund permitted under ORS 576.325, the Oregon Alfalfa Seed Commission and the Oregon Grains Commission may adopt rules that provide for the commission adopting the rule to refund all or part of a commodity assessment levied by the commission upon request of the person paying the assessment. A rule adopted under this subsection may not provide for a commission to refund an amount less than the portion of the assessment used by the commission for advertising and product promotion.

(2) If a commission adopts rules pursuant to subsection (1) of this section:

(a) Plans and projects recommended by that commission are exempt from State Department of Agriculture review and approval or disapproval under ORS 576.044 (2); and

(b) Notwithstanding section 4 of this 2003 Act, the commission may vote to eliminate the position for a commissioner who is a member of the public.

SECTION 23. Section 22 of this 2003 Act is amended to read:

Sec. 22. [(1)] In addition to any refund permitted under ORS 576.325, the Oregon Alfalfa Seed Commission and the Oregon Grains Commission may adopt rules that provide for the commission adopting the rule to refund all or part of a commodity assessment levied by the commission upon request of the person paying the assessment. A rule adopted under this subsection may not provide for a commission to refund an amount less than the portion of the assessment used by the commission for advertising and product promotion.

[(2) If a commission adopts rules pursuant to subsection (1) of this section:]

[(a) Plans and projects recommended by that commission are exempt from State Department of Agriculture review and approval or disapproval under ORS 576.044 (2); and]

[(b) Notwithstanding section 4 of this 2003 Act, the commission may vote to eliminate the position for a commissioner who is a member of the public.]

SECTION 24. The amendments to section 22 of this 2003 Act by section 23 of this 2003 Act become operative March 1, 2009.

SECTION 25. (1) Each commodity commission shall conduct a survey of producers of commodities regulated by that commission. The survey must be designed to solicit information regarding the effectiveness of programs administered and enforced by the commission. The commission shall use the survey information to determine the desirability of recommending legislation to:

(a) Permit refunds of all or part of an assessment upon request; and

(b) Remove plans and projects recommended by the commission from State Department of Agriculture review and approval or disapproval under ORS 576.044 (2).

(2) A survey conducted pursuant to subsection (1) of this section must solicit producer input regarding the desirability of establishing a mechanism for producers to receive refunds of all or part of an assessment upon request.

(3) This section does not apply to the Oregon Alfalfa Seed Commission or the Oregon Grains Commission.

(4) Each commodity commission shall complete the survey required by this section on or before January 1, 2005.

(5) Each commodity commission shall make the results of the survey conducted by the commission available to the producers who paid an assessment to the commission during the fiscal year in which the survey is completed.

SECTION 26. Section 25 of this 2003 Act is repealed January 2, 2006.

SECTION 27. ORS 576.044 is added to and made a part of ORS 576.051 to 576.584.

SECTION 28. ORS 576.044 is amended to read:

576.044. (1) [Notwithstanding any other provision of this chapter and ORS 577.110 to 577.605 and ORS chapters 578 and 579, in order to facilitate the performance of commodity commissions in attaining their intended purposes, the Agricultural Development Division of the State Department of Agriculture has the following duties, functions and powers:] The State Department of Agriculture shall:

[(1)] (a) [To] Monitor the practices or methods used or proposed for use by any commodity commission in carrying out [its] the goals and needs [as] disclosed by [its] the budget of the commission;

[(2)] (b) [To] Promote cooperation [between] among the several commissions, the Oregon Beef Council and the Oregon Wheat Commission and [to] assist in the interchange of information and experience [between the commissions] among those entities;

[(3)] (c) [To] Carry out the assigned organizational procedures under [this chapter and ORS chapters 577, 578 and 579 relating to the creation, modification or dissolution of any commission,] ORS 576.051 to 576.584, including the [election or] appointment and removal of members of the commission;

[(4) To examine and comment on any final budget or order submitted to the Director of Agriculture pursuant to any provision of this chapter and ORS chapters 577, 578 or 579; and]

(d) Review budgets submitted to the Director of Agriculture by a commodity commission under section 14 of this 2003 Act; and

[(5)] (e) [To promulgate] Adopt rules to carry out the provisions of [this chapter, ORS 577.110 to 577.605 and ORS chapters 578 and 579] ORS 576.051 to 576.584.

(2) The department shall review, and may approve or disapprove, plans and projects recommended by a commodity commission for commodity promotion, advertising and research and for the dissemination of consumer and commodity industry information. In reviewing plans and projects recommended by a commodity commission, the department shall consider whether the plan or project information is:

(a) Factual;

(b) Not disparaging to other commodities; and

(c) Consistent with the purposes of ORS 576.051 to 576.584.

SECTION 29. ORS 576.044, as amended by section 28 of this 2003 Act, is amended to read:

576.044. [(1)] The State Department of Agriculture shall:

[(a)] (1) Monitor the practices or methods used or proposed for use by any commodity commission in carrying out the goals and needs disclosed by the budget of the commission;

[(b)] (2) Promote cooperation among the several commissions, the Oregon Beef Council and the Oregon Wheat Commission and assist in the interchange of information and experience among those entities;

[(c)] (3) Carry out the assigned organizational procedures under ORS 576.051 to 576.584, including the appointment and removal of members of the commission;

[(d)] (4) Review budgets submitted to the Director of Agriculture by a commodity commission under section 14 of this 2003 Act; and

[(e)] (5) Adopt rules to carry out the provisions of ORS 576.051 to 576.584.

[(2) The department shall review, and may approve or disapprove, plans and projects recommended by a commodity commission for commodity promotion, advertising and research and for the dissemination of consumer and commodity industry information. In reviewing plans and projects recommended by a commodity commission, the department shall consider whether the plan or project information is:]

[(a) Factual;]

[(b) Not disparaging to other commodities; and]

[(c) Consistent with the purposes of ORS 576.051 to 576.584.]

SECTION 30. The amendments to ORS 576.044 by section 29 of this 2003 Act become operative March 1, 2009.

SECTION 31. ORS 576.051 is amended to read:

576.051. As used in ORS 576.051 to 576.584, unless the context requires otherwise:

(1) “Commercial channels” means the sale of the commodity for which a commission is established for use as food, industrial, agricultural or chemurgic use, when sold to any commercial buyer or to any person who resells the commodity or any product derived therefrom.

(2) “Commission” means a commodity commission established under ORS 576.051 to 576.584.

(3) “Commodity” means any distinctive type of agricultural, horticultural [(including floricultural)], viticultural, vegetable, animal or seafood product, or any class, variety or utilization thereof, in [its] a natural or processed state, including bees and honey but not including timber or timber products. The Director of Agriculture may determine what types or subtypes of commodity may be classed together as a commodity for the purposes of ORS 576.051 to 576.584.

(4) “Department” means the State Department of Agriculture.

(5) “Director” means the Director of Agriculture.

(6) “First purchaser” means any person who buys the commodity for which a commission is [created] established from the producer in the first instance, or handler who received the commodity in the first instance from the producer for resale or processing.

(7) “Handler” means any producer, processor, distributor or other person engaged in the handling or marketing of or dealing in the commodity for which a commission is [created] established, whether as an owner, agent, employee, broker or otherwise.

[(8) “Producer” means a person producing within this state or procuring within the state, its rivers or the offshore waters, but not the Columbia River, for commercial handling within the state, a commodity for market, or receiving a share thereof as landowner, landlord, tenant, sharecropper, boat skipper or otherwise.]

(8) “Producer” means a person that engages in, or has engaged in, the business of growing, producing or procuring within this state, or in the rivers or offshore waters of this state except the Columbia River, a commodity for market or for delivery or transfer to others owning or holding title to the commodity. ”Producer” includes a landowner, landlord, tenant, sharecropper, boat skipper or other person that participates in the growing, producing or procuring of a commodity and receives a share of the commodity.

(9) “Regional commission” means a commission that functions only within a specified area of this state consisting of one or more entire counties.

SECTION 32. ORS 576.215 is amended to read:

576.215. The Director of Agriculture and the Dean of the College of Agricultural Sciences of Oregon State University, or their respective official representative, shall be ex officio members of [the] a commission, without right to vote. [In the case of a seafoods] When a commission is established for a seafood commodity, the chairperson of the State Fish and Wildlife Commission or the official representative of the chairperson shall also be an ex officio member of the commission, without right to vote. [ORS 576.205] Section 4 of this 2003 Act and 576.225 to 576.255 do not apply to ex officio members.

SECTION 33. ORS 576.225 is amended to read:

576.225. (1) [Each] A member of [the] a commission [shall] must, [have the following qualifications which shall continue] during the term of office of the member:

(a) [Each shall] Be a citizen of the United States.

(b) [Each shall] Be a bona fide resident of the state.

(c) [Each shall] Have [demonstrated through membership in a producers’ organization, the public service or otherwise,] an active interest in the positive development and economic growth of the commodity industry in Oregon.

[(2) The producer members shall be and have been actively engaged in producing, and the handler members in the handling of, the commodity for which the commission is established, in this state, for a period of at least five years, and shall derive a substantial proportion of their incomes from the sale of the commodity.]

(2) A producer member of a commission must have paid an assessment adopted by the commission, if any, on the commodity in each of the preceding three calendar years. A handler member of a commission must have collected an assessment adopted by the commission, if any, on the commodity in each of the preceding three calendar years.

SECTION 34. ORS 576.245 is amended to read:

576.245. The Director of Agriculture shall immediately declare the office of any appointed producer or handler member of the commission vacant whenever the director finds that such member has ceased to be an active producer or handler in this state, has become a resident of another state or is unable to perform the duties of office.

SECTION 35. ORS 576.275 is amended to read:

576.275. [The] A commission [shall] may establish a meeting place anywhere within this state [it] the commission selects, but the selection of the location [shall] must be guided by consideration for the convenience of the majority of those persons most likely to have business with the commission or be affected by [its] the acts of the commission. This section does not prohibit a commission from participating in meetings outside this state for purposes of advancing the work of the commission.

SECTION 36. ORS 576.309 is amended to read:

576.309. [The] A commission may elect to furnish services, facilities and materials to other commodity commissions, [created under ORS 576.051 to 576.584 or ORS chapter 578 or 579 and to] the Oregon Wheat Commission, the Oregon Beef Council or other state agencies and officers under ORS 283.110 to carry out the purposes of ORS 576.051 to 576.584. Upon requisition by the commission, any other commodity commission, the Oregon Wheat Commission, the Oregon Beef Council [created under ORS 576.051 to 576.584 or ORS chapter 578 or 579] or any other state agency or officer may furnish services, facilities and materials to the commission under ORS 283.110.

SECTION 37. ORS 576.317 is amended to read:

576.317. (1) As used in this section, “intellectual property” means patents, copyrights, trademarks, inventions, discoveries, processes, ideas and other similar property, whether or not they are patentable or copyrightable.

