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DEPARTMENT OF AGRICULTURE

 

DIVISION 42

PRACTICES AND PROCEDURES FOR COMMODITY COMMISSIONS

603-042-0010

Monitoring of Fiscal Practices and Procedures

(1) To facilitate the monitoring of the fiscal practices and procedures of all commodity commissions by the Department under ORS 576.066, in order to assure that commodity commissions are complying with applicable laws and administrative rules and are maintaining good business management practices, and pursuant to ORS 576.395, all commodity commissions shall comply with the requirements of this section.

(2) As soon as practicable after preparation, copies of the following documents shall be submitted to the Commodity Commission Oversight Program Office of the Department:

(a) Minutes of regular or special meetings;

(b) Administrative rules, including all related statements of the rules;

(c) Executed contracts, agreements, memoranda of understanding or similar documents, and addenda thereto;

(d) Statements of internal operational policies;

(e) Periodic reports or summaries of the fiscal status of the commissions; and

(f) Fidelity bonds covering authorized agent who receives or disburses funds, filed with the commissions under either ORS 576.385, 577.550, or 578.110.

(3) Not later than 60 days after the end of each fiscal year, commission must prepare an annual financial statement of commission revenues and expenses, which shall be made available to the public, submitted to the Commodity Commission Oversight Program Office of the Department, and provided to the Secretary of State. An annual financial statement must include the following:

(a) A balance sheet combining all funds;

(b) A statement of budgeted and actual revenues and expenditures, indicating thereon any changes in fund balances; and

(c) Any appropriate notes of explanation or disclosure.

(4) Every five years, or with greater frequency as determined by each Commission, each Commission will acquire either an independent fiscal evaluation or a financial statement audit of the Commission's accounting records, books and fiscal procedures. The constitutional and statutory audit authority of the Secretary of State is recognized as applicable to commodity commissions, and upon either a request of the Secretary of State or a request of a commodity commission, the Secretary of State may audit a commission either in lieu of or in addition to an Independent Fiscal Evaluation or audit:

(a) Each Commission shall determine the number of years that will be evaluated or audited;

(b) Each Commission will write a letter to the Secretary of State Audits Division seeking permission to obtain a financial statement audit, and obtain permission from the Audits Division before conducting an audit;

(c) Commissions shall follow competitive bidding procedures to obtain financial evaluation or audit services when the value of service is in excess of $10,000, pursuant to OAR 122-050;

(d) Financial statement evaluations and audits shall follow generally accepted accounting principles.

(5) Independent Fiscal Evaluations shall be an option only for those Commissions with annual assessment income of $50,000 or less and shall follow the Fiscal Evaluation Tool adopted by the Commodity Commission Oversight Program Advisory Committee. Each commission that selects the Independent Fiscal Evaluation method shall take official action to name a committee to conduct the evaluation. The committee shall not contain any member who was authorized to sign commission checks during the period that will be evaluated.

(6) One copy of the draft Independent Fiscal Evaluation report or the audit report, whichever the case, shall be mailed via certified mail to the home address of the Commission chairman or chairwoman for review, and one copy shall be mailed via first class mail to the Department's office of the Commodity Commission Oversight Program.

(7) One copy of the final report shall be mailed to the home address of the Commission chairman or chairwoman; a second copy of the final report shall be provided to the Commission's administrator. In addition, one copy of the final report shall be mailed to the Department's office of the Commodity Commission Oversight Program and one copy shall be mailed to the Secretary of State Audits Division.

(8) Whenever a Commission administrator changes, the Commission shall cause an audit to be conducted pursuant to ORS 297.210(2).

(9) The accounting records, books and procedures of all commodity commissions shall be established and maintained in accordance with generally accepted accounting principles.

(10) All new contracts, memoranda of understanding or similar documents committing commissions' funds or actions, and all addenda thereto, shall be submitted to and reviewed by the Department of Agriculture's office of the Commodity Commission Oversight Program prior to execution.

