PRINTER'S NO. 3710
No. 2512 Session of 2004
INTRODUCED BY HERSHEY, DALEY, BAKER, BOYD, ARMSTRONG, BASTIAN, BUNT, CAPPELLI, CAUSER, CLYMER, CORRIGAN, DENLINGER, DeWEESE, EGOLF, FORCIER, GEIST, GEORGE, GILLESPIE, GINGRICH, HARPER, HARRIS, HERMAN, HESS, HICKERNELL, KOTIK, LEH, MAITLAND, MAJOR, McILHATTAN, MILLARD, R. MILLER, O'NEILL, PICKETT, REICHLEY, SAYLOR, SCAVELLO, SCHRODER, SCRIMENTI, SEMMEL, SHANER, B. SMITH, SOLOBAY, STERN, R. STEVENSON, E. Z. TAYLOR, TIGUE, TRUE, WILT, YOUNGBLOOD AND ZUG, APRIL 13, 2004
REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, APRIL 13, 2004
AN ACT 1 Amending the act of July 6, 1984 (P.L.652, No.136), entitled "An 2 act requiring prompt payment to milk producers; providing for 3 the establishment of a security fund; providing for a 4 procedure to process claims against the security fund; 5 providing for alternative methods of security on behalf of 6 milk producers; and providing for certain prohibitions, 7 repeals and penalties," further providing for definitions; 8 providing for passage of title to milk; further providing for 9 security bonds, for bonds, for the security fund and for new 10 licenses; providing for review of security; and further 11 providing for trusteeship, for prohibitions and violations 12 and for penalties. 13 The General Assembly of the Commonwealth of Pennsylvania 14 hereby enacts as follows: 15 Section 1. Section 4 of the act of July 6, 1984 (P.L.652, 16 No.136), known as the Milk Producers' Security Act, is amended 17 to read: 18 Section 4. Definitions. 19 The following words and phrases when used in this act shall
1 have the meanings given to them in this section unless the 2 context clearly indicates otherwise: 3 "Blend price." The actual price due or paid to producers 4 after computation of the licensed dealer's or handler's producer 5 obligation pursuant to the applicable rules, regulations or 6 orders of the board or applicable orders established by the 7 United States Department of Agriculture. 8 "Board." The Milk Marketing Board. 9 "Cooperative." A cooperative agricultural association or 10 corporation of producers organized under the laws of this 11 Commonwealth or of any other state, which qualifies as such 12 under the provisions of the Federal Capper-Volstead Act, and 13 engaged in making collective sales or in the marketing of milk 14 for its own members. A cooperative shall not be deemed a milk 15 dealer or handler but shall be deemed a producer, except as 16 provided in section 3(a). 17 "Handle" or "to handle." The doing of any one or several or 18 all of the following acts: to buy, sell, barter, acquire, store, 19 process, consign, receive, transport or control as owner, buyer, 20 seller, consignee, consignor, bailee, bailor, broker or factor. 21 "Handler." A milk dealer. 22 "Milk." Fluid milk sold to a dealer from a producer. 23 "Milk [dealer" or "handler."] dealer." Any person who 24 purchases or receives or handles on consignment or otherwise 25 milk within the Commonwealth, for sale, shipment, storage, 26 processing or manufacture, within or without the Commonwealth, 27 whether on behalf of the person or others, or both. This 28 definition shall not include cooperatives as provided for in 29 section 3(a). The term includes a vested milk dealer. 30 "Pay period." The dates and terms of payment as required 20040H2512B3710 - 2 -
1 under section 5 and under rules, regulations and orders of the 2 board promulgated pursuant to section 5. 3 "Producer." A person producing milk. 4 "Vested milk dealer." A handler or milk dealer that, on the 5 effective date of this definition, is participating in the 6 security fund under section 9. 7 Section 2. The act is amended by adding a section to read: 8 Section 4.1. Title to milk. 9 (a) The scope of this section is as follows: 10 (1) This section shall apply only to the administration 11 of this act. 12 (2) This section shall have no effect on any provision 13 of the act of April 28, 1937 (P.L.417, No.105), known as the 14 Milk Marketing Law. 15 (3) This section shall not supersede an order of a 16 Federal administrative agency or of the board which requires 17 the cost of shipment of milk to be free on board the place of 18 destination. 19 (b) Notwithstanding 13 Pa.C.S. § 2401(2)(ii) (relating to 20 passing of title; reservation for security; limited application 21 of section), title to milk shall be transferred from the 22 producer to the milk dealer at the point of shipment of the 23 milk. 24 Section 3. Sections 7, 8, 9 and 10 of the act are amended to 25 read: 26 Section 7. Security bonds. 27 (a) Each milk dealer, as required by this act, shall file 28 with the board a corporate surety bond or collateral bond. The 29 bond shall be on a form prescribed by the board conditioned for 30 the payment by the milk dealer or handler of all amounts due 20040H2512B3710 - 3 -