(2) A commodity commission [created] established under ORS 576.051 to 576.584 [or ORS chapter 577, 578 or 579] may, consistent with the purposes of the commission, develop intellectual property that relates to a commodity or assists in the implementation, maintenance or development of commission programs. A commodity commission may take all necessary and proper actions relating to the development of an intellectual property, including but not limited to entering into contracts and other agreements and owning, managing, disposing of or using the intellectual property. A commodity commission developing intellectual property shall adopt rules to govern the ownership, management, disposal and use of intellectual property and other activities of the commission relating to intellectual property.

(3) Moneys received by a commodity commission as a result of the commission’s ownership, management, disposal or use of intellectual property, or other activities of the commission relating to intellectual property, [shall] must be deposited to an account established and maintained by the commission pursuant to ORS 576.375. Moneys deposited under this section are continuously appropriated to the commodity commission possessing the account for the purpose of carrying out the duties, functions and powers of the commission.

SECTION 38. ORS 576.320 is amended to read:

576.320. (1) [Notwithstanding any other provision of law,] Wages or salaries of employees of a commodity commission [created under this chapter or ORS chapter 577, 578 or 579] established under ORS 576.051 to 576.584 are not subject to personnel compensation plans for state employees established by the Oregon Department of Administrative Services under ORS 240.235 to 240.250.

(2) [Notwithstanding any other provision of law,] A commodity commission [created under this chapter or ORS chapter 577, 578 or 579] established under ORS 576.051 to 576.584 is not required to utilize office space furnished or obtained by the Oregon Department of Administrative Services as provided in ORS chapter 276.

(3) The State Department of Agriculture may charge and collect from each commodity commission [created under this chapter or ORS chapter 577, 578 or 579] established under ORS 576.051 to 576.584 an assessment or fee to reimburse the department for supervisory or administrative functions the department is required by law to perform with regard to commodity commissions. The department shall establish the amount of the assessment or fee [shall be established] by rule.

SECTION 39. ORS 576.325 is amended to read:

576.325. (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) 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] this state’s 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]. A commission may not apply an assessment to a transaction that occurred prior to the effective date of the commission rule adopting the assessment.

(b) 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.

(c) All casual sales of the commodity made by the producer direct to the consumer [shall be] are exempt from the assessment.

(d) A commission may, by rule, define and regulate handling, processing and casual sales.

(3) The amount of the assessment provided for in subsection (2) of this section 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 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.

[(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.]

[(5) A commission of livestock producers may, instead of the levy and assessment procedures provided in subsections (2) and (3) of this section, provide for an assessment to be levied and collected against each animal, but the assessment may not exceed one and one-half percent of the industry average price per animal received by livestock producers for that year for the same class of animals unless a greater assessment is specifically provided as authorized by subsection (4) of this section. The commission may determine the industry average price per animal received by producers by considering data and estimates of the United States Department of Agriculture, Oregon State University and other reliable sources.]

(4) Notwithstanding subsection (3) of this section:

(a) The maximum assessment by the Oregon Clover Seed Commission may not exceed one and one-half percent of the industry average unit price for products within the same market category, if assessed on a unit basis.

(b) The maximum assessments by the Oregon Albacore Commission, the Oregon Orchardgrass Seed Producers Commission and the Oregon Tall Fescue Commission may not exceed three percent of the industry average unit price if assessed on a unit basis or three percent of the value received by a producer for the raw commodity if assessed on a percentage of dollar value basis.

(c) The maximum assessment by the Oregon Sweet Cherry Commission for fresh, brined, canned and frozen cherries may not exceed four percent of the respective industry average unit prices for fresh, brined, canned and frozen cherries if assessed on a unit basis.

(d) The maximum assessment by the Oregon Bartlett Pear Commission may not exceed seven percent of the industry average unit price if assessed on a unit basis.

(e) The maximum assessment by the Oregon Processed Vegetable Commission on a commodity may not exceed 0.5 percent of the industry average unit price for that commodity if assessed on a unit basis or 0.5 percent of the dollar value received by a producer for the commodity if assessed on a percentage of dollar value basis.

(f) The maximum assessment by the Oregon Hop Commission may not exceed two percent of the industry average unit price if assessed on a unit basis.

(g) The maximum assessment by the Oregon Sheep Commission may not exceed five cents per pound on all wool, in the grease basis, sold through commercial channels. The commission may not adopt an assessment that is more than one-half cent per pound of wool, in the grease basis, above the assessment for the previous year.

[(6)] (5) A commission shall assess and levy an assessment under subsections (2) to [(5)] (4) of this section to the producer at the time [of sale] and in the manner provided by the commission by rule. [The first purchaser shall deduct the assessment from the 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.] The commission is the owner of a collected assessment. A person who collects an assessment holds the assessment in trust for the benefit of the commission and the state and shall remit the assessment in the time and manner required by the commission under ORS 576.335.

(6) Notwithstanding subsection (5) of this section, a commission may assess, levy and collect an assessment from a first purchaser at the time and in the manner provided by the commission by rule. Except as provided in subsection (8) of this section, the assessment may not exceed the limits described in subsections (3) and (4) of this section.

(7) A regional commission may assess, levy and collect an assessment only on the commodity produced in the counties in which the regional commission functions.

(8) Notwithstanding subsections (3) and (4) of this section, a commodity commission may assess, levy and collect an assessment in excess of the limits described in subsections (3) and (4) of this section pursuant to a federal marketing order or agreement.

(9) A person who believes that the amount of an assessment is incorrect may apply to the commission for a refund not later than 60 days after the person pays the assessment.

SECTION 40. ORS 576.335 is amended to read:

576.335. [(1) The first purchaser shall make reports to the commission on forms prescribed by the commission.]

[(2) No first purchaser shall fail to make the report, or make the report falsely.]

[(3) The commission shall fix dates upon which reports shall be made thereto by all first purchasers. Upon such dates all assessment moneys collected by the purchaser shall be turned over to the commission which shall issue receipts therefor and make suitable records thereof.]

(1) A person responsible for collecting an assessment for a commission shall make a report to the commission at the time and in the manner required by the commission.

[(4)] (2) [Any first purchaser who] A person responsible for collecting an assessment for a commission who fails to deduct an assessment at the time of sale shall report and pay the assessment to the commission. [the assessment which was due thereon. The provisions of ORS 576.355 also apply to] A producer required to report and pay [assessments] an assessment is subject to this section.

SECTION 41. ORS 576.351 is amended to read:

576.351. (1) Each person required to pay or collect an assessment on a commodity under ORS 576.051 to 576.584 shall keep accurate records sufficient to enable [the] a commission to determine by inspection and audit the accuracy of assessments paid or due to the commission and of reports made or due to the commission.

[(2) The commission or any person authorized by the commission may inspect and audit the records referred to in subsection (1) of this section for the purpose referred to in subsection (1) of this section. The commission or any person authorized by the commission may also inspect and audit the records of a producer who sells a commodity to a first purchaser if such inspection and audit are necessary for the purpose referred to in subsection (1) of this section.]

[(3) No person shall refuse to permit an inspection and audit under subsection (2) of this section during business hours.]

(2) For purposes of determining the accuracy of assessments paid or due to a commission, the commission or a person authorized by the commission may:

(a) Make an inspection during normal business hours of the business premises of a person required to pay or collect an assessment; and

(b) Audit the records of a person required to pay or collect an assessment.

(3) For purposes of determining the accuracy of assessments paid or due to a commission, the commission may issue a subpoena for the production of any books, records or documents related to the payment or collection of an assessment to a person required to pay or collect the assessment.

(4) If an audit determines that a person is delinquent in the payment or collection of an assessment, the person shall pay the cost of the audit, not to exceed an amount equal to the delinquent assessment.

SECTION 42. ORS 576.355 is amended to read:

576.355. (1) In addition to the penalties prescribed in ORS 576.991, any [first purchaser or other] person who delays transmittal of funds beyond the time set by [the] a commission shall pay [five] a penalty of 10 percent of the amount due [for the first month of delay and one percent of the amount due for each month of delay thereafter] and shall also pay one and one-half percent interest per month on the unpaid balance of the assessment.

(2) A commission may waive the penalty and interest described in subsection (1) of this section upon a showing of good cause.

(3) Notwithstanding subsection (1) of this section, if an assessment is collected pursuant to a federal marketing order or agreement, a commission may establish a penalty or interest rate that is consistent with that order or agreement.

SECTION 43. ORS 576.365 is amended to read:

576.365. (1) If any [first purchaser, or other] person responsible for the transmittal of [the] assessment moneys to [the] a commission[, willfully refuses to turn over] fails to relinquish assessment moneys collected, the [first purchaser or other] person shall pay [an additional fine] a penalty equal to twice the amount of the unrelinquished assessment moneys [so withheld].

(2) A commission may commence a civil action or utilize any other available legal or equitable remedy to collect an assessment or civil penalty, obtain injunctive relief or obtain specific performance under ORS 576.051 to 576.584.

(3) If the person responsible for the transmittal of assessment moneys is a corporation, all directors and officers of the corporation are personally liable for a failure to relinquish the assessment moneys collected by the corporation.

(4) If a commission obtains a favorable judgment in an action or suit under subsection (2) of this section, the court shall award the commission costs and reasonable attorney fees.

(5) Unless the person required to pay an assessment and the person responsible for collecting the assessment are related businesses, the department may not collect from the person required to pay the assessment any amount deducted by the person responsible for collecting the assessment and due and owing to the department.

SECTION 44. ORS 576.370 is amended to read:

576.370. (1) A commodity producer may dispute the amount of a commodity assessment levied against the producer on a unit basis 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 multiplied by the maximum lawful assessment percentage.

(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 multiplied by the maximum lawful assessment percentage.

(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 45. ORS 576.375 is amended to read:

576.375. (1) All moneys collected or received by any person from the assessment levied under the authority of ORS 576.325 and all other moneys received by [the] a commission [shall] must be paid to the authorized agent of the commission[. As soon as possible after the authorized agent receives such moneys, the authorized agent shall deposit such moneys in one or more separate accounts in the name of the commission. The commission shall designate such accounts and such banks or trust companies.] and promptly deposited into an account established by the commission in a depository bank, as defined in ORS 295.005, that is insured by the Federal Deposit Insurance Corporation. In a manner consistent with the requirements of ORS chapter 295, the chairperson and vice chairperson for a commission shall ensure that sufficient collateral secures any amount of funds on deposit that exceeds the limits of the Federal Deposit Insurance Corporation’s coverage. All moneys in the account are continuously appropriated to the commission making the deposit for the purpose of carrying out the duties, functions and powers of the commission.

(2) [No] Moneys [shall] may not be withdrawn from or paid out of [such accounts] the account except upon order of the commission, and upon checks or other orders upon such accounts signed by the secretary-treasurer or such other member of the commission as the commission designates and countersigned by such other member, officer or employee of the commission as the commission designates. The commission shall keep a receipt, voucher or other written record, showing clearly the nature and items covered by each check or other order[, shall be kept].

[(3) All moneys referred to in subsection (1) of this section shall be used by the commission only for the payment of the expenses of the commission in carrying out the powers conferred on the commission.]

(3) Subject to approval by the Director of Agriculture, a commission may invest moneys collected or received by the commission. Investments made by a commission are:

(a) Limited to investments described in ORS 294.035;

(b) Subject to the investments maturity date limitations described in ORS 294.135; and

(c) Subject to the conduct prohibitions listed in ORS 294.145.

(4) Interest earned from any moneys invested by a commission under subsection (3) of this section is available to the commission in a manner consistent with the commission’s annual budget.

SECTION 46. ORS 576.420 is amended to read:

576.420. [Except as otherwise provided in ORS 576.415 (1) or (2), no expenditures] An expenditure of moneys for a fiscal year may not be made or incurred by or under the authority of [the] a commission under ORS 576.051 to 576.584 unless [ORS 576.425 and 576.430 are complied with] the commission complies with section 14 of this 2003 Act.

SECTION 47. ORS 576.440 is amended to read:

576.440. (1) Except as otherwise provided in subsection (2) of this section, [no expenditures] an expenditure of moneys for a fiscal year may not be made or incurred by or under the authority of [the] a commission under ORS 576.051 to 576.584:

(a) In excess of the total amount of expenditures estimated for the fiscal year in the budget adopted for the fiscal year or[, with respect to any major group or category of estimated expenditures,] in excess of the total amount of expenditures estimated for the major group or category of the expenditure for the fiscal year in the budget adopted for the fiscal year.

(b) [With respect to any major group or category of estimated expenditures,] For any purpose different than that indicated by the major group or category [for the fiscal year] of the expenditure in the budget adopted for the fiscal year.

(2) [No expenditures] An expenditure of moneys for a fiscal year unforeseen at the time the budget is prepared may not be made or incurred by or under the authority of the commission under ORS 576.051 to 576.584 in excess of the amount of unforeseen expenditures estimated as provided in [ORS 576.435 (3)] section 14 of this 2003 Act.

SECTION 48. ORS 576.445 is amended to read:

576.445. (1) Subject to ORS 576.440 (2), expenditures of moneys for a fiscal year unforeseen at the time the budget of a commission is prepared may be made or incurred by [or under the authority] order of the commission. [under ORS 576.051 to 576.584 by an order of the commission. The order shall indicate the amount of the expenditure, the purpose thereof and the facts constituting the unforeseen nature thereof.] The order must indicate the amount and purpose of the expenditure and why the expenditure was unforeseen. At least one copy of the order [shall] must be filed in the office of the commission[,] and [shall be] available for public inspection [under reasonable circumstances] during normal business hours of the commission.

(2) The commission shall send a copy of the order to the Director of Agriculture. The director shall examine the order and the budget to which [it] the order relates. [and,] The director shall certify the order if the director determines that the form of the order is in accordance with law, that the facts set forth in the order and the budget to which [it] the order relates indicate that the order is in accordance with law, and that the proposed unforeseen expenditure is appropriate to accomplish the goals and needs of the commission[, shall certify such determinations on the copy of the order]. The director shall immediately notify the commission if the director [and board determine] determines that the order is defective because of a failure to comply with [ORS 576.425 or] section 14 of this 2003 Act, because the final budget[, its] or the preparation or adoption[,] of the final budget is defective or because estimated expenditures are not in conformity with statutory requirements[, the commission shall immediately be notified]. The commission[, as soon as possible,] shall promptly take [such steps as are possible and necessary] all practicable steps to remedy the defects. The director shall retain the certified copy of the order [shall be retained by the director and shall be] and make the copy available for public inspection [under reasonable circumstances] during normal business hours of the State Department of Agriculture.

SECTION 49. ORS 576.595 is amended to read:

576.595. [Notwithstanding other laws to the contrary,] Any sale of a commodity by a grower or producer is[,] a sale in commercial channels for the purposes of ORS 576.051 to 576.584 and576.991 (2) and (3) [, deemed to be a sale in commercial channels].

OREGON BEEF COUNCIL

SECTION 50. ORS 577.511 is repealed and section 51 of this 2003 Act is enacted in lieu thereof.

SECTION 51. (1) If the United States Secretary of Agriculture orders an assessment pursuant to the Beef Promotion and Research Act of 1985, 7 U.S.C. 2901 to 2918, that applies to sales of cattle in this state, the Oregon Beef Council may act pursuant to any authority granted under that order to provide for collection of the assessment. The council may order the collection of an assessment under this subsection only on cattle sold for payment that are subject to the federal assessment order and for which the assessment has not otherwise been paid. The council may collect the federal assessment on cattle that are exempt from the brand inspection fee under ORS 604.066 (3).

(2) In addition to any assessment collected under subsection (1) of this section or any fee for brand inspection services, the council, by rule, may levy an assessment, not to exceed 50 cents per head, on the same cattle, cattle hides and calves for which the council makes brand inspections and collects brand inspection fees.

(3) The operator of a stockyard, slaughterhouse, packing plant or livestock auction market shall deduct any assessment ordered collected by the council pursuant to subsection (1) or (2) of this section from the proceeds of sale owed to the operator by the owner of an animal. The operator shall pay the assessment to the State Department of Agriculture. When the operator provides a written statement of sale proceeds to the owner of an animal, the operator shall include a statement of the amount deducted from the proceeds for state and federal assessments and for brand inspection services.

(4) The department shall act as agent for the council to collect any assessment ordered collected by the council pursuant to subsection (1) or (2) of this section and any brand inspection fees on cattle or cattle hides adopted by department rule pursuant to ORS 604.066. The department shall collect any assessment that the council orders collected under subsection (1) or (2) of this section in the same time, manner and place that the department collects brand inspection fees on cattle, cattle hides and calves. This subsection does not apply to:

(a) Cattle and calves leaving this state solely for the purpose of pasturing in another state;

(b) Cattle presented at a recognized livestock show or rodeo;

(c) Cattle presented at a livestock auction market but not sold;

(d) Cattle delivered outside this state, provided ownership of the cattle remains unchanged;

(e) Cattle slaughtered for personal consumption; and

(f) Cattle resold within 10 days after purchase.

(5) The department shall transfer or pay to the council, not less frequently than once every two months, the amounts collected by the department on behalf of the council, reduced by:

(a) The collection and administrative costs to the department in carrying out the requirements of this section, as determined by the department; and

(b) Refunds by the department of amounts improperly collected under this section.

(6) A person who believes that an assessment collected from the person under this section is incorrect may apply to the department for a refund not later than 60 days after the department collects the assessment.

(7) To the extent consistent with this section, the council shall assess, levy and collect an assessment under this section using the same process used by a commodity commission under ORS 576.325 for the assessment, levying and collection of an assessment on an agricultural commodity.

SECTION 52. Sections 53 to 58 of this 2003 Act are added to and made a part of ORS 577.110 to 577.605.

SECTION 53. The Oregon Beef Council may cancel an uncollectible assessment consistent with ORS 293.240. Subsequent collection of debt written off under ORS 293.240 is governed by ORS 293.245.

SECTION 54. The Oregon Beef Council shall:

(1) Adopt a budget, obtain budget approval and submit financial statements in the same manner as a commodity commission acting under section 14 of this 2003 Act.

(2) Receive, deposit, invest, expend and budget moneys in the same manner as a commodity commission acting under ORS 576.375, 576.420, 576.440 and 576.445.

SECTION 55. (1) The State Department of Agriculture shall:

(a) Monitor the practices or methods used or proposed for use by the Oregon Beef Council in carrying out the goals and needs disclosed by the budget of the council;

(b) Promote cooperation among the council, commodity commissions and the Oregon Wheat Commission and assist in the interchange of information and experience among those entities;

(c) Carry out the assigned organizational procedures under ORS 577.110 to 577.605, including the appointment and removal of members of the council;

(d) Review budgets submitted to the Director of Agriculture by the council; and

(e) Adopt rules to carry out the provisions of ORS 577.110 to 577.605.

(2) The department shall review, and may approve or disapprove, plans and projects recommended by the council for beef promotion, advertising and research and for the dissemination of consumer and beef industry information. In reviewing plans and projects recommended by the council, the department shall consider whether the plan or project information is:

(a) Factual;

(b) Not disparaging to agricultural commodities; and

(c) Consistent with the purposes of ORS 577.110 to 577.605.

SECTION 56. (1) As used in this section, “intellectual property” means patents, copyrights, trademarks, inventions, discoveries, processes, ideas and other similar property, whether or not they are patentable or copyrightable.

(2) The Oregon Beef Council may, consistent with the purposes of the council, develop intellectual property that relates to beef or assists in the implementation, maintenance or development of council programs. The council may take all necessary and proper actions relating to the development of an intellectual property, including but not limited to entering into contracts and other agreements and owning, managing, disposing of or using the intellectual property. The council may adopt rules to govern the ownership, management, disposal and use of intellectual property and other activities of the council relating to intellectual property.

(3) Moneys received by the council as a result of the ownership, management, disposal or use of intellectual property, or other activities of the council relating to intellectual property, must be deposited to an account established and maintained by the council.

SECTION 57. (1) Wages or salaries of employees of the Oregon Beef Council are not subject to personnel compensation plans for state employees established by the Oregon Department of Administrative Services under ORS 240.235 to 240.250.

(2) The council is not required to utilize office space furnished or obtained by the Oregon Department of Administrative Services as provided in ORS chapter 276.

(3) The State Department of Agriculture may charge and collect from the council an assessment or fee to reimburse the department for supervisory or administrative functions the department is required by law to perform with regard to the council. The State Department of Agriculture shall establish the amount of the assessment or fee by rule.

SECTION 58. (1) Violation of ORS 577.520 is punishable, upon conviction, by a fine of not more than $500, or by imprisonment in the county jail for not more than 90 days, or both.

(2) Justice courts have concurrent jurisdiction with circuit courts in all prosecutions under this section.

SECTION 59. (1) The Oregon Beef Council shall conduct a survey of producers who pay assessments to the council. The survey must be designed to solicit information regarding the effectiveness of programs administered and enforced by the council. The council shall use the survey information to determine the desirability of:

(a) Petitioning the federal government to permit refunds of all or part of an assessment upon request; and

(b) Recommending legislation to remove plans and projects recommended by the council from State Department of Agriculture review and approval or disapproval under section 55 of this 2003 Act.

(2) The council shall complete the survey required by this section on or before January 1, 2005. The council shall make the results of the survey available to the producers who paid an assessment to the council during the fiscal year in which the survey is completed.

SECTION 59a. Section 59 of this 2003 Act is repealed January 2, 2006.

SECTION 60. ORS 577.210 is amended to read:

577.210. (1) As used in this section:

(a) “Beef producers” means persons who raise, breed or grow cattle or calves for beef production.

(b) “Dairy producers” means persons engaged in the production on a dairy farm of fluid milk.

(c) “Handler” means a person actively engaged in the processing, slaughtering, handling or marketing of cattle.

[(1)] (2) There hereby is created the Oregon Beef Council[.]

[(2) The council shall be] composed of:

(a) Two dairy producers. [For the purpose of this paragraph, “dairy producer” means a person engaged in the production on a dairy farm of fluid milk.]

(b) Three beef producers. [For the purpose of this paragraph, “beef producer” means a person who raises, breeds or grows cattle or calves for beef production.]

(d) One handler. [For the purpose of this paragraph, “handler” means a person actively engaged in processing, slaughtering, handling or marketing of cattle.]

(e) One public member not associated with the producing, feeding or handling of cattle and having an active interest in the positive economic development of the beef industry.

(3) The Director of Agriculture shall appoint the voting members of the council. In making such appointments, the director shall take into consideration nominations and recommendations made to the director by organizations who represent or who are engaged in the same type of production or business as the person so nominated or recommended for appointment as a member of the council. Each member shall continue in office until a successor is appointed and qualified.

(4) The director, or a duly authorized representative of the director, and the Dean of the College of Agricultural Sciences of Oregon State University, [or their respective official representative,] or a duly authorized representative of the dean, shall be ex officio members of the council, without the right to vote.

(5) The public member of the council, the director and the dean, or the authorized representative of the director or the dean, are not subject to the requirements of ORS 577.220 (3) and (4) and 577.240 (1).

SECTION 61. ORS 577.210, as amended by section 60 of this 2003 Act, is amended to read:

577.210. (1) As used in this section:

(a) “Beef producers” means persons who raise, breed or grow cattle or calves for beef production.

(b) “Dairy producers” means persons engaged in the production on a dairy farm of fluid milk.

(2) There hereby is created the Oregon Beef Council composed of:

(a) Two dairy producers.

(b) Three beef producers.

(d) One handler.

[(e) One public member not associated with the producing, feeding or handling of cattle and having an active interest in the positive economic development of the beef industry.]

(3) The Director of Agriculture shall appoint the voting members of the council. In making such appointments, the director shall take into consideration nominations and recommendations made to the director by organizations who represent or who are engaged in the same type of production or business as the person so nominated or recommended for appointment as a member of the council. Each member shall continue in office until a successor is appointed and qualified.

(4) The director, or a duly authorized representative of the director, and the Dean of the College of Agricultural Sciences of Oregon State University, or a duly authorized representative of the dean, shall be ex officio members of the council, without the right to vote.

(5) The [public member of the council, the] director and the dean, or the authorized representative of the director or the dean, are not subject to the requirements of ORS 577.220 (3) and (4) and 577.240 (1).

SECTION 62. The amendments to ORS 577.210 by section 61 of this 2003 Act become operative March 1, 2009.

SECTION 63. ORS 577.270 is amended to read:

577.270. (1) The Oregon Beef Council shall establish a meeting place anywhere within this state, but the selection of the location shall be guided by consideration for the convenience of the majority of those most likely to have business with the council or be affected by [its] the acts of the council.

(2) Notwithstanding subsection (1) of this section, the council may participate in meetings outside the state for the purpose of advancing the work of the council.

SECTION 64. ORS 577.290 is amended to read:

577.290. (1) The Oregon Beef Council may:

[(1)] (a) Conduct scientific research to discover and develop the commercial value of beef and products thereof.

[(2)] (b) Disseminate reliable information founded upon the research undertaken under ORS 577.110 to 577.605, showing the value of beef and its products for any purpose for which they may be found useful and profitable.

[(3)] (c) Study legislation, state and federal, with respect to tariffs, duties, reciprocal trade agreements, import quotas and other matters concerning the effect on the beef industry, and represent and protect the interests of the beef industry with respect to any legislation or proposed legislation or executive action which may affect that industry.

[(4) Sue and be sued as a council, without individual liability for acts of the council within the scope of the powers conferred upon it by ORS 577.110 to 577.605.]

[(5) Enter into contracts which it deems appropriate to the carrying out of the purposes of the council as authorized by ORS 577.110 to 577.605.]

[(6) Borrow money, not in excess of its estimate of its revenue from the current year’s contributions, so that the beef responsible for the accumulation of funds may receive the benefits of the efforts for which the funds are used.]

[(7) Make grants to research agencies for financing special or emergency studies or for the purchase or acquisition of facilities necessary to carry out the purposes of the council as authorized by ORS 577.110 to 577.605.]

[(8) Appoint subordinate officers and employees of the council and prescribe their duties and fix their compensation.]

[(9) Cooperate with any local, state or nationwide organization or agencies, whether created by law or voluntary, engaged in work or activities similar to that of the council; and enter into contracts with such organizations or agencies for carrying on joint programs.]

[(10)] (d) Act jointly and in cooperation with the federal government or any agency thereof in the administration of any program of the government or a governmental agency deemed by the council to be beneficial to the beef industry of this state, and expend funds in connection therewith, provided that such program is compatible with the powers conferred by ORS 577.110 to 577.605.

[(11) Adopt, rescind, modify or amend all proper regulations, orders and resolutions for the exercise of its powers and duties. A copy of any of the council’s orders, other than orders referred to in ORS 577.460 and 577.540, shall be filed with the State Department of Agriculture, and a copy mailed to the county extension agent of the counties in which the beef is produced.]

[(12)] (e) Enter into contracts for advertising beef and to develop new markets through such advertising.

[(13) Establish a reasonable per diem allowance, in addition to expenses under ORS 577.260, to members of the council while actually engaged in the performance of their official duties, including necessary travel time.]

[(14)] (f) Develop plans or projects of promotion and advertising, research, consumer information and industry information, and develop programs that will lead to the development of new markets, marketing strategies, increased efficiency and activities to enhance the image of the cattle industry.

(2) In addition to exercising the powers listed in subsection (1) of this section, the council may exercise the same powers that a commodity commission may exercise under section 8 of this 2003 Act.

SECTION 65. ORS 577.310 is amended to read:

577.310. From the contributions it receives, the Oregon Beef Council may pay[, as authorized by ORS 577.290,] 20 percent of such moneys to the National Livestock and Meat Board and 20 percent of such moneys to the National Beef Council to carry out certain work and programs for and as approved by the council on a national basis.

SECTION 66. ORS 577.320 is amended to read:

577.320. (1) Upon request by the Oregon Beef Council, the Oregon Department of Administrative Services may[:] provide the same services that the department may provide to a commodity commission under ORS 576.307.

[(a) Purchase or otherwise provide for the acquisition or furnishing of supplies, materials, equipment and services other than personal required by the council and for the furnishing of professional services rendered by independent contractors with the state to the council under ORS 279.545 to 279.748.]

[(b) Provide for the furnishing of printing and multiple duplication work to the council under ORS 282.010 to 282.050, except that printing and binding which advertises or promotes products, agricultural or manufactured, shall not be considered state printing.]

[(c) Provide for the furnishing of services relating to the disposition of surplus, obsolete or unused supplies, materials and equipment to the council under ORS 279.828.]

[(d) Provide for the furnishing of central telephone service and central mail or messenger services to the council under ORS 283.140.]

[(e) Provide for the furnishing of central repair and maintenance services to the council under ORS 283.150.]

[(f) Provide for the furnishing of clerical and stenographic pool services to the council under ORS 283.160.]

[(g) Provide for the furnishing of motor vehicles for use by members, officers and employees of the council under ORS 283.305 to 283.350.]

(2) The council shall pay to the Oregon Department of Administrative Services such amount for services performed by the department under subsection (1) of this section as the department determines is adequate to reimburse [it] the department for the costs necessary to perform such services.

(3) Upon request by the council, the Oregon Department of Administrative Services may design and supervise the installation of an accounting system for the council. The council shall pay to the Oregon Department of Administrative Services such amount for services performed by that department under this subsection as such department determines is adequate to reimburse it for the costs necessary to perform such services.

SECTION 67. ORS 577.330 is amended to read:

577.330. The Oregon Beef Council may elect to furnish services, facilities and materials to commodity commissions created under ORS 576.051 to 576.584, [or ORS chapter 578 or 579 and to] the Oregon Wheat Commission or other state agencies and officers under ORS 283.110. [Upon requisition by the council, any commodity commission created under ORS 576.051 to 576.584 or ORS chapter 578 or 579 or any state agency or officer may furnish services, facilities and materials to the council under ORS 283.110.]

SECTION 68. ORS 577.520 is amended to read:

577.520. (1) The operators of all stockyards, slaughterhouses, packing plants and livestock auction markets shall deduct from the proceeds of sale owing by them to the respective owners of animals the assessments authorized by [ORS 577.511] section 51 of this 2003 Act.

(2) When an operator sends or gives any written statement to an owner or agent relating to the proceeds owing the owner, the operator shall include a statement of the amount deducted from the proceeds for Oregon Beef Council purposes, the amount deducted from the proceeds for federal assessments, and the amount deducted from the proceeds for brand inspection services.

(3) In accordance with the provisions of law, operators shall promptly pay directly to the State Department of Agriculture all contributions collected by them.

OREGON WHEAT COMMISSION

SECTION 69. Sections 70, 77, 82, 85 and 86 of this 2003 Act are added to and made a part of ORS chapter 578.

SECTION 70. The Legislative Assembly validates and ratifies all actions by the Oregon Wheat Commission, and by the officers and employees thereof, taken pursuant to statutory authority after the creation of the commission by ORS 578.030 and prior to the effective date of this 2003 Act.

SECTION 71. ORS 578.150 is repealed and section 72 of this 2003 Act is enacted in lieu thereof.

SECTION 72. The Oregon Wheat Commission shall:

(1) Adopt a budget, obtain budget approval and submit financial statements in the same manner as a commodity commission acting under section 14 of this 2003 Act.

(2) Receive, deposit, invest, expend and budget moneys in the same manner as a commodity commission acting under ORS 576.375, 576.420, 576.440 and 576.445.

SECTION 73. ORS 578.180 is repealed and section 74 of this 2003 Act is enacted in lieu thereof.

SECTION 74. The Oregon Wheat Commission may cancel an uncollectible assessment consistent with ORS 293.240. Subsequent collection of debt written off under ORS 293.240 is governed by ORS 293.245.

SECTION 75. ORS 578.210 is repealed and section 76 of this 2003 Act is enacted in lieu thereof.

SECTION 76. (1)(a) The Oregon Wheat Commission may assess, levy and collect an assessment, the amount of which the commission shall determine, on all units of wheat grown or produced in this state and sold in commercial channels. The commission may not apply an assessment to any transaction that occurred prior to the date that the commission order assessing the assessment was entered.

(b) The 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 wheat.

(c) All casual sales of wheat made by the producer direct to the consumer are exempt from the assessment.

(d) The commission may, by rule, define and regulate handling, processing and casual sales.