(11) The Attorney General's Model and Uniform Rules of Procedure under the Administrative Procedure Act shall be followed in all matters except where a different procedure is prescribed by a commodity commission's statute or rule.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 561, 576, 577 & 578
Stats. Implemented: ORS 561, 576, 577 & 578
Hist.: AD 7-1983, f. & ef. 7-8-83 ; DOA 14-2007, f. & cert. ef. 8-23-07; DOA 14-2007, f. & cert. ef. 8-23-07

603-042-0015

Department Oversight over Promotion and Research

(1) The Department has the duty to review, and either approve or disapprove plans and projects recommended by a commodity commission for commodity promotion and research under ORS 576.066, 577.125 and 578.025. The Department's review will ensure that the plans or projects are:

(a) Factual;

(b) Not disparaging to other commodities; and

(c) Consistent with the purposes of ORS 576.051 to 576.584, 577, and 578.

(2) In order to assist with the Department's review under section (1) of this rule commodity commissions must:

(a) Submit to the Department two copies of a detailed operational plan describing plans and projects for commodity promotion and research to be undertaken, contracted for, or otherwise funded (in whole or in part) over the next fiscal year. An operational plan submitted under this section shall include, if known and as applicable:

(A) An outline of the message to be communicated through commodity promotion or research, including the target audience;

(B) The objective of the commodity promotion or research;

(C) The manner in which the commodity promotion or research is to be communicated, for example print ads, radio, mailings, e-mail, websites;

(D) The entity that will undertake the commodity promotion or research; and

(E) A description of how the Commission will evaluate the effectiveness of the promotion and how the objectives of the research will be met.

(b) Scientific research plans or projects that will be the subject of grant agreements do not have to be included in the operational plan described in (a) of this section as long as the grant agreements include the information required by (2)(a)(B), (D), and (E) of this rule.

(3) Each Commission shall submit an operational plan under section (2)(a) of this rule within 60 calendar days after its budget hearing. A Commission may request an extension of time from the Department for good cause shown.

(4) If a significant new plan or project for commodity promotion or research was not included in the operational plan described in subsection (2)(a) of this rule the Commission must submit an amendment to the operational plan to the Department for review under subsection (1) of this rule.

(5) The Department will review an operational plan submitted under (2)(a) of this rule in accordance with the criteria in section (1) of this rule, and approve, approve with modifications, or disapprove the operational plan, in writing, within 21 business days of receipt of the plan.

(6) A Commission shall include a clause in all contracts, grants and any other arrangement for payment for promotion or research that reserves to the Commission the right to approve a final communication prior to its dissemination. A Commission shall also reserve the right to refuse payment for work performed, unless a final communication has been approved. A Commission may consult with the Department prior to approval of a final communication in order to ensure that the communication is consistent with Section (1) of this rule.

(7) To the extent feasible, any commodity promotion paid for with commission funds, including promotion carried out by a contractor or grantee, shall include an identification statement such as: "paid for/paid in part by the Oregon _______ (insert name of commission), an agency of the State of Oregon."

(8) If the Department approves with modifications, or disapproves an operational plan or a communication submitted for review under subsection (2) of this rule, the Department shall explain the basis for its modifications or disapproval and shall give the Commission an opportunity to request that the Department reconsider its decision. A request for reconsideration must be in writing, must be received by the Department within 14 business days of the day the plan or communication was modified or disapproved, and must include the basis upon which the Commission believes the Department's modification or disapproval was in error. The Department will act on the request for reconsideration within 14 business days of its receipt.

(9) If a Commission enters into a contract, grant or otherwise contributes funds to an entity to do commodity promotion or research, the Commission may submit evidence to the Department that the United States Department of Agriculture (USDA) engages in oversight and control substantially equivalent to that the Department undertakes under subsection (1) of this rule. After an examination of this evidence, the Department may waive its review under subsection (1) of this rule if it concurs that a substantially equivalent degree of governmental oversight and control will occur.

(10) This rule does not apply to a Commission that has adopted a rule under ORS 576.372 or 578.216 providing for a refund.

(11) For purpose of this rule:

(a) "Commodity commission or commission(s)" means a commodity commission listed in ORS 576.062 , the Oregon Beef Council established in ORS 577 and the Oregon Wheat Commission established in ORS 578.

(b) "Commodity promotion" means any action taken to present a favorable image of the commodity to the general public or to the food and agriculture industry for the purpose of improving the competitive position of the commodity and stimulating the sale of the commodity.

