2005 California Food and Agricultural Code Sections 6047.1-6047.29 Sharpshooter

6047.1.  The Legislature finds and declares the following:
   (a) The state's agricultural business economy could be seriously
damaged if measures are not taken to prevent  the transmittal of the
plant killing bacterium that causes Pierce's disease and to contain
its vectors, particularly the glassy-winged sharpshooter.
Furthermore, progress made by winegrape growers and others in the
adoption of integrated pest management and sustainable farming
practices is threatened by these destructive pests and diseases.
   (b) The funding to accomplish the purposes of this article shall
be derived from an assessment on all grapes grown in California and
crushed for wine, wine vinegar, juice concentrate, or beverage
brandy.
   (c) This article is not intended to establish a precedent, or to
supersede, or to reduce or in any way alter government funding of the
effort to combat Pierce's disease and other pests in this state.
   (d) The purposes of this article are enhanced by the many and
varied efforts of other agricultural commodities' industries to
combat this bacterium and its vectors.
   (e) This article is enacted for the protection of the winegrape
industry and is also declared to be enacted in the public interest
and in the exercise of the police power of the state for the purpose
of protecting the health, peace, safety, and general welfare of the
people of this state.
   (f) The assessments shall be collected and expended for purposes
consistent with Section 6046.
6047.2.  For the purposes of this article, the following definitions
shall govern its construction:
   (a) "Board" means the Pierce's Disease and Glassy-winged
Sharpshooter Board.
   (b) "Department" means the Department of Food and Agriculture.
   (c) "Marketing season" begins July 1 of each year and ends June 30
of the next year.
   (d) "Producer" means a grower, including a cooperative, of grapes
in California for wine, wine vinegar, juice, concentrate, or beverage
brandy.
   (e) "Processor" means a processor who crushes grapes in California
for wine, wine vinegar, juice, concentrate, or beverage brandy.
   (f) "Person" means a producer, processor, or any other entity that
holds title to grapes subject to assessment.
   (g) "Purchase" means the taking by sale, discount, negotiation,
mortgage, pledge, lien, issue or reissue, gift, or any other
voluntary transaction creating an interest in property.  For purposes
of this paragraph, "sale" shall consist of the passing of title from
the seller to the buyer for a price.
   (h) "Purchased grapes" means grapes grown in California, crushed
by a processor for wine, wine vinegar, juice, concentrate, or
beverage brandy, and purchased from a person considered a separate
entity from the purchaser.
   (i) "Grapes not purchased" means all other grapes grown in
California and crushed by a processor for wine, wine vinegar, juice,
concentrate, or beverage brandy, including, but not limited to, the
following:
   (1) Grapes grown by a person who is not considered a separate
entity from the processor or who is a member of the processor
cooperative.
   (2) Grapes not purchased and crushed to the account of a person
who retains ownership of the grapes.
   (j) "Secretary" means the Secretary of Food and Agriculture.
6047.3.  (a) Within 90 days after the effective date of this
section, the secretary shall create in the department the  Pierce's
Disease and Glassy-winged Sharpshooter Board, which shall consist of
at least 14, but not more than 15 members, of which eight shall be
representatives of producers who are not also processors and six
shall be representatives of processors who are also producers.
   (b) The secretary shall appoint the members of the board from
recommendations received from the industry.  In making the
appointments, the secretary shall select no more than one person from
a producer or processor entity and shall ensure that there is
representation on the board from each of the major grape production
areas in the state.
   (c) The secretary may appoint one additional member to the board,
from nominees received from the board, who shall serve as the public
member.  The public member shall represent the interests of the
public in all matters coming before the board and shall have the same
voting and other rights and immunities as other members of the
board.
   (d) The secretary and other appropriate individuals, as determined
by the board, shall be nonvoting ex officio members of the board.
   (e) It is hereby declared, as a matter of legislative
determination, that persons appointed to the board are intended to
represent and further the interests of the industry concerned, and
that this representation and furtherance is intended to serve the
public interest.  Accordingly, the Legislature finds that, with
respect to persons who are appointed to the board, the industry
concerned is tantamount to, and constitutes, the public generally
within the meaning of Section 87103 of the Government Code.
6047.3.5.  Notwithstanding any other provision of law, the
secretary, upon the recommendation of the board, may contract with
any nonprofit authoritative scientific body with expertise in
agricultural issues in order to expedite research relating to the
eradication of Pierce's disease.