(2) The commission shall assess and levy an assessment under subsection (1) of this section to the producer at the time and in the manner prescribed by the commission by rule. The commission is the owner of a collected assessment. A person who collects an assessment holds the assessment in trust for the benefit of the commission and the state and shall remit the assessment in the time and manner prescribed by the commission by rule. The assessment shall be deducted as provided by this section whether the wheat is stored in this or another state.

(3) A lienholder who possesses wheat under the lien shall deduct the assessment from the proceeds of the claim secured by the lien when the wheat is pledged or mortgaged.

(4) Notwithstanding subsection (2) of this section, the commission may assess and levy an assessment and collect an assessment from a first purchaser at the time and in the manner prescribed by the commission by rule.

(5) A person who believes that the amount of an assessment is incorrect may apply to the commission within 60 days after paying the assessment for a refund of the excess amount paid.

(6) An assessment under this section is a lien on the wheat and has priority over other liens or encumbrances on the wheat except liens created by a statute of this state.

(7) The commission may, by rule, establish exemptions from assessment based on:

(a) Wheat quantities;

(b) Types of wheat sale; and

(c) Types of wheat producer.

SECTION 77. (1) In addition to any refund permitted under section 76 of this 2003 Act, the Oregon Wheat Commission may adopt rules that provide for the commission to refund all or part of an assessment on wheat upon request of the person paying the assessment. A rule adopted under this subsection may not provide for the commission to refund less than the portion of the assessment used by the commission for advertising and product promotion.

(2) If the commission adopts rules pursuant to subsection (1) of this section, plans and projects recommended by the commission are exempt from State Department of Agriculture review and approval or disapproval under section 82 (2) of this 2003 Act.

SECTION 78. Section 77 of this 2003 Act is amended to read:

Sec. 77. [(1)] In addition to any refund permitted under section 76 of this 2003 Act, the Oregon Wheat Commission may adopt rules that provide for the commission to refund all or part of an assessment on wheat upon request of the person paying the assessment. A rule adopted under this subsection may not provide for the commission to refund less than the portion of the assessment used by the commission for advertising and product promotion.

[(2) If the commission adopts rules pursuant to subsection (1) of this section, plans and projects recommended by the commission are exempt from State Department of Agriculture review and approval or disapproval under section 82 (2) of this 2003 Act.]

SECTION 79. The amendments to section 77 of this 2003 Act by section 78 of this 2003 Act become operative March 1, 2009.

SECTION 80. ORS 578.250 is repealed and section 81 of this 2003 Act is enacted in lieu thereof.

SECTION 81. (1) A person required to pay an assessment to the Oregon Wheat Commission shall keep records in the same manner as required by ORS 576.351 for a person required to pay an assessment to a commodity commission.

(2) The commission or a person authorized by the commission may inspect and audit records, issue subpoenas and require payment for the cost of audits in the same manner as a commodity commission or person authorized by a commodity commission under ORS 576.351.

SECTION 82. (1) The State Department of Agriculture shall:

(a) Monitor the practices or methods used or proposed for use by the Oregon Wheat Commission in carrying out the goals and needs disclosed by the budget of the commission;

(b) Promote cooperation among the commission, commodity commissions and the Oregon Beef Council and assist in the interchange of information and experience among those entities;

(c) Carry out the assigned organizational procedures under this chapter, including the appointment and removal of members of the commission;

(d) Review budgets submitted to the Director of Agriculture by the commission; and

(e) Adopt rules to carry out the provisions of this chapter.

(2) Except as provided in section 77 of this 2003 Act, the department shall review, and may approve or disapprove, plans and projects recommended by the commission for wheat promotion, advertising and research and for the dissemination of consumer and wheat industry information. In reviewing plans and projects recommended by the commission, the department shall consider whether the plan or project information is:

(a) Factual;

(b) Not disparaging to commodities; and

(c) Consistent with the purposes of this chapter.

SECTION 83. Section 82 of this 2003 Act is amended to read:

Sec. 82. [(1)] The State Department of Agriculture shall:

[(a)] (1) Monitor the practices or methods used or proposed for use by the Oregon Wheat Commission in carrying out the goals and needs disclosed by the budget of the commission;

[(b)] (2) Promote cooperation among the commission, commodity commissions and the Oregon Beef Council and assist in the interchange of information and experience among those entities;

[(c)] (3) Carry out the assigned organizational procedures under this chapter, including the appointment and removal of members of the commission;

[(d)] (4) Review budgets submitted to the Director of Agriculture by the commission; and

[(e)] (5) Adopt rules to carry out the provisions of this chapter.

[(2) Except as provided in section 77 of this 2003 Act, the department shall review, and may approve or disapprove, plans and projects recommended by the commission for wheat promotion, advertising and research and for the dissemination of consumer and wheat industry information. In reviewing plans and projects recommended by the commission, the department shall consider whether the plan or project information is:]

[(a) Factual;]

[(b) Not disparaging to commodities; and]

[(c) Consistent with the purposes of this chapter.]

SECTION 84. The amendments to section 82 of this 2003 Act by section 83 of this 2003 Act become operative March 1, 2009.

SECTION 85. (1) As used in this section, “intellectual property” means patents, copyrights, trademarks, inventions, discoveries, processes, ideas and other similar property, whether or not they are patentable or copyrightable.

(2) The Oregon Wheat Commission may, consistent with the purposes of the commission, develop intellectual property that relates to wheat or assists in the implementation, maintenance or development of commission programs. The commission may take all necessary and proper actions relating to the development of an intellectual property, including but not limited to entering into contracts and other agreements and owning, managing, disposing of or using the intellectual property. The commission may adopt rules to govern the ownership, management, disposal and use of intellectual property and other activities of the commission relating to intellectual property.

(3) Moneys received by the commission as a result of the ownership, management, disposal or use of intellectual property, or other activities of the commission relating to intellectual property, must be deposited to an account established and maintained by the commission.

SECTION 86. (1) Wages or salaries of employees of the Oregon Wheat Commission are not subject to personnel compensation plans for state employees established by the Oregon Department of Administrative Services under ORS 240.235 to 240.250.

(2) The commission is not required to utilize office space furnished or obtained by the Oregon Department of Administrative Services as provided in ORS chapter 276.

(3) The State Department of Agriculture may charge and collect from the commission an assessment or fee to reimburse the department for supervisory or administrative functions the department is required by law to perform with regard to the commission. The department shall establish the amount of the assessment or fee by rule.

SECTION 87. ORS 578.020 is amended to read:

578.020. (1) The Legislative Assembly finds and declares that:

(a) It is [to] in the interest of all the people that the abundant natural resources of Oregon be protected, fully developed and uniformly distributed.

(b) [Among the agricultural industries of the state that contribute] The growing of wheat is an agricultural industry that contributes to the economic welfare of Oregon [is the growing of wheat].

(c) Because a surplus of wheat is grown in this state and, during recurrent years, that surplus has been in excess of all available markets, it is necessary that additional markets for wheat be found in order to provide profitable enterprises for wheat growers and to provide employment for labor and industry dependent upon wheat[, that additional markets be found].

(2) [It is] The purpose of this chapter[, in the exercise of the police power,] is to promote the public health and welfare by providing means for the protection and stabilization of the wheat industry in this state.

SECTION 88. ORS 578.030 is amended to read:

578.030. (1) There hereby is created the Oregon Wheat Commission consisting of eight members. [The commission shall consist of five members who shall be appointed by the Director of Agriculture and shall hold office for a term of five years.] The Director of Agriculture shall appoint six voting commission members for terms of four years. One member appointed by the director must be a member of the public not associated with the production or handling of wheat and having an active interest in the positive economic development of the wheat industry. In making the other five appointments of voting members of the commission the director shall take into consideration any nominations or recommendations made to the director by growers or growers’ organizations.

(2) The director, or a duly authorized representative of the director, and the Dean of the College of Agricultural Sciences of Oregon State University, or a duly authorized representative of the dean, shall be ex officio members, without vote, of the commission. [Subsection (1) of this section, ORS 578.040, 578.050 and 578.060 (1) do not apply to ex officio members.]

SECTION 89. ORS 578.030, as amended by section 88 of this 2003 Act, is amended to read:

578.030. (1) There hereby is created the Oregon Wheat Commission consisting of [eight] seven members. The Director of Agriculture shall appoint [six] five voting commission members for terms of four years. [One member appointed by the director must be a member of the public not associated with the production or handling of wheat and having an active interest in the positive economic development of the wheat industry.] In making the [other five] appointments of voting members of the commission the director shall take into consideration any nominations or recommendations made to the director by growers or growers’ organizations.

SECTION 90. The amendments to ORS 578.030 by section 89 of this 2003 Act become operative March 1, 2009.

SECTION 91. Notwithstanding any original term of appointment, the term of office for an appointed member of the Oregon Wheat Commission holding office on the effective date of this 2003 Act shall expire on the later of the effective date of this 2003 Act or four years after commencement of the term of office being served by the member on the effective date of this 2003 Act. Notwithstanding ORS 578.030, the Director of Agriculture may reduce the term of office for a person first appointed to the commission after the effective date of this 2003 Act for the purpose of preventing the expiration of more than two terms of office in any one year.

SECTION 92. ORS 578.040 is amended to read:

578.040. (1) The voting members of the Oregon Wheat Commission shall be selected and appointed because of their ability and disposition to serve the state’s interest and their knowledge of the state’s natural resources. Voting members [shall be citizens over 25 years of age, residents of the] other than the member of the public must be citizens residing in this state, who have been actually engaged in growing wheat in this state for at least five years[, and who derive a substantial portion of their income from growing wheat].

(2) Three of the members shall be residents of and have farming operations in that part of the Columbia Basin comprising the following counties: Umatilla, Morrow, Gilliam, Sherman, Wasco and Jefferson. One of the members shall be a resident of and have a farming operation in the territory comprised of the other counties lying east of the summit of the Cascade Mountains. One member shall be a resident of and have a farming operation in the territory lying west of the summit of the Cascade Mountains.

SECTION 93. ORS 578.040, as amended by section 92 of this 2003 Act, is amended to read:

578.040. (1) The voting members of the Oregon Wheat Commission shall be selected and appointed because of their ability and disposition to serve the state’s interest and their knowledge of the state’s natural resources. Voting members [other than the member of the public] must be citizens residing in this state, who have been actually engaged in growing wheat in this state for at least five years.

SECTION 94. The amendments to ORS 578.040 by section 93 of this 2003 Act become operative March 1, 2009.

SECTION 95. ORS 578.080 is amended to read:

578.080. (1) The Oregon Wheat Commission shall meet at least once every three months regularly and at such other times as called by the chairperson. The chairperson [shall] may call special meetings of the commission at any time.

(2) The commission may participate in meetings outside this state for the purpose of advancing the work of the commission.