(A) Without limiting the generality of the foregoing, "commodity promotion includes

(i) Providing information to consumers that is designed to enhance the image or sale of the commodity;

(ii) Consumer Education;

(iii) Nutrition Education;

(iv) Providing funding to another person or entity to carry out any of the above.

(c) "Consumer education" means any program or action utilizing or funding public relations, advertising or other means devoted to educating the general public or the food and agriculture industry about the desirable characteristics of the commodity and directed toward increasing the demand for the commodity.

(d) "Research" means any type of test, study, or analysis. Research may include research concerning how to enhance the image or sale of the commodity, as well as research concerning use, production, product development, quality, nutrition, or other characteristics of the commodity.

(12) For the 2004-05 fiscal year, a Commission shall submit an operational plan under section (2)(a) within 60 calendar days of the rule becoming effective. A Commission may request an extension of time from the Department for good cause shown.

Stat. Auth.: ORS 576.066, 577.125, 578.025
Stats. Implemented: ORS 576.066, 577.125 & 578.025
Hist.: DOA 26-2004, f. & cert. ef. 11-30-04

603-042-0020

Commodity Commission Fees for Commodity Commission Program

(1) Pursuant to ORS 576.320, ORS 577.345, and ORS 578.135, the Department of Agriculture may collect annual fees from the commodity commissions to reimburse the Department for the supervisory and administrative functions that the Department performs according to ORS Chapters 576, 577, and 578.

(a) The Department shall consult with the Commodity Commission Oversight Program Advisory Committee related to the annual fees.

(2) The total fee assessed to the commissions shall not exceed $300,000 per fiscal year, beginning with the fee invoiced in fiscal year 2011–2012. The fee shall be used to reimburse the Department for expenses incurred in the previous fiscal year.

(3) The fees for each commission shall be determined using the assessment income as shown on the annual financial reports submitted to the Department.

(4) The total fee for each commodity commission shall be calculated as follows:

(a) First, calculate the base fee for each commission. The base fee for each commission equals 2.3% of the actual assessment income that the commission received in the fiscal year two years prior to the calculation, except that for those commissions with assessment income of $30,000 or less the base fee shall be a flat fee of $750, and except that for those commissions with assessment income exceeding $1,521,738 the base fee shall be a flat fee not to exceed $40,000.

(b) Second, calculate the first shortfall by totaling all the base fees and subtracting the result from the program’s annual operating costs, which are not to exceed $300,000.

(c) Third, calculate the assessment factor for each commission. The assessment factor shall be determined by dividing each commission's fiscal year assessment collection by the total assessment income collected from all commodity commissions. The Department shall use the assessment collection shown on each commission’s year-end financial statements from the fiscal year two years before the calculation. (For example, when calculating the fee invoiced in fiscal year 2011–12, the Department shall use the assessment shown on the 2009–10 year-end financial statement.)

(d) Fourth, calculate the shortfall portion for each commission. For commissions paying a base fee based on a percentage of its actual assessment income, the shortfall portion equals the first shortfall multiplied by the assessment factor for that commission. For commissions paying a base fee based on a flat fee, the shortfall portion is not calculated.

(e) Fifth, calculate the combined fee for each commission. The combined fee for each commission equals the base fee for that commission plus the shortfall portion for that commission.

(f) Sixth, add all the combined fees for all commissions. If the total does not equal the actual cost of the program, which is not to exceed $300,000, a second shortfall exists.

(g) Seventh, if subsequent shortfalls exist, the Department shall assess those shortfalls to each commission that is paying a base fee based on a percentage of its actual assessment income.

(5) The Department shall invoice each commission no later than November 15 each year; and the total fees shall be paid to the Department no later than December 31 of each year.

Stat. Auth.: ORS 561.190
Stats. Implemented: ORS 561, 576, 577, & 578

Hist.: DOA 11-2000, f. & cert. ef. 4-18-00; DOA 14-2007, f. & cert. ef. 8-23-07; DOA 9-2011, f. & cert. ef. 5-10-11; DOA 23-2012, f. & cert. ef. 8-6-12

603-042-0025

Commodity Commission Oversight Program Advisory Committee

(1) The Department will establish an advisory committee for the Commodity Commission Oversight Program (CCOP). The CCOP Advisory Committee will represent a balanced cross section of commodity commissions. The Committee's primary role is to advise the Department on matters relating to the administration of the Commodity Commission Oversight Program and may make recommendations concerning the services rendered by the Department under ORS 576.044.