6047.4.  (a) The powers of the board shall be the following:
   (1) Submit recommendations to the secretary on, but not limited
to, the following:
   (A) Selection of officers.
   (B) Terms of office for board members.
   (C) Annual assessment rate.
   (D) Annual budget.
   (E) Expenditures authorized under Section 6047.5.
   (2) Receive money from the assessment and other sources.
   (3) Adopt, amend, and rescind all proper and necessary bylaws and
procedures.
   (4) Coordinate its activities with the secretary's science
advisory board and agricultural/governmental advisory task force.
   (b) A majority of the members of the board shall constitute a
quorum of the board.  The vote of a majority of the members present
at a meeting at which there is a quorum constitutes an act of the
board, except for actions taken pursuant to subdivision (a) of
Section 6047.7, which shall require a majority of the vote of the
board.  The board may continue to transact business at a meeting
where a quorum is initially present, notwithstanding the withdrawal
of members, provided any action is approved by the requisite majority
of the required quorum.
   (c) As authorized by the board, members of the board may receive
per diem and mileage in accordance with the rules of the Department
of Personnel Administration for attendance at meetings and other
approved board activities.
6047.5.  (a) Expenditure of the funds pursuant to this article shall
be restricted to the following:
   (1) Reasonable administrative expenses of the board and the
department, subject to the limitation in Section 6047.12.
   (2) The collection, enforcement, deposit, and handling of the
assessments.
   (3) Notwithstanding Section 6047.12, costs to conduct a
referendum.
   (4) Subject to subdivision (d) of Section 6047.1, research and
other activities related to the transmittal of the plant killing
Pierce's disease bacterium and its vectors, particularly the
glassy-winged sharpshooter, including, but not limited to, research
of integrated pest management and other sustainable industry
practices.  The disbursement of research funds collected pursuant to
Section 6047.7 shall be on a competitive bid basis, shall be exempt
from the requirements of Sections 12798 and 12798.6, and may be
encumbered with existing resources beyond the termination date of
this statute.
   (b) Except as provided in subdivision (c), data and related
information and materials produced during the course of research
conducted pursuant to this article that are in the possession of the
department, the board, or any entity engaged in research funded
pursuant to this article, shall be confidential and shall not be
released for any purpose, except to the extent that they are included
in any final publication of research, or except when required by a
court order after a hearing in a judicial proceeding involving this
article.
   (c) The restrictions in this section shall not apply to research
conducted by the University of California or by other public agencies
or public institutions that are subject to interagency agreements,
except to the extent that they are consistent with policies of the
entity engaged in research funded pursuant to this article on
sponsored research and publication, which may allow for, among other
things, a short period of review by the board in advance of
publication.
   (d) Processors subject to this article and expenditure of the
funds collected pursuant to this article are subject to audit by the
department.
6047.6.  The secretary shall accept the recommendations of the board
unless he or she determines that the recommendations are not
practicable or in the interest of the industry or the public.  The
secretary shall provide the board with the reasons for his or her
decision within 15 days if the secretary does not accept a
recommendation of the board.
6047.7.  (a) During the first marketing season, beginning July 1,
2001, and ending June 30, 2002, the annual assessment shall be three
dollars ($3) for each one thousand dollars ($1,000) assessed pursuant
to Section 6047.9 for all grapes subject to assessment under this
article.  The department shall notify each processor of the
established assessment as soon as practicable.  For each marketing
season thereafter, the following shall apply:
   (1) An annual assessment shall be recommended by the board and
submitted to the department for approval in an amount not to exceed
three dollars ($3) for each one thousand dollars ($1,000) assessed
pursuant to Section 6047.9 for all grapes subject to assessment under
this article.
   (2) The department shall notify each processor of the established
assessment rate by July 15, or as soon thereafter as possible.
   (b) In no event shall there be an assessment on the following:
   (1) Material other than grapes, and defects, or other weight
adjustments deducted from the gross weight ticket.
   (2) Any raisin-distilling material.
   (3) Grapes for which an assessment has been withheld, paid, or is
already owed.
6047.8.  (a) The assessment is the obligation of the producer.
   (b) For purchased grapes, the processor who purchases the grapes
shall act on behalf of the person from whom the grapes were purchased
in collecting and remitting the assessment, shall deduct the
assessment from moneys owed by the processor, and shall pay the
assessment as provided in this article.
   (c) For grapes not purchased, the processor who crushes the grapes
shall do the following:
   (1) Charge the person who retains ownership of the grapes the
assessment and pay the assessment as provided in this article.
   (2) Be responsible for the remittance of the assessment for the
crushing of grapes from persons not considered a separate entity from
the processor.
6047.9.  (a) For purposes of calculating the amount to be collected
by the processor for purchased grapes, the assessment shall be based
on the gross dollar value of the grapes, which is the gross dollar
amount payable for the grapes before any deductions for governmental
assessments and fees.
   (b) For purposes of calculating the assessment for grapes not
purchased, the assessment shall be based on the following:
   (1) The tonnage of grapes delivered less material other than
grapes and defects or other weight adjustments deducted from gross
weight.
   (2) The weighted average price per ton delivered basis purchased
from all nonrelated sources for wine, concentrate, juice, vinegar,
and beverage brandy by processors, by type, variety and reporting
district where grown for the grapes delivered, sources as reported by
the secretary pursuant to Section 55601.5 for the immediately
preceding marketing season.
6047.10.  (a) All assessments payable under this article shall be
remitted to the department no later than January 10 of each year.
The department shall deposit the assessments remitted in  the
Department of Food and Agriculture Fund.
   (b) In no event shall any proprietary information specified in
Section 6047.13 that is received by the department in collecting
assessments be transferred to the board.
   (c) Processors shall not charge producers an administrative fee
for collecting and remitting assessments.
6047.11.  Any producer who disputes the amount of the assessment may
file a claim with the department.  The producer shall prove his or
her claim by a preponderance of the evidence.
6047.12.  (a) Expenditures charged by the department and the board
for administrative purposes shall not exceed a total of 7 percent of
the assessments collected pursuant to this article.  Administrative
purposes shall include, but not be limited to, all auditing expenses
and all costs and attorneys fees resulting from, or relating to,
litigation involving this article against the department, or the
board and its members and agents, and expenses associated with
Section 6047.4 and paragraphs (1) and (2) of subdivision (a) of
Section 6047.5.
   (b) Notwithstanding subdivision (a), the Joint Legislative Audit
Committee and the State Auditor shall maintain independent authority
to audit the expenditure of industry assessments.
6047.13.  (a) All proprietary information obtained by the board or
the department from producers, processors, or any other source,
including, but not limited to, the name, addresses, and assessments
collected from individual producers and processors in the possession
of the board or the department, including processors' lists of their
producers and the assessment of individual producers, is confidential
and shall not be disclosed, except when required by a court order
issued upon a showing of good cause and that the information is
necessary to a judicial proceeding involving this article.
   (b) Disclosure, as permitted under this section, shall be
conducted in camera by the court.
   (c) The court shall, in the court's discretion, issue orders
restraining a party or parties to a judicial proceeding involving
this article from disseminating any proprietary information to the
public or any other person not a party to that judicial proceeding.
6047.14.  (a) The sole remedy against any producer who fails to pay
the assessment and against any processor who fails to collect and
remit assessments within the time required by the secretary shall be
an action to collect the delinquent assessments and payment to the
secretary a penalty of 10 percent of the amount of the assessment
determined to be due and, in addition, payment to the secretary of
11/2 percent interest per month on the unpaid balance.
   (b) A producer may not bring any claim against a processor for
damages, or otherwise, in connection with the assessment or the
required deduction by the processor of the moneys owed to the
producer as provided in this article.
6047.15.  Upon termination of this article, and based upon a
recommendation of the board subject to approval by the secretary, any
collected assessments not required to defray financial obligations
incurred pursuant to this article shall be returned on a pro rata
basis to all persons from whom assessments were collected during the
marketing season immediately preceding the date of termination or
paid to any existing state or federal program engaged in disease
prevention or research activities in the grape industry.  The
assessments refunded to processors shall be paid to producers if the
assessment was previously deducted from moneys owed to the producer
by the processor.
6047.16.  No action in law or equity may be brought against any
members or agent of the board, nor shall any member or agent of the
board be personally liable for the actions of the board or the
department.  No member or agent of the board is responsible
individually in any way to any other person for errors in judgment,
mistakes, or other acts, either of commission or omission, as a
principal, agent, or employee, except for his or her own individual
acts of dishonesty or crime.  No member or agent of the board, is
responsible individually for an act or omission of any other member
or agent of the board, or the department.  Liability is several and
not joint, and no member or agent of the board is liable for the
default of any other member or agent of the board, or the department.
6047.17.  This article shall not be subject to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code.
6047.18.  This article shall be liberally construed.  If any
provision of this article or the application thereof to any person or
circumstances is held to be invalid, the invalidity shall not affect
other provisions or applications of the article which can be given
effect without the invalid provision or application, and, to this
end, the provisions of this article are severable.
6047.19.  (a) On or before December 31st of every other year, the
secretary, after consultation with the board, shall report on the
status of this chapter to the chairs of the policy and fiscal
committees that have the appropriate subject matter jurisdiction in
the Assembly and the Senate.
   (b) The report shall include a financial accounting, including the
distribution of industry assessments and any unexpended amount on
deposit, of the department's efforts to contain Pierce's  disease and
its vectors.
   (c) This article shall remain in effect only until March 1, 2011,
and as of that date is repealed, unless a later enacted statute, that
is enacted before March 1, 2011, deletes or extends that date.
6047.20.  This article shall become inoperative, as of March 1,
2006, unless the secretary finds, in a referendum conducted by him or
her, or a person designated by him or her, that a favorable vote has
been given pursuant to this article.
6047.21.  (a) No later than April 15, 2005, the secretary shall
establish a list of those persons eligible to vote on the continued
implementation of this article.
   (b) Eligibility shall be limited to the producers, processors, and
persons who paid the assessment on grapes crushed in the immediately
preceding season.
   (c) (1) In establishing the list, the secretary may require
processors, producers, and others to submit the names, mailing
addresses, and assessment values of all producers who paid the
assessment on grapes crushed in the immediately preceding marketing
season.
   (2) The information required by the secretary shall be filed
either with the annual assessment report or no later than 30 days
following receipt of a written notice from the secretary requesting
the information.
   (d) Any producer whose name does not appear on the secretary's
list may have his or her name added to the list by filing with the
secretary a signed statement identifying himself or herself as a
producer that paid an assessment during the most recent marketing
season.
6047.22.  For the purpose of voting in the referendum required in
Section 6047.20, only a person required to pay the assessment
pursuant to Section 6047.8 shall have the right to vote.
6047.23.  In determining whether this article shall become
inoperative, the secretary shall find that at least 40 percent of the
total number of persons from the list established by the secretary
participated in the referendum, and that either one of the following
occurred:
   (a) 65 percent or more of the persons who voted in the referendum
voted in favor of this article, and the persons who voted paid a
majority of the assessment dollars on grapes in the preceding
marketing season that were paid by all the persons who voted in the
referendum.
   (b) A majority of the persons who voted in the referendum voted in
favor of this article, and the persons who voted paid 65 percent or
more of the assessment dollars on grapes in the preceding marketing
season that were paid by all the persons who voted in the referendum.
6047.24.  In determining whether the referendum is approved by
producers pursuant to the provisions of this article, the secretary
shall consider the vote in favor of the referendum of any nonprofit
agricultural cooperative marketing association, which is authorized
by its members so to assent, as being the assent, approval, or favor
of the producers that are members of, or stockholders in, that
nonprofit agricultural cooperative marketing association.
6047.25.  The secretary shall establish a period in which to conduct
the referendum that shall not be less than 10 days nor more than 60
days in duration.  The secretary may prescribe additional procedures
to conduct the referendum.  If the initial period established is less
than 60 days, the secretary may extend the period.  However, the
total referendum period may not exceed 60 days.
6047.26.  Nonreceipt of a ballot shall not invalidate a referendum.
6047.27.  (a) If the secretary finds that a favorable vote has not
been given as provided in this article, this article shall become
inoperative as of March 1, 2006.
   (b) If the secretary finds that a favorable vote has been given as
provided in this article, he or she shall certify and give notice of
the favorable vote to all persons whose names and addresses may be
on file with the secretary as provided in Section 6047.21.
6047.28.  (a) The provisions of this article are severable.
   (b) If any provision of this section or its application is held
invalid, that invalidity shall not affect other provisions or
applications that can be given effect without the invalid provision
or application.
6047.29.  (a) The secretary shall appoint an advisory task force
consisting of scientific experts, including, but not limited to,
university researchers and agricultural representatives, for the
purpose of advising the secretary on the control and management of
Pierce's disease.
   (b) Members of the advