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The Oregon Administrative Rules contain OARs filed through September 15, 2014
 
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DEPARTMENT OF AGRICULTURE

 

DIVISION 47

PAYMENT FOR AGRICULTURE COMMODITIES

603-047-0010

Definitions

Unless the context or a specifically applicable definition requires otherwise, the following definitions shall apply to OAR 603-047-0100 to 603-047-0500: Rules promulgated under the authority of ORS Chapter 576, Payment for Agriculture Commodities (Seeds).

(1) "Agricultural seed" means grass seed of a type commonly sold for use in turf lawns or as forage seed.

(2) "Authenticate" has the meaning given that term in ORS 79.O1O2.

(3) “Complaint” as used in this rule means a written complaint submitted to the department by a producer or grower pursuant to ORS 576.738 alleging a failure by a seed dealer to make any payment or timely payment under a seed bailment contract, seed production contract or seed purchase contract.

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

(5) “Reasonable Price” means the value of a grass seed kind, variety (or similar variety) and quality (or similar quality) during a time frame corresponding with the date in which payment was due.

(6) “Financial Assurance” as used in ORS 576.741 means any written assurance attesting to the applicant’s financial abilities as obligated under seed production or seed purchase contracts and may include a surety bond.

(7) "Notice of failure to make payment," as used in ORS 576.738 and this OAR means a notice made by the department to a seed dealer of failure to make payment under a seed production contract or a seed purchase contract as described in 576.738 for which a final order affirming the notice has been issued. It does not include a notice that has been withdrawn or successfully appealed.

(8) "Producer” means a person that grows agricultural seed in this state on a commercial basis for a seed dealer.

(9) "Seed Bailment Contract" means a seed production contract under which the seed dealer retains title to all seed, seed stock and plant life grown or used by the producer under the terms of the contract.

(10) "Seed Dealer” means a person that in the ordinary course of business contracts to buy agricultural seed grown in this state by a producer or contracts with a producer for the growing of agricultural seed in this state.

(11) "Seed Deliver” means the date on which the seed grower delivers grass seed to the seed dealer pursuant to a notice from the dealer.

(12) "Seed Grower" means a person that grows grass seed in this state on a commercial basis without entering into a contract with a seed dealer prior to harvesting of the seed.

(13) "Seed Production Contract" means a written agreement between a producer and a seed dealer for the growing of agricultural seed in this state.

(14) "Seed Purchase Contract" means a written agreement for a seed dealer to purchase grass seed that has been grown by a seed grower. "Seed purchase contract" does not include a seed production contract.

(15) “Variety Not Stated Seed" means agricultural seed that is sold in unmarked plastic bags or other unmarked containers without any reference to a variety name for the seed.

Stat. Auth.: ORS 561.190, 576.738, 576.741, 576.744, 633.660, 633.670 & 633.680
Stats. Implemented: ORS 576.738, 576.741 & 574.744
Hist.: DOA 31-2012, f. & cert. ef. 12-21-12

603-047-0100

Seed Production Contract Terms

As provided for in ORS 576.718, 576.721, 576.726, 576.729 and 72.3050 (1) to (3):

(1) If the seed production or purchase contract does not settle the price of the grass seed, a reasonable price may be established according to a department survey of a representation of seed dealers and growers/producers for the purpose of determining a reasonable price at the time of delivery.

(2) When the price of a grass seed kind is the “established price” pursuant to supervised price discussions as described in ORS 646.738, the established price shall apply.

(3) When a disagreement over payment or timely payment stems from a disagreement between the seed dealer and the seed producer or grower over the quality of the seed of a contracted or purchased lot, the parties to the contract may engage in collaborative dispute resolution processes including the process specified in OAR 603-047-0500.

Stat. Auth.: ORS 561.190, 576.738, 576.741, 576.744, 633.660, 633.670 & 633.680
Stats. Implemented: ORS 576.738, 576.741 & 574.744
Hist.: DOA 31-2012, f. & cert. ef. 12-21-12

603-047-0200

Seed dealer Failures to Timely Make Payment; Fee

Pursuant to ORS 576.738, all producers or growers making a complaint of no payment or untimely payment must submit the complaint in writing to the department.

(1) Prior to filing a complaint of untimely or nonpayment with the department, a seed grower or producer must send a notice to the dealer of the amount owed.