SECTION 96. ORS 578.090 is amended to read:

578.090. (1) Consistent with the general purposes of this chapter, the Oregon Wheat Commission shall establish the policies to be followed in the accomplishments of such purposes.

(2) In the administration of this chapter the commission [shall have] has the following duties, authorities and powers:

(a) To conduct a campaign of research, education and publicity.

(b) To find new markets for wheat and wheat products.

(c) To give, publicize and promulgate reliable information showing the value of wheat and wheat products for any purpose for which it is found useful and profitable.

(d) To make public and encourage the widespread national and international use of the special kinds of wheat and wheat products produced from the special varieties of wheat grown in Oregon.

(e) To investigate and participate in studies of the problems peculiar to the producers of wheat in Oregon.

(f) To take such action as the commission deems necessary or advisable in order to stabilize and protect the wheat industry of the state and the health and welfare of the public.

[(g) To sue and be sued.]

[(h) To enter into such contracts as may be necessary or advisable.]

[(i) To appoint and employ officers, agents and other personnel, including experts in agriculture and the publicizing of the products thereof, and to prescribe their duties and fix their compensation.]

[(j) To make use of such advertising means and methods as the commission deems advisable and to enter into contracts and agreements for research and advertising within and without the state.]

[(k) To cooperate with any local, state or national organization or agency, whether voluntary or created by the law of any state or by national law, engaged in work or activities similar to the work and activities of the commission, and to enter into contracts and agreements with such organizations or agencies for carrying on a joint campaign of research, education and publicity.]

[(L)] (g) To lease, purchase or own the real or personal property deemed necessary in the administration of this chapter.

[(m) To prosecute in the name of the State of Oregon, any suit or action for the collection of the assessment provided for in ORS 578.210.]

[(n) To adopt, rescind, modify and amend all necessary and proper orders, resolutions and regulations for the procedure and exercise of its powers and the performance of its duties.]

[(o)] (h) To establish a reasonable per diem allowance, in addition to expenses under ORS 578.060, to members of the commission while actually engaged in the performance of their official duties, including necessary travel time.

(3) In addition to exercising the powers listed in subsection (2) of this section, the commission may exercise the same powers that a commodity commission may exercise under section 8 of this 2003 Act.

SECTION 97. ORS 578.160 is amended to read:

578.160. (1) ORS 576.307 [and 576.309 are] is applicable to the Oregon Wheat Commission.

(2) The Oregon Wheat Commission may elect to furnish services, facilities and materials to commodity commissions created under ORS 576.051 to 576.584, the Oregon Beef Council or other state agencies and officers under ORS 283.110.

CONFORMING AMENDMENTS

TO OREGON REVISED STATUTES

SECTION 98. ORS 192.501 is amended to read:

192.501. The following public records are exempt from disclosure under ORS 192.410 to 192.505 unless the public interest requires disclosure in the particular instance:

(1) Records of a public body pertaining to litigation to which the public body is a party if the complaint has been filed, or if the complaint has not been filed, if the public body shows that such litigation is reasonably likely to occur. This exemption does not apply to litigation which has been concluded, and nothing in this subsection shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation;

(2) Trade secrets. “Trade secrets,” as used in this section, may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within an organization and which is used in a business it conducts, having actual or potential commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it;

(3) Investigatory information compiled for criminal law purposes. The record of an arrest or the report of a crime shall be disclosed unless and only for so long as there is a clear need to delay disclosure in the course of a specific investigation, including the need to protect the complaining party or the victim. Nothing in this subsection shall limit any right constitutionally guaranteed, or granted by statute, to disclosure or discovery in criminal cases. For purposes of this subsection, the record of an arrest or the report of a crime includes, but is not limited to:

(a) The arrested person’s name, age, residence, employment, marital status and similar biographical information;

(b) The offense with which the arrested person is charged;

(d) The identity of and biographical information concerning both complaining party and victim;

(e) The identity of the investigating and arresting agency and the length of the investigation;

(f) The circumstances of arrest, including time, place, resistance, pursuit and weapons used; and

(g) Such information as may be necessary to enlist public assistance in apprehending fugitives from justice;

(4) Test questions, scoring keys, and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given and if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating an examination or testing procedure are included in this exemption, to the extent that disclosure would create a risk that the result might be affected;

(5) Information consisting of production records, sale or purchase records or catch records, or similar business records of a private concern or enterprise, required by law to be submitted to or inspected by a governmental body to allow it to determine fees or assessments payable or to establish production quotas, and the amounts of such fees or assessments payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. This exemption does not include records submitted by long term care facilities as defined in ORS 442.015 to the state for purposes of reimbursement of expenses or determining fees for patient care. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding;

(6) Information relating to the appraisal of real estate prior to its acquisition;

(7) The names and signatures of employees who sign authorization cards or petitions for the purpose of requesting representation or decertification elections;

(8) Investigatory information relating to any complaint filed under ORS 659A.820 or 659A.825, until such time as the complaint is resolved under ORS 659A.835, or a final order is issued under ORS 659A.850;

(9) Investigatory information relating to any complaint or charge filed under ORS 243.676 and 663.180;

(10) Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services under ORS 697.732;

(11) Information concerning the location of archaeological sites or objects as those terms are defined in ORS 358.905, except if the governing body of an Indian tribe requests the information and the need for the information is related to that Indian tribe’s cultural or religious activities. This exemption does not include information relating to a site that is all or part of an existing, commonly known and publicized tourist facility or attraction;

(12) A personnel discipline action, or materials or documents supporting that action;

(13) Information developed pursuant to ORS 496.004, 496.172 and 498.026 or ORS 496.192 and 564.100, regarding the habitat, location or population of any threatened species or endangered species;

(14) Writings prepared by or under the direction of faculty of public educational institutions, in connection with research, until publicly released, copyrighted or patented;

(15) Computer programs developed or purchased by or for any public body for its own use. As used in this subsection, “computer program” means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from such computer system, and any associated documentation and source material that explain how to operate the computer program. “Computer program” does not include:

(a) The original data, including but not limited to numbers, text, voice, graphics and images;

(b) Analyses, compilations and other manipulated forms of the original data produced by use of the program; or

(c) The mathematical and statistical formulas which would be used if the manipulated forms of the original data were to be produced manually;

(16) Data and information provided by participants to mediation under ORS 36.256;

(17) Investigatory information relating to any complaint or charge filed under ORS chapter 654, until a final administrative determination is made or, if a citation is issued, until an employer receives notice of any citation;

(18) Specific operational plans in connection with an anticipated threat to individual or public safety for deployment and use of personnel and equipment, prepared and used by a law enforcement agency, if public disclosure thereof would endanger the life or physical safety of a citizen or law enforcement officer or jeopardize the law enforcement activity involved;

(19)(a) Audits or audit reports required of a telecommunications carrier. As used in this paragraph, “audit or audit report” means any external or internal audit or audit report pertaining to a telecommunications carrier, as defined in ORS 133.721, or pertaining to a corporation having an affiliated interest, as defined in ORS 759.010, with a telecommunications carrier that is intended to make the operations of the entity more efficient, accurate or compliant with applicable rules, procedures or standards, that may include self-criticism and that has been filed by the telecommunications carrier or affiliate under compulsion of state law. “Audit or audit report” does not mean an audit of a cost study that would be discoverable in a contested case proceeding and that is not subject to a protective order; and

(b) Financial statements. As used in this paragraph, “financial statement” means a financial statement of a nonregulated corporation having an affiliated interest, as defined in ORS 759.010, with a telecommunications carrier, as defined in ORS 133.721;

(20) The residence address of an elector if authorized under ORS 247.965 and subject to ORS 247.967;

(21) The following records, communications and information submitted to a housing authority as defined in ORS 456.005 by applicants for and recipients of loans, grants and tax credits:

(a) Personal and corporate financial statements and information, including tax returns;

(b) Credit reports;

(d) Market studies and analyses;

(e) Articles of incorporation, partnership agreements and operating agreements;

(f) Commitment letters;

(g) Project pro forma statements;

(h) Project cost certifications and cost data;

(i) Audits;

(j) Project tenant correspondence requested to be confidential;

(k) Tenant files relating to certification; and

(L) Housing assistance payment requests;

(22) Records or information that, if disclosed, would allow a person to:

(a) Gain unauthorized access to buildings or other property used or owned by a public body;

(b) Identify those areas of structural or operational vulnerability that would permit unlawful disruption to, or interference with, the services provided by a public body; or

(c) Disrupt, interfere with or gain unauthorized access to public funds or to information processing, communication or telecommunication systems, including the information contained in the systems, that are used or operated by a public body;

(23) Records or information that would reveal the security measures taken or recommended to be taken to protect:

(a) An officer or employee of a public body;

(b) Buildings or other property used or owned by a public body;

(c) Information processing, communication or telecommunication systems, including the information contained therein, that are used or operated by a public body; or

(d) Those operations of the Oregon State Lottery the security of which are subject to study and evaluation under ORS 461.180 (6);

(24) Writings prepared by or under the direction of officials of Oregon Health and Science University about a person and the person’s potential interest in donating money or property to the university or the person’s actual donation unless disclosure is authorized by the person;

(25) Records of the name and address of a person who files a report with or pays an assessment to a [council, board or] commodity commission [created or organized] established under ORS [chapter 576, 577, 578 or 579. As used in this subsection, “council, board or commission” does not include the advisory committee established under ORS 576.810] 576.051 to 576.584, the Oregon Beef Council created under ORS 577.210 or the Oregon Wheat Commission created under ORS 578.030; and

(26) Information provided to, obtained by or used by a public body to authorize, originate, receive or authenticate a transfer of funds, including but not limited to a credit card number, payment card expiration date, password, financial institution account number and financial institution routing number.

SECTION 99. ORS 291.050 is amended to read:

291.050. As used in ORS 291.050 to 291.060:

(1) “Fee” means an amount imposed and collected by a state agency to defray or recover the costs of administering the law involved in providing a service to the public and used by the state agency to carry out or enforce a law under its jurisdiction. “Fee” does not include:

(a) Fines and civil penalties or any court judgments.

(b) The sale of products or charges for rents, leases or other real estate transaction costs.

(d) Charges levied by one state agency on another state agency.

(2) “Products” means goods and publications purchased voluntarily that have a commercial value. “Products” includes copying charges for public records as defined in ORS 192.410 and the conducting of informational seminars. “Products” does not include services or licenses or permits issued by state agencies.

(3) “State agency” means every state officer, board, commission, department, institution, branch or agency of the state government[, except agricultural commodity commissions created pursuant to ORS chapters 576, 577, 578 and 579,] that is subject to the provisions of ORS 291.201 to 291.222 and 291.232 to 291.260. “State agency” includes the Legislative Assembly, including legislative committees and service agencies, the Secretary of State, the State Treasurer and the Judicial Department. “State agency” does not include a commodity commission established under ORS 576.051 to 576.584 or the Oregon Beef Council created under ORS 577.210.

SECTION 100. ORS 305.410 is amended to read:

305.410. (1) Subject only to the provisions of ORS 305.445 relating to judicial review by the Supreme Court and to subsection (2) of this section, the tax court shall be the sole, exclusive and final judicial authority for the hearing and determination of all questions of law and fact arising under the tax laws of this state. For the purposes of this section, and except to the extent that they preclude the imposition of other taxes, the following are not tax laws of this state:

(a) ORS 577.110 to 577.605 relating to Oregon Beef Council contributions.

(b) ORS 576.051 to 576.584 relating to commodity commission assessments.

(d) ORS chapters 731, 732, 733, 734, 737, 742, 743, 744, 746, 748 and 750 relating to insurance company fees and taxes.

(e) ORS chapter 473 relating to liquor taxes.

(f) ORS chapter 583 relating to milk marketing, production or distribution fees.

(g) ORS chapter 825 relating to motor carrier taxes.

(h) ORS chapter 319 relating to motor vehicle and aircraft fuel taxes.

(i) ORS title 59 relating to motor vehicle and motor vehicle operators’ license fees and ORS title 39 relating to boat licenses.

(j) ORS chapter 578 relating to Oregon Wheat Commission assessments.

(k) ORS chapter 462 relating to racing taxes.

(L) ORS chapter 657 relating to unemployment insurance taxes.

(m) ORS chapter 656 relating to workers’ compensation contributions, assessments or fees.

[(n) ORS chapter 579 relating to potato commission assessments.]

[(o)] (n) ORS 311.420, 311.425, 311.455, 311.650, 311.655 and ORS chapter 312 relating to foreclosure of real and personal property tax liens.

(2) The tax court and the circuit courts shall have concurrent jurisdiction to try actions or suits to determine:

(a) The priority of property tax liens in relation to other liens.

(b) The validity of any deed, conveyance, transfer or assignment of real or personal property under ORS 95.060 and 95.070 (1983 Replacement Part) or 95.200 to 95.310 where the Department of Revenue has or claims a lien or other interest in the property.

(3) Except as permitted under section 2, amended Article VII, Oregon Constitution, this section and ORS 305.445, no person shall contest, in any action, suit or proceeding in the circuit court or any other court, any matter within the jurisdiction of the tax court.

SECTION 101. ORS 473.045 is amended to read:

473.045. (1) A tax is hereby imposed upon the sale or use of all agricultural products used in a winery for making wine.

(2) The amount of the tax shall be $25 per ton of grapes of the vinifera varieties, whether true or hybrid.

(3) An equivalent tax is imposed upon the sale or use of vinifera or hybrid grape products imported for use in a winery licensed under ORS chapter 471 for making wine. Such tax shall be $25 per ton of grapes used to produce the imported grape product. The tax shall be determined on the basis of one ton of grapes for each 150 gallons of wine made from such vinifera or hybrid grape products.

(4) A tax on the sale or use of products that are not subject to subsection (2) or (3) of this section that are used to make wine in this state shall be imposed at a rate of $.021 per gallon of wine made from those products.

(5) In the case of vinifera or hybrid grape products harvested in this state, $12.50 of such tax shall be levied and assessed against the person selling or providing such grape products to the winery. If the purchasing winery is licensed under ORS chapter 471, that winery shall deduct the tax levied under this subsection from the price paid to the seller. If the purchasing winery is not licensed under ORS chapter 471, the seller shall report all sales on forms provided by the State Department of Agriculture and pay $12.50 per ton as a tax directly to the department.

(6) Except for the tax specified in subsection (4) of this section the taxes specified under this section shall be levied and assessed to the licensed winery at the time of purchase of the product by the winery or of importation of the product, whichever is later. The tax specified in subsection (4) of this section shall be levied and assessed to the licensed winery at the time the wine is made.

(7) Except for taxes to be paid to the State Department of Agriculture pursuant to subsection (5) of this section, the taxes imposed by this section shall be paid by the licensed winery and collected by the Oregon Liquor Control Commission subject to the same powers as taxes imposed and collected under ORS chapter 473. Taxes to be paid by sellers under subsection (5) of this section shall be collected by the State Department of Agriculture in the same manner as provided [in] for the collection of an assessment by a commodity commission under ORS 576.345 to 576.365 as set forth in the 2001 Edition of Oregon Revised Statutes. Failure to pay the tax [subjects the violator to the same penalty as provided in ORS 576.991 (2) for failure to pay assessments to the department as required by ORS 576.345 to 576.365] is punishable, upon conviction, by a fine of not more than $500 or by imprisonment in the county jail for not more than 90 days, or both. The tax obligation for a calendar year shall be paid in two installments. Half shall be due on December 31 of the current calendar year. The remaining half shall be due the following June 30.

SECTION 102. ORS 526.660 is amended to read:

526.660. The provisions of ORS 576.410 to 576.450 as set forth in the 2001 Edition of Oregon Revised Statutes, pertaining to budget and expenditure control, apply to budgets and expenditures of the Oregon Forest Resources Institute except that:

(1) All references in such statutes to the Director of Agriculture shall be considered references to the State Forester.

(2) All references in such statutes to the board shall be considered references to the State Board of Forestry.

(3) All references in such statutes to the commission shall be considered references to the board of directors of the institute.

(4) Copies of proposed budgets required as described by ORS 576.425 (1) as set forth in the 2001 Edition of Oregon Revised Statutes shall not be sent to county extension agents, but shall be available for inspection at the institute office and at the office of the State Forester in Salem.

(5) The State Forester shall examine and certify the budget in the manner provided under ORS 576.430 (2) as set forth in the 2001 Edition of Oregon Revised Statutes and make the determination [required] in the same manner as a determination by the Director of Agriculture under ORS 576.445 (2) as set forth in the 2001 Edition of Oregon Revised Statutes.

SECTION 103. ORS 561.250 is amended to read:

561.250. (1) Notwithstanding the provisions of ORS 577.110 to 577.605 and ORS [chapters 576, 578 and 579,] chapter 578, upon request of a commodity commission [created and] established under ORS 576.051 to 576.584, [as provided by such chapters or] the Oregon Beef Council created by ORS 577.210 or the Oregon Wheat Commission created under ORS 578.030, the State Department of Agriculture may, if facilities and services are available:

(a) Provide centralized accounting, data processing, data recording, clerical, secretarial, business management, office and all other similar or related facilities and services. [This shall not include the furnishing of] The department may not provide executive secretary services.

(b) Provide and furnish office space, telephone and other similar or related facilities and services.

(c) Provide for the collection and receiving of assessment or other moneys due a commodity commission, [or] the beef council or the wheat commission. Any person authorized or required to pay an assessment or other moneys to a commodity commission, [or] the beef council [hereby is required] or the wheat commission shall, after notice, [to] pay [such] the moneys to the department in behalf of and in the name of the commodity commission, [or] beef council or wheat commission. [Such] Moneys received by the department under this subsection shall be paid to the appropriate commodity commission, [or] the beef council or the wheat commission.

(2) [Any person authorized or required to carry out any act or to perform any service to or for a commodity commission or the beef council including the filing of reports, after notice, hereby is authorized and required to carry out such act, perform such service or file reports with the department in behalf of and in the name of the commodity commission or beef council. All services performed or carried out by the department as authorized by this section shall be done in behalf of and in the name of the appropriate commodity commission or beef council.] A person authorized or required to file a report or perform other actions with regard to a commodity commission, the Oregon Beef Council or the Oregon Wheat Commission shall, after notice, file the report or perform the action with regard to the department in behalf of and in the name of the commodity commission, the beef council or the wheat commission.

(3) [Notwithstanding the provisions of ORS 577.110 to 577.605 and ORS chapters 576, 578 and 579, commodity commissions and the beef council hereby are authorized to request the department to furnish facilities and services and to use such services as authorized by this section. Such] Commodity commissions [and], the Oregon Beef Council [hereby are authorized to and] and the Oregon Wheat Commission shall pay for facilities or services [so] received under subsection (1) of this section.

SECTION 104. ORS 565.450 is amended to read:

565.450. The County Fair Commission shall prepare and adopt budgets in the same manner as provided for preparation and adoption of budgets in ORS 576.425 to 576.435 as set forth in the 2001 Edition of Oregon Revised Statutes.

SECTION 105. ORS 583.525 is amended to read:

583.525. (1) It is the intent of the provisions of ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to 583.565 to minimize and eliminate as far as possible and practical, certain unfair and inequitable trade and competitive practices and advantages that have existed between types or classes of handlers of milk.

(2) No handler shall purchase milk from a producer or producers for less than the minimum prices established under ORS 583.505. Each handler shall pool such milk in accordance with the provisions of ORS 583.510 and 583.520, whichever is applicable.

(3) Notwithstanding the provisions of ORS chapter 62 or amendments thereto, or other laws to the contrary, a handler may only deduct from the amounts due a producer or producers, the following:

(a) Deductions by the handler for payment to the Oregon Dairy Products Commission under ORS [chapter 576] 576.051 to 576.584, payments to the State Department of Agriculture under this chapter.

(b) A pooling charge of not to exceed the amount established by the department, if such handler actually performs a pooling service for the producer and if such pooling charges are limited to milk purchased from or handled for an individual producer.

(c) Deductions based on assignment, approved and signed by the producer, directing the handler to pay a specified sum to a person other than such handler on the producer’s behalf. Such “other person” shall not be an officer, employee, agent or representative of the handler.

(d) Deductions based on an assignment, approved and signed by the producer, authorizing amounts to be retained by the handler to cover or reimburse such handler for bona fide loans or advances of money made to the producer, or for commodities, articles or merchandise which have been furnished by the handler to the producer.

(e) Deductions for hauling charges in accordance with applicable common or contract carrier rates approved by the Public Utility Commission. If no rates have been established by the Public Utility Commission for the hauling of the milk which is covered by the deduction, then such deduction shall not exceed the rate established by the department after public hearing under the provisions of ORS 183.310 to 183.550 and taking into consideration the advice of the Public Utility Commission.

(f) After the above deductions have been taken, if any, a cooperative corporation or association organized under the laws of any state and engaged in marketing or making collective sales of milk produced by its members or other producers represented by or through the cooperative, may then take and retain such other deductions from payment to its members or producers, differentials as may be specifically authorized in advance by contract or membership agreements between the cooperative and its members.

(4) A handler when making payment for milk, shall clearly identify and explain the deductions to the producer.

(5) The department after public hearing and as authorized by ORS 183.310 to 183.550, may approve additional deductions or further orders as may be necessary to carry out the provisions of this section. Such determinations shall not result in an undue advantage for one handler over another handler or permit a handler to evade or circumvent the intent of this section.