1 under this act and all other applicable Federal laws in addition 2 to the orders of the board for milk purchased or otherwise 3 acquired from producers by the milk dealer or handler during the 4 license year, which payments shall be made within the time 5 limits specified in this act or the regulations of the board and 6 shall be upon such other terms and conditions as the board may 7 prescribe. 8 (b) A corporate surety bond shall be executed to the 9 Commonwealth by the milk dealer as principal and by a corporate 10 surety company authorized and regulated by the Commonwealth as 11 surety. The board shall have no power to reject any corporate 12 surety bond which is so executed by a corporate surety company 13 authorized to do business in this Commonwealth as surety, so 14 long as the amount of the bond is equal to or less than the 15 amount the surety company is authorized by the Pennsylvania 16 Insurance Commissioner to execute on a single bond without 17 obtaining collateral security from the principal. The board may 18 reject any bond which exceeds that amount. A collateral bond 19 shall be executed to the Commonwealth by the milk dealer as 20 principal, shall set forth the collateral posted with the bond 21 and shall have attached thereto the collateral properly assigned 22 and transferred to this Commonwealth. The collateral posted with 23 the bond shall be cash in an equal amount of the bond or the 24 bond shall be secured by an actual deposit with a bank, bank and 25 trust company or national bank within the Commonwealth of money 26 to the full amount of the bond or securities to the amount of 27 the bond consisting of interest-bearing obligations of the 28 Federal Government or an irrevocable letter or letters of credit 29 for the account of the milk dealer authorizing the board to draw 30 on a bank or a trust company or banks or trust companies located 20040H2512B3710 - 4 -
1 within and authorized to do business in this Commonwealth. 2 (c) The bond shall be filed in accordance with the 3 following: 4 (1) Except as set forth in paragraph (2), a milk dealer 5 shall file with the board a bond equal to a minimum of 75% of 6 the highest aggregate amount owed by the milk dealer to all 7 producers for a 40-day period during the preceding 12 months. 8 (2) A vested milk dealer shall file with the board a 9 bond in a sum equal to a minimum of 30% of the highest 10 aggregate amount owed by the vested milk dealer to all 11 producers for a 40-day period during the preceding 12 months. 12 [Such bond may exceed the 30% minimum and be equal to the 13 full amount of the money owed, at the discretion of the 14 dealer.] 15 (d) Milk purchased, acquired or received by a milk dealer or 16 handler from producers outside this Commonwealth and sold or 17 distributed by the dealer or handler as fluid milk within this 18 Commonwealth shall be included in computing the amount of the 19 dealer's or handler's bond, except where the dealer or handler 20 has filed a bond or other security for the protection of the 21 producers with the state wherein the milk is purchased, acquired 22 or received. 23 (e) The obligation of a surety on a bond is a separate and 24 distinct obligation independent of any obligation incurred by 25 the debtor. 26 Section 8. Bonds. 27 Surety bonds or securities for the license year shall be 28 filed with the board on an annual basis not later than the 15th 29 of the month before the beginning of such license year. [Where a 30 dealer elects to participate under the minimum bond requirement 20040H2512B3710 - 5 -