(2) Unless expressly provided otherwise in a seed production contract that is authenticated by the producer and seed dealer prior to the producer planting the agricultural seed, a producer shall upon notification to the dealer of seed quality test results, indicating that the seed is eligible for sale, shall also notify a seed dealer, in writing, no later than 30 days prior to commencement of storage fees, a rate for storage fees and the date in which storage fees will commence.

(3) A written complaint must include all documents and information as required by the department and must include a fee of $50.

(a) Upon receipt of the fee and written complaint the department shall verify that the complainant has provided all information required to make a determination and request additional information from the complainant if necessary.

(b) Consistent with law, the agency may initiate an investigation to determine the validity of the complaint.

(4) Upon the department’s determination that a complaint of untimely or nonpayment is valid and correct the department shall notify the seed dealer in writing that the dealer has 30 days to pay the producer or seed grower all delinquent monies plus interest on each delinquent amount at the rate of one percent per month simple interest from the final payment date for that delinquent amount and that failure to make payment as described in the notice may result in the suspension of the seed dealer’s license.

(a) The department must notify the seed dealer of its determination consistent with ORS Chapter 183 and as described in OAR 603-047-0400, and shall serve its notice on the seed dealer and on any and all persons to whom payment is due under the contract.

(b) The complainant or respondent may challenge and offer evidence to prove or disprove the department’s notice in a contested case hearing.

(5) The Department may post a notice issued pursuant to subsection (2) above on its web page and in a newspaper of general circulation. This notice shall include the following information:

(a) The name of the seed dealer to whom the Department has issued a notice;

(b) A statement that the Department has determined as a preliminary matter that the named seed dealer owes payment to a grower/producer and the name of the grower/producer;

(c) A statement allowing any person to file a complaint as described in subsection (1) of this section with the Department within 30 days of publication of the notice.

(6) If it appears that no determination may be made that payment has not been made in accordance with the terms of a seed production contract or seed purchase contract, or that the department does not have jurisdiction over the complaint, the department shall apprise the complainant in writing of its final decision not to pursue the complaint.

(7) The complainant producer or grower shall submit to the department a payment of $150 for each notice of payment demand made to a seed dealer prior to the department’s issuance of the notice.

Stat. Auth.: ORS 561.190, 576.738, 576.741, 576.744, 633.660, 633.670 & 633.680
Stats. Implemented: ORS 576.738, 576.741 & 574.744
Hist.: DOA 31-2012, f. & cert. ef. 12-21-12

603-047-0300

Seed Dealer Financial Assurance; Rules; License Refusal; Agents

As used in ORS 576.741 and this rule, unless the context or a specifically applicable definition requires otherwise.

(1) "Officer” means any of the following individuals:

(a) A president, vice president, secretary, treasurer or director of a corporation;

(b) A general partner in a limited partnership;

(c) A manager in a manager-managed limited liability company;

(d) A member of a member-managed limited liability company;

(e) A trustee;

(f) A person or group of persons who direct or cause the direction of the management and policies of a licensed seed dealer person, whether through ownership of voting securities, by contract or otherwise.

(g) “Owner” means the sole proprietor of, partner in or holder of a controlling interest in the named entity on an application for a seed dealer’s license.

(2)(a) As a condition of issuing a seed dealer license under ORS 633.70, the department shall require the following financial assurance when:

(b) If during the preceding year a seed dealer, owner or officer of a seed dealer’s license has received a final order suspending the dealer’s license and the final order is not withdrawn or successfully appealed, but the seed dealer has demonstrated to the satisfaction of the department that the dealer is current on all payments described in a final order, the department may issue a seed dealer license but shall require a surety bond or irrevocable letter of credit for not less than $100,000 prior to issuing or renewing a license. This bond must be maintained for a period of time not less than 5 years from the date of issuance of the new or renewed license.

(3)(a) The department may refuse to issue or renew a seed dealer license to a seed dealer, owner or officer of a seed dealer, for which the license has been suspended under ORS 576.738, or may refuse to issue or renew a seed dealer license to an officer of a seed dealer at the time of an event that resulted in the license of the seed dealer being suspended, or of a person who exercised substantial control over the seed industry activities of a seed dealer at the time of an event that resulted in the license of the seed dealer being suspended under 576.738.

(b) The department must notify applicant of its decision to refuse to issue or renew a seed dealer license in writing consistent with ORS Chapter 183 and as described in OAR 603-047-0400, and shall serve its notice on the applicant and on any party to the previous action resulting in suspension of the seed dealer’s license.

