Article 12. Funds of California Food And Agricultural Code >> Division 21. >> Part 2. >> Chapter 2. >> Article 12.

The proration zone agent for each marketing program shall collect, either for each primary certificate or for each secondary certificate, or for both, a reasonable and proportional fee to be fixed by the program committee, subject to the approval of the director, so calculated as to provide an amount which is adequate to defray the necessary expenses of instituting and carrying out the marketing program and a proper proportion of the cost of the maintenance of the department in the performance of duties which are required by this chapter.

Any fee for primary certificates or secondary certificates which is fixed by the program committee with the approval of the director, pursuant to this article, is due and payable by each producer upon all units of the commodity of the producer which are subject to the certificates and constitutes a personal debt of the producer.

If any producer has authorized a handler to obtain secondary certificates and pay secondary certificate fees on behalf of the producer, or the handler has been a party to noncompliance with respect to payment for certificates or corresponding fees, the amounts unpaid constitute a personal debt of the handler.

For the convenience of collecting any producer fees which are established pursuant to this article, the director may collect such fees from the handlers of the commodity which is being regulated. Any handler that pays a fee for and on behalf of any producer may deduct the producer fee from any money which is owed by the handler to the producer. Any marketing program may require a handler to deduct producer fees from any money which is owed by the handler to the producer. Such producer fee deductions are hereby declared to be trust funds held by the handler for the purposes of the marketing program concerned and shall be timely remitted, with fee reports, to the director.

The proportion of the fees which is payable to the department may vary upon a seasonal basis for each program according to the estimated expense to be incurred by the director in administering the marketing program. The amount so required shall not exceed 15 percent of the certificate fees which are collected by the proration zone agent specifically for administrative purposes, however, such 15 percent limit may be exceeded when it is approved by the program committee, and, in addition, such proportion of fees which are collected for any educational and trade stimulation marketing program as may be required by the director to administer the marketing program, which shall in no event exceed 5 percent of the fees which are collected for such purpose, unless the payment of a larger proportion of such funds is approved by the marketing program committee for the marketing program.

Upon the request of any marketing program committee, the director shall confer with the committee or its representatives prior to fixing the amount or proportion of any fees of the marketing program which are payable to the department for maintenance of the department in the performance of the duties which are required by this chapter.

All fees shall be deposited promptly by the proration zone agent in a bank which is approved by the Director of Finance, and shall be accounted for immediately to the Director of Food and Agriculture. Each deposit shall be made in the name of the proration zone under which the funds are collected. Any money which is so deposited may be invested and reinvested by the Treasurer or marketing program committee in any of the securities which are described in Article 1 (commencing with Section 16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code, or placed in a depository as provided in Chapter 4 (commencing with Section 16500) of Part 2 of Division 4 of Title 2 of the Government Code, and handled in the same manner as money in the State Treasury. For these purposes, these moneys may also be combined with funds which are determined by the director to be available for investment pursuant to Section 58939. Any increment which is received from investment, reinvestment, or deposit made by the Treasurer shall be remitted to the marketing program committee. The Treasurer may deduct from the remittance an amount equal to the reasonable cost incurred in carrying out this section or may bill the marketing program committee for the costs, and the marketing program committee shall pay the costs from any money which is collected for it pursuant to this chapter.

(a) The funds that are deposited pursuant to Section 59946 shall be disbursed by the director or the marketing program committee, pursuant to regulations prescribed by him or her, only for the expenditures that are incurred by the marketing program committee in carrying out the specific purposes and provisions of the marketing program, including all necessary expenses that are incurred in the formulation, administration, and enforcement of the marketing program, and expenses generated by the auditing requirement imposed by subdivision (b).
  (b) All expenditures shall be audited at least once every two years by one of the following means:
  (1) By contract with a certified public accountant.
  (2) By contract with a public accountant holding a valid permit issued by the California Board of Accountancy.
  (3) By contract with a public accounting firm.
  (4) By agreement with the Department of Finance. A copy of the audit shall be delivered, within 30 days after the completion of the audit, to the Governor, the director, and the Controller.

The proportionate amount of fees which are payable to the department shall be withdrawn from the funds monthly by the director and shall be used only for the department in carrying out its duties as required by this chapter.

At the end of any marketing season as designated in each marketing program, after proper provision has been made for the payment of all necessary expense which is incurred in connection with the marketing season, any money which remains to the credit of the marketing program committee may be refunded upon a pro rata basis to all persons from whom certificate fees were collected. During any marketing season, however, the marketing program committee may, with the approval of the director, carry forward any unexpended balances for expenditure during seasons subsequent to the season during which such fees were collected. Alternatively, the refund may, upon the resolution of the marketing program committee and with the approval of the director, be deferred so as to permit the marketing program committee to use the residual funds to meet operating expenses in the succeeding season or until sufficient funds have been collected, or the collection of sufficient funds is assured, to enable the committee to make the refund and to defray the expenses of the then current marketing season, including an allowance for preliminary expenses of the next succeeding season.

At the time a refund is made, the marketing program committee shall file with the director a claim for the refund to growers that are entitled to such refund. If the director finds that as of the end of any marketing season the amount which remains to the credit of the marketing program committee is so small as to make impractical the computation and remitting of the pro rata refund, he may authorize the transfer of the funds to the then current marketing season for expenditure in carrying out the marketing program.

Unexpended balances of any money which is collected to carry out the educational and trade stimulation efforts which are provided for in Sections 59816, 59817, and 59818 which are sufficient in amount to warrant incurring the expense of making a refund shall be refunded following the termination of any marketing program which contains provisions which are authorized by those sections or following the suspension or termination of educational and trade stimulation provisions of any marketing program. The refund shall be made upon such pro rata basis as the program committee and the director determine is equitable.

If the unexpended balance is so small as to make impractical the computation and remitting of a pro rata refund, the director may authorize the transfer of the funds to the administrative account of the marketing program or to the Department of Agriculture Fund for the support of the department in carrying out its duties in the administration of this chapter.

Unless otherwise requested by the marketing program committee, the director is not required to issue refunds to any producer in an amount less than five dollars ($5).

Any check or warrant which is drawn against the fund of any marketing program which remains unclaimed or uncashed for a period of six months from the date of issuance shall be canceled and the money retained for disbursement to the original payee or claimant upon satisfactory identification for a period of one year from the time the check or warrant is canceled. The money so retained, if not claimed within the period of one year, shall be credited to the then currently operating marketing program for the commodity pursuant to which the funds so retained were collected.

If there is no marketing program then in effective operation for the commodity, the funds shall be credited to the unexpended balance, if any, of the last previous marketing program for the commodity. If there is no marketing program then in current operation or no balance exists from any previous marketing program to which the funds may be credited, the funds so retained may be expended by the director for the benefit of any marketing program established under the provision of this chapter.

An agent or employee of the marketing program committee shall not have or receive any funds which are collected pursuant to this chapter until such agent or employee has filed with the director a bond in such form and in such penal sum as the director may prescribe.

Upon the recommendation of the marketing program committee, the director may relieve the proration zone agent of the responsibility of collecting any amount which is due and unpaid not exceeding five dollars ($5) if the director determines that the collection is improbable or the cost of collecting would exceed the amount which is involved.

The director, in addition to other remedies which are provided by law, may direct suit in the name of the people of this state as plaintiff, to be brought for the recovery of fees as provided in this chapter. In such case, the director may make the necessary affidavit for and a writ of attachment may issue. All fees collected in this manner shall be handled as provided in this article.