SECTION 106. ORS 604.015 is amended to read:

604.015. (1) The State Department of Agriculture may appoint and designate employees as brand inspectors to administer and enforce the brand inspection activities of the department under ORS 561.144, [577.511, 577.520, 577.535,] 599.205, 599.269, 599.273, 599.610, 603.015, 603.034, 603.075 to 603.095, 603.992, 604.005 to 604.071, 604.640, 604.650 and 604.992 and section 51 of this 2003 Act. In addition, the department may authorize and direct brand inspectors to administer and enforce other laws under the jurisdiction of the department.

(2) In making appointments under subsection (1) of this section, the department may appoint as part-time brand inspectors persons in the unclassified service of the personnel relations system who possess the necessary experience, knowledge and qualifications and pay them on any reasonable and fair basis. However, at any time the average monthly compensation received by such a person during a six-month period equals or exceeds the minimum wage or starting step of the pay range or schedule established for brand inspectors, then the person and the position are subject to the State Personnel Relations Law. If such person in the opinion of the department has satisfactorily carried out the duties as a brand inspector, and if it is in the best interests of the department, the person shall be given regular merit system status and shall be entitled to be hired by the department upon successfully passing a noncompetitive examination for this classification.

(3) In making appointments under subsection (1) of this section, the department may appoint as brand inspectors persons subject to the State Personnel Relations Law. At any time in any area where the workload decreases or other facts or conditions require only the part-time services of a person in a classified position, the department may declare the position to be unclassified.

(4) By written agreement, the department may designate employees of another state agency, or of a county or city government, as brand inspectors to administer and enforce the department’s brand inspection activities or other laws under the jurisdiction of the department in the same manner and to the same extent as brand inspectors appointed under subsection (1) of this section. While carrying out the authority delegated under this subsection, brand inspectors shall comply with the provisions of ORS 561.144, [577.511, 577.520, 577.535,] 599.205, 599.269, 599.273, 599.610, 603.015, 603.034, 603.075 to 603.095, 603.992, 604.005 to 604.071, 604.640, 604.650 and 604.992 and section 51 of this 2003 Act, and the administrative rules promulgated thereunder, collect any brand inspection fees due the department and forthwith pay the same to the department, continue to act under the supervision of their employing agencies, continue to carry out their regular duties for their employing agencies, and receive or have their employing agencies receive any agreed compensation from the department for carrying out the authority delegated under this subsection. The department may terminate any designation under this subsection without hearing or notice, notwithstanding any laws to the contrary.

(5) The department may appoint and designate employees as livestock police officers or investigative officers to administer and enforce the department’s authority under ORS 561.144, [577.511, 577.520, 577.535,] 599.205, 599.269, 599.273, 599.610, 603.015, 603.034, 603.075 to 603.095, 603.992, 604.005 to 604.071, 604.640, 604.650 and 604.992 and section 51 of this 2003 Act, including supervision of brand inspectors. In addition, the department may authorize and direct livestock police officers or investigative officers to administer and enforce other laws under the jurisdiction of the department. Brand inspectors, livestock police officers and investigative officers are empowered to carry out the activities of peace officers and police officers, as set forth in ORS chapter 133. They may be furnished uniforms, identification badges, emergency vehicles and other equipment appropriate to carrying out investigative and law enforcement activities.

SECTION 107. ORS 604.056 is amended to read:

604.056. (1) The State Department of Agriculture may detain, seize or embargo hides or livestock in carrying out and enforcing the provisions of ORS 561.144, [577.511, 577.520, 577.535,] 599.205, 599.269, 599.273, 599.610, 603.015, 603.034, 603.075 to 603.095, 603.992, 604.005 to 604.071, 604.640, 604.650 and 604.992 and section 51 of this 2003 Act relating to the ownership or right to possession of livestock. Recognizing that the provisions of ORS 561.605 to 561.620 relating to the departmental procedures for detaining, seizing or embargoing commodities are not readily applicable to livestock, the following shall apply whenever the department detains, seizes or embargoes hides or livestock under the provisions of ORS 561.144, [577.511, 577.520, 577.535,] 599.205, 599.269, 599.273, 599.610, 603.015, 603.034, 603.075 to 603.095, 603.992, 604.005 to 604.071, 604.640, 604.650 and 604.992 and section 51 of this 2003 Act:

(a) The department shall issue its written notice of detention, seizure or embargo to the person in possession of the hides or livestock, directing them to be held subject to further order of the department and any detention, seizure or embargo shall be subject to the contested case provisions of ORS 183.310 to 183.550. The issuance of a notice of detention, seizure or embargo to a livestock carrier shall relieve such carrier from liability for any loss or damage resulting from the detention, seizure or embargo.

(b) If the department cannot determine from its investigation who is the owner or person entitled to possession of hides or livestock, it may handle and dispose of the hides and livestock in the same manner as provided for the handling and disposition of estray livestock under ORS chapter 607. In the event the livestock is determined by an assistant state veterinarian or deputy state veterinarian to be diseased, disabled or dying so as to be unsalable, the department may order its immediate condemnation in lieu of handling and disposition under ORS chapter 607, and any salvage value recovered by the department from the sale of carcasses or hides shall be disposed of in the same manner as impounded sales proceeds of an unknown owner under subsection (2) of this section.

(c) During an investigation to determine the owner or person entitled to possession of hides or livestock, the department may authorize the hides or livestock to be moved and retained in another location, but the hides or livestock shall not be moved therefrom without a written order issued by the department and then shall only be moved or handled in accordance with the terms of such order.

(d) If the hides or livestock are brand inspected at a livestock auction market, slaughtering establishment or other sales facility where [they] the hides or livestock are destined for sale, the department may permit the sale of the hides or livestock and impound the proceeds of the sale in lieu of detaining, seizing or embargoing the hides or livestock. After the department impounds the sales proceeds, [it] the department shall issue [its] a written notice of impoundment to the seller of the hides or livestock, [which shall direct] directing that the sales proceeds remaining after the seller has deducted sales charges be retained by the seller subject to further order of the department for up to 15 days, at which time the sales proceeds shall be remitted by the seller to the department. The sales proceeds received by the department from the seller are not public funds of the state but rather are held by the department in trust for the person determined to be the owner or entitled to possession of the hides or livestock sold.

(2) If the department impounds sales proceeds under subsection (1)(d) of this section, the department shall give written notice of the impoundment to all known claimants to the sales proceeds, hides or livestock at the last-known addresses thereof, and set forth that the sales proceeds shall be subject to proof of claim for a period of 60 days from the date of the notice of impoundment, during which the claimants may submit their proofs of claim to the department. Within 30 days after expiration of the time within which proofs of claim may be submitted, the department shall review the data submitted, investigate the claims and render [its] a written notice of determination to the persons having submitted proofs of claim. The determination of the department shall be a final order and subject to judicial review under ORS 183.484, and if there is more than one claimant, [no] payment of sales proceeds [shall] may not be made until the expiration of the time within which [such] judicial review may be had. Any impounded sales proceeds [not capable of being] that cannot be paid to persons under this section within one year of impoundment [thereof shall no longer be deemed] cease to be trust funds and [shall thereafter] become part of the state’s public funds continuously appropriated to the department for carrying out the provisions of ORS 561.144, [577.511, 577.520, 577.535,] 599.205, 599.269, 599.273, 599.610, 603.015, 603.034, 603.075 to 603.095, 603.992, 604.005 to 604.071, 604.640, 604.650 and 604.992 and section 51 of this 2003 Act.

SECTION 108. ORS 604.066 is amended to read:

604.066. (1) Except as provided in subsection (2) of this section, the State Department of Agriculture shall charge and collect a brand inspection fee in accordance with the following:

(a) $20 for the brand inspection described in ORS 604.046 (5)(a); or

(b) $5 per head for a brand inspection when the brand inspection certificate utilized is valid for a period in excess of eight days.

(2) In accordance with the provisions of ORS 183.310 to 183.550, the department shall establish a brand inspection fee of not less than 50 cents [nor] and not more than 75 cents per head of cattle[,] or per cattle hide, and of not [be] more than $3.75 per head of horses, mules and asses.

(3) The brand inspection fee, including assessments under [ORS 577.511] section 51 of this 2003 Act, shall be paid to the department by the person requesting or requiring brand inspection to be performed. Livestock auction markets, slaughterhouses and custom slaughtering establishments at which brand inspection is performed shall collect the fees therefor and forthwith pay them to the department. [No] A brand inspection [fees shall] fee may not be collected by livestock auction markets on livestock whose value is $10 or less, unless the animal is destined for slaughter or shipment out of this state or on cattle not [older] more than 90 days of age that are to be transported to a range or pastureland outside of this state. However, any assessments under [ORS 577.511 shall] section 51 of this 2003 Act are still [be] payable to the department.

(4) A person may claim a refund of brand inspection fees paid on Oregon livestock transported from any place in this state to any place outside of this state and then returned to this state, if the movement is continuous without unloading enroute, is done in the usual course of ranch operations and is not related to a change of ownership. The refund may [only] be claimed only for brand inspection fees paid on the identical livestock transported. A written claim for refund shall be submitted to the department within 90 days from the initiation of the livestock movement, accompanied by an affidavit prescribed by the department confirming the circumstances set forth in this paragraph.

(5) Except as provided in [ORS 577.511 (2)] section 51 of this 2003 Act, the department shall deposit all fees paid to it under this chapter in the State Treasury to the credit of the Department of Agriculture Service Fund, and such fees are continuously appropriated to the department for administering and enforcing this chapter. The provisions of ORS 561.144 apply to such fees.

SECTION 109. ORS 576.055, 576.065, 576.075, 576.078, 576.085, 576.091, 576.095, 576.105, 576.115, 576.125, 576.135, 576.145, 576.155, 576.165, 576.171, 576.175, 576.235, 576.295, 576.405, 576.425, 576.430, 576.435, 576.450, 576.505, 576.525, 576.555, 576.565, 576.570, 576.575, 576.578, 576.580, 576.582, 576.584, 576.585, 577.350, 577.410, 577.420, 577.430, 577.440, 577.450, 577.460, 577.535, 577.540, 577.560, 577.565, 577.570, 577.575, 577.580, 577.585, 577.590, 577.600, 577.605, 577.700, 577.705, 577.710, 577.715, 577.720, 577.725, 577.730, 577.735, 577.740, 577.760, 577.765, 577.770, 577.775, 577.780, 577.785, 577.787, 577.790, 577.795, 578.050, 578.140, 578.220, 578.230, 578.240, 579.010, 579.020, 579.030, 579.040, 579.060, 579.070, 579.080, 579.090, 579.100, 579.110, 579.120, 579.130, 579.140, 579.150, 579.160, 579.165, 579.170, 579.175, 579.180, 579.185, 579.210, 579.220, 579.230, 579.240, 579.250, 579.270, 579.280 and 579.990 are repealed.

SECTION 110. The unit and section captions used in this 2003 Act are provided only for the convenience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 2003 Act.

SECTION 111. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage.

Approved by the Governor July 22, 2003

Filed in the office of Secretary of State July 22, 2003

Effective date July 22, 2003

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