1 as outlined in section 7, in lieu of filing a bond equivalent to 2 75% or more of the greatest amount owed in a 40-day period, he 3 shall notify the board not later than two months prior to the 4 date on which such change is to be made, and shall make the 5 initial payment as required under section 9 not later than one 6 month before such change is to be made.] 7 Section 9. Security fund. 8 (a) Each vested milk dealer shall, in addition to a bond, 9 when less than 75% of the maximum amount owed, also be required 10 to pay monthly 2c/ per hundredweight to the board on all milk 11 purchased from producers during the prior month. The board shall 12 maintain the moneys received in an interest-bearing account and 13 the moneys, including interest, shall be credited to the account 14 of each individual paying vested milk dealer. In the event a 15 vested milk dealer defaults in payment to producers, the moneys 16 submitted by the defaulting vested milk dealer, including 17 interest, shall be made available to the producers shipping to 18 the defaulting vested milk dealer. 19 (b) At the time the value of the bond and the security fund 20 moneys credited to each vested milk dealer shall equal the total 21 amount owed for the above mentioned 40-day payment period, the 22 payments to the fund shall cease or may, with the approval of 23 the board, be used to decrease the value of the bond at the end 24 of the license year. Should the vested milk dealer agree to post 25 a bond for a minimum of 75% of the highest aggregate amount 26 owed for the 40-day pay period, payment to the security fund 27 shall not be required. 28 (c) Nothing shall prevent any vested milk dealer from 29 increasing the vested milk dealer's bond beyond the 30% nor 30 increasing the amount paid into the security fund credited to 20040H2512B3710 - 6 -
1 the vested milk dealer to provide additional protection for the 2 vested milk dealer's producers. 3 (d) At the time a vested milk dealer discontinues purchasing 4 milk from producers, after all the producers are paid in full, 5 the moneys, including interest and minus the administrative fee, 6 as provided for in subsection (e), shall be returned to the 7 vested milk dealer. 8 (e) The board may impose an administrative fee on the 9 security fund moneys on an annual basis at not more than .5% of 10 the total fund. 11 (f) Any security fund established and maintained under this 12 section shall be considered a security trust fund for the 13 exclusive benefit of producers supplying milk to the vested milk 14 dealer paying into the fund. No claims of the Commonwealth or 15 any other person may be made against the fund until all amounts 16 due to producers for supplying milk to the vested milk dealer 17 have been paid. Amounts paid into the security trust fund shall 18 be considered an expense to the vested milk dealer necessary for 19 maintaining [the dealer's] a license and shall not be considered 20 an asset of the vested milk dealer. 21 Section 10. New licensees. 22 (a) Except as set forth in subsection (b), the following 23 apply: 24 (1) A milk dealer or handler purchasing or acquiring or 25 receiving or intending to purchase or receive milk from 26 producers, but not so engaged during the preceding 12 months, 27 shall file a bond in a sum to be fixed by the board in 28 accordance with the handler's anticipated purchases from 29 producers and the handler's obligation to a producer 30 settlement or equalization fund, but not less than the total 20040H2512B3710 - 7 -
1 amount expected to be owed during the full 40-day pay period. 2 (2) The board shall review the operations of the milk 3 dealer or handler every two months and the bond shall be 4 modified by the board at the time the board is satisfied that 5 the producers are adequately secured. 6 (3) At the end of six months of operation, upon approval 7 by the board, the [new] milk dealer or handler [may file the 8 amount of the bond and pay into the security fund as required 9 in sections 7 and 9.] shall file a bond in a sum equal to a 10 minimum of 75% of the highest aggregate amount owed or 11 expected to be owed by the milk dealer or handler to all 12 producers for a 40-day period. 13 (b) Subsection (a) does not apply to a vested milk dealer. 14 Section 4. The act is amended by adding a section to read: 15 Section 10.1. Review of security. 16 (a) If the board determines that the financial condition of 17 a milk dealer that purchases milk from a producer is not 18 adequate to reasonably assure prompt payment to producers, the 19 board may require that milk dealer to furnish additional 20 security to afford producers the protection intended by this 21 act. 22 (b) If the board determines that the value of milk purchased 23 or received from a producer by a milk dealer has increased or 24 may reasonably be anticipated to increase so that the amount of 25 security furnished by the milk dealer does not comply with 26 section 7, as applied to any consecutive two-month period during 27 the current year, the board may require that milk dealer to 28 furnish additional security to afford producers the protection 29 intended by this act. 30 Section 5. Section 11 of the act is amended to read: 20040H2512B3710 - 8 -