(2) The CCOP Advisory Committee will consist of seven members representing commodity commissions including commissioners and administrators. Members shall be appointed by the Director. The term of each member will be three years from the date of appointment, except initial terms of one, two and three years will be used to stagger the terms of the Committee members. Vacancies in office will be filled by appointment for the unexpired term.

(3) The Director or an official representative shall serve as ex-officio members without the right to vote.

(4) The Committee will meet at the call of the Director or an official representative at least once annually. A majority of the members constitutes a quorum (4 members constitutes a quorum), a majority vote of the quorum at any meeting shall constitute an official action (a minimum of 4 members).

Stat. Auth.: ORS 561.190, ORS 576.044 & ORS 576.320(3)
Stats. Implemented: ORS 576
Hist.: DOA 11-2000, f. & cert. ef. 4-18-00

603-042-0030

Public Information Purpose and Application

(1) Commission as used herein includes all commodity commissions organized under ORS Chapters 576, 577, 578, and 579.

(2) In order to implement the provisions of ORS 183.330(1) requiring each agency to publish its methods for the public to obtain information, and in order to implement the provisions of ORS 192.430 so as to provide reasonable rules necessary for the protection of commodity commission records and to prevent interference with the regular discharge of the commodity commission duties, the Oregon Department of Agriculture adopts the procedures set forth in OAR 603-042-0030 to 603-042-0050. Unless rules for a specific commission provide otherwise, the procedures set forth in OAR 603-042-0030 to 603-042-0050, shall apply to requests for inspection or copying of public records of a commission, and requests for a commission to prepare and supply certified or other types of public records. Procedures for review of any denial of public records inspections or public record copies shall be in accordance with the provisions of ORS 192.450 to 192.490.

Stat. Auth.: ORS 183, ORS 192 & ORS 576
Stats. Implemented: ORS 183, ORS 192 & ORS 576
Hist.: DOA 11-2000, f. & cert. ef. 4-18-00

603-042-0035

Procedures for Inspection or Copying of Public Records

(1) Requests for inspection or copying of public records must be made either in person or in writing and directed to the Administrator of the commission to which the request is directed. E-mails are not an acceptable form of writing. All requests shall be made at or delivered to the offices of the commission to which the request is directed. Commission addresses are available from the Department of Agriculture, Agricultural Development and Marketing Division located at 1207 NW Naito Parkway, Suite 104, Portland, OR 97209-2832. Requests made in person shall be made between the hours of 8:30 a.m. to 11:30 a.m. and 1:30 p.m. to 4:30 p.m. Monday through Friday of each week except holidays and depending upon staff availability. Requests made in writing shall be acknowledged by the commission to which they are directed and the commission will specify the time and place the requested records will be available for inspection or copying.

(2) Requests for inspection or copying of public records that would result in any of the following shall only be accepted if made in writing:

(a) If the Commission is required to search for, collect, examine, or sort voluminous and separate records or documents in order to comply with such request; or

(b) If the Commission is required to consult with another public body or agency having any interest in the propriety of such request.

Stat. Auth.: ORS 183 & ORS 576
Stats. Implemented: ORS 192 & ORS 576
Hist.: DOA 11-2000, f. & cert. ef. 4-18-00

603-042-0040

Procedures for Obtaining Copies of Public Records

(1) Requests for certified or other types of copies of public records shall only be made in writing and shall include a reasonably specific description of the particular record copy requested, i.e., the type of document, the subject matter, the approximate document date, and the name of the firm or person identified in the document (if pertinent).

(2) Subject to the provisions of OAR 603-042-0050, requested copies of public records shall be submitted to the requestor within a reasonable time following receipt of the request. If the request will require more than 30 days to respond to, the commission will notify the requester of such fact within 31 days of receipt of the request.

Stat. Auth.: ORS 183 & ORS 576
Stats. Implemented: ORS 192 & ORS 576
Hist.: DOA 11-2000, f. & cert. ef. 4-18-00

603-042-0045

Fees for Public Record Request

(1) As provided by ORS 192.440(3), the following fees are established for all public record requests:

(a) Record search: Per hour -- $20 with a minimum charge of $5.00;

(b) Copies: Per page (all duplication processes) -- $.25;

(c) Certification: Per certificate -- $2.50.