(4) Any seed dealer or person who was an officer or agent for a seed dealer at the time of an event that resulted in the license of the seed dealer being suspended may provide evidence to the department as to why a seed dealer license should not be suspended and may include evidence;

(a) That the seed dealer named in the order on suspension is current on all payments due as described in a final order issued by the Department;

(b) That the person or entity making the application is not or did not exercise substantial control over the business or activities causing the suspension of the seed dealer license; or

(c) That the person or entity making the application did not have actual authority to establish the performance obligations of the seed dealer under the contract at issue in any seed dealer license suspension.

(5) The department may corroborate the evidence submitted by a seed dealer with any seed growers or producers who were a party to the suspension proceeding in which the seed dealer’s license was suspended. If significant disputes remain regarding the evidence submitted by applicant, the department shall refer the issue of whether the seed dealer has made satisfactory payment to an evidentiary hearing.

Stat. Auth.: ORS 561.190, 576.738, 576.741, 576.744, 633.660, 633.670 & 633.680
Stats. Implemented: ORS 576.738, 576.741 & 574.744
Hist.: DOA 31-2012, f. & cert. ef. 12-21-12

603-047-0400

Department’s Notice; Right to Contested Case Hearing

(1) A notice issued by the department pursuant to OAR 603-047-0200 and 603-047-0300 must be in writing, is subject to any applicable provisions of ORS Chapter 183, and shall include:

(a)A reference to the particular statute and administrative rule involved in the department’s determination;

(b) A statement explaining how the amount of nonpayment was calculated, or how the payment is untimely or both;

(c) A statement explaining that the seed dealer’s license is suspended and the dealer has not demonstrated to the satisfaction of the Department that the dealer is current on all payments due as described in a final order issued by the Department and that the Department may refuse to issue or renew the seed dealer license;

(d) A statement explaining that a license applicant is an officer, owner or agent of the entity holding a seed dealer’s license that was suspended;

(e) A statement of the person’s right to request a hearing within 60 days of receipt of the notice and an explanation of how a hearing may be requested;

(f) A statement that a collaborative dispute resolution process is available as an alternative to a contested case hearing, and that choosing such process will not affect the right to a contested case hearing if a hearing request is received by the agency within the time period stated in the notice and the matter is not resolved through the collaborative process;

(g) A statement indicating whether and under what circumstances ODA may issue a final order by default.

Stat. Auth.: ORS 561.190, 576.738, 576.741, 576.744, 633.660, 633.670 & 633.680
Stats. Implemented: ORS 576.738, 576.741 & 574.744
Hist.: DOA 31-2012, f. & cert. ef. 12-21-12

603-047-0500

Collaborative Dispute Resolution; Mediation

(1) Resolution of contested cases. The department may enter into an informal disposition of a contested case with the parties to a contested case to resolve any matter identified in the department’s notice.

(a) Any informal disposition must be in writing and signed by the party or parties to the contested case;

(b) The department shall incorporate an informal disposition into a final order resolving all issues described in the notice.

(2) Dispute over price stemming from seed quality disputes. When a disagreement over payment or untimely payment stems from a disagreement between the seed dealer and the seed producer or grower regarding the quality of the seed of a contracted or purchased lot, then upon mutual agreement and request of both dealer and producer or grower, the Department may take an official sample of the disputed lot and submit the sample to the Oregon State University, agricultural research station, or other laboratory agreed upon by the parties for testing.

(a) The parties may agree that the results of this test shall be binding upon the dealer and producer or grower.

(b) The parties may agree that the cost of sampling and testing shall be shared equally between the dealer and producer or grower and dealer, but in no case shall the cost of sampling be ascribed to the department unless by consent of the department.

(3) Mediation of disputes. At any time after the department receives a complaint or issues a notice pursuant to OAR 603-047-0200, the parties to the disputed contract may enter into mediation to resolve the matters disputed.

(a) The department may keep a roster of qualified mediators to assist parties wishing to mediate the matters disputed and a mediator may be selected by agreement of the parties.

(b) Any mediation agreement between the parties must contain a provision for reporting to the department as to whether the mediation successfully resolves the matters asserted in the department’s notice. If there is no agreement, the Department may refer the matter to the Office of Administrative Hearings for a contested case hearing.

(c) A request for mediation does not toll the time period for requesting a contested case hearing if a notice has been issued.

Stat. Auth.: ORS 561.190, 576.738, 576.741, 576.744, 633.660, 633.670 & 633.680
Stats. Implemented: ORS 576.738, 576.741 & 574.744
Hist.: DOA 31-2012, f. & cert. ef. 12-21-12

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