1 [Section 11. Trusteeship. 2 (a) In such cases where it appears that the financial 3 condition of the applicant for a license or the licensee is not 4 adequate to reasonably assure payment to producers, the board 5 may require in lieu of other security or payments to the 6 security fund and, where it is practical from an operating 7 standpoint, the licensee to file an agreement providing for the 8 complete control over all processed or manufactured milk and 9 dairy products by a trustee to be selected at least annually by 10 the involved producers. Such trustee shall make and file a 11 trustee's fidelity bond and contracts signed by the operator and 12 the purchasers of the dairy products requiring that payment for 13 such products sold be made to him as trustee. Such trustee shall 14 maintain a separate bank account for that purpose and shall at 15 least twice annually render a true and correct account of his 16 dealings to the board and to the producers. Producers shall have 17 a first lien on assets of trusteeship to assure payment in case 18 of default. 19 (b) The operation of the trustee arrangement, requirements 20 dealing with payments, reports and other operations shall be 21 handled according to regulations established by the board.] 22 Section 6. Section 13 of the act, repealed in part December 23 21, 1984 (P.L.1278, No.243), is amended to read: 24 Section 13. Prohibitions and violations. 25 (a) No milk dealers license shall be issued to any person or 26 organization not in compliance with the provisions of this act. 27 (b) It shall be unlawful for a milk dealer to purchase or 28 receive milk from producers unless the milk dealer has complied 29 with the provisions of this act. 30 (c) In addition to other penalties provided by law, the 20040H2512B3710 - 9 -
1 board may commence a proceeding in court to seek temporary or 2 injunctive relief against any person violating the provisions of 3 this act. 4 (d) Producers who do not receive payments from licensees in 5 accordance with provisions of this act shall immediately notify 6 the board or its representatives. [At no time shall the holder 7 or provider of the bond or security, nor the trustee be 8 responsible for payments to producers beyond the 40-day pay 9 period when payments are in default after the producer has been 10 notified by certified mail.] 11 (e) If any dealer who purchases or receives milk from 12 producers has not filed a surety bond or securities in lieu 13 thereof, in accordance with this act by the 15th day of the 14 month prior to the beginning of the license year, the board 15 shall notify such producers by certified mail that such milk 16 dealer has not filed any security or made other provisions for 17 assuring payments for milk purchased, for the license year 18 commencing the first day of the next month. The board [then may 19 require a trustee to be selected under the provisions of this 20 act or] shall have the right to revoke the license of said 21 dealer. 22 (f) Each milk dealer shall report to the board any increase 23 or anticipated increase in the value of milk purchased or 24 received from producers. 25 Section 7. Section 15 of the act is amended to read: 26 Section 15. Penalties. 27 A violation of this act shall subject a milk dealer or a 28 participating cooperative to a penalty of [$50] $150 for each 29 day that it is late in making payment into the security fund of 30 the assessment required by this act, for each day it sells milk 20040H2512B3710 - 10 -
1 to a milk dealer after being notified by the board of the milk 2 dealer's failure to provide security as provided herein or for 3 each day a milk dealer or participating cooperative has failed 4 to make payments for milk purchased as provided pursuant to 5 section 5. Any person who buys or sells in violation of the 6 credit period provided in section 5 shall be liable for 7 suspension or revocation of his milk dealer's license in 8 pursuance of the act of April 28, 1937 (P.L.417, No.105), known 9 as the Milk Marketing Law, or the board may accept from the 10 licensee an offer in compromise, a penalty at the rate of [$50] 11 $150 for each day of violation. A milk dealer that violates 12 section 13(f) shall be liable for suspension or revocation of 13 the milk dealer's license pursuant to the Milk Marketing Law. 14 Section 8. This act shall take effect in 60 days. C29L31VDL/20040H2512B3710 - 11 -