(2) If the request appears to require services for which no fee has been established (computer time, travel, shipping cost, communication costs, etc.) the actual cost shall be determined or estimated by the commission. Should such be $25 or more, the requestor shall be notified of such prior to the commission complying with such request.

(3) A requestor shall pay the applicable fees to the commission prior to or at the time the commission complies with a request. No refund of fees shall be made. If the commission notifies a requestor of estimated or determined fees in excess of $25, as provided in section (2) of this rule, the requestor shall upon commission's request, pay a deposit of such estimated or determined fee prior to the commission complying with such request.

(4) No fees shall be assessed to other governmental agencies or offices.

Stat. Auth.: ORS 183, ORS 192 & ORS 576
Stats. Implemented: ORS 192 & ORS 576
Hist.: DOA 11-2000, f. & cert. ef. 4-18-00

603-042-0050

Noncompliance with Requests

(1) If a request received by the commission has been submitted erroneously, in that the commission has no public records relating to the request, the request shall be returned to the requestor with any information concerning the appropriate agency to be contacted.

(2) If a commission determines that all or any part of a public record is exempt from disclosure and will not be disclosed, the commission shall notify the requester of such fact, the public record(s) or part(s) thereof that will not be disclosed, the reasons therefor and the right of the requester to petition the Attorney General for review.

(3) In determining whether all or any part of a public record is exempt from disclosure, a commission shall consider:

(a) Public record exemptions specified in ORS 192.501 and 192.502;

(b) Public record exemptions specified in applicable federal laws or regulations;

(c) Public record exemptions specified in other applicable Oregon law;

(d) Whether a partially exempt public record can be reasonably segregated so as to allow disclosure of an intelligible and undistorted portion of such record while preserving the confidentiality of the exempt portion of such record.

Stat. Auth.: ORS 183 & ORS 576
Stats. Implemented: ORS 192 & ORS 576
Hist.: DOA 11-2000, f. & cert. ef. 4-18-00

603-042-0060

Assessment Collection Procedures

(1) In the event of delinquent assessments or imposition of penalties, when the assessment amount is known, a commodity commission:

(a) Shall send a demand letter immediately following the assessment due date. The demand letter shall include:

(A) A statement that the assessment payment is due and delinquent and that the debtor is subject to a penalty for late payment, pursuant to ORS 576.355, 577.785, 579.250;

(B) The amount of assessments and penalties owed; and

(C) A procedure for requesting reconsideration. A commission may offer a payment plan and include a payment plan request form with a demand letter. If offered, a payment plan must be based on a documented need resulting in an inability to make full payment, be interest bearing, and not exceed one year.

(b) May refer the matter, if unresolved, to the Oregon Department of Revenue sixty days after the date of a demand letter.

(2) In the event of delinquent assessments or imposition of penalties, when the amount is unknown, the process shall be as follows:

(a) A commodity commission shall, immediately following the assessment due date, send a notice of non-payment letter to persons from which assessment payments may be expected. The non-payment letter shall include:

(A) A statement that the recipient may be subject to penalties for late payment, if assessments are owed; and

(B) a statement that the commission may inspect and audit records to determine the amount of assessments due to the commission. An audit will be conducted at the handler or producer's place of business. No person may refuse to permit an inspection and audit.

(b) If the amount owed is determined but the assessment or any accrued penalties remain unpaid, a commodity commission shall send a demand letter requesting payment. As applicable, the demand letter shall include:

(A) A statement that the assessment payment is due and delinquent and that the debtor is subject to a penalty for late payment, pursuant to ORS 576.355, 577.785, 579.250;

(B) The amount of assessments and penalties owed; and

(C) A procedure for requesting reconsideration. A commission may offer a payment plan and include a payment plan request form with a demand letter. If offered, a payment plan must be based on a documented need resulting in an inability to make full payment, be interest bearing, and not exceed one year.

(c) May refer the matter, if unresolved, to the Oregon Department of Revenue sixty days after the date of a demand letter.

Stat. Auth.: ORS 576
Stats. Implemented: ORS 576
Hist.: DOA 11-2000, f. & cert. ef. 4-18-00; DOA 32-2000, f. & cert. ef. 12-6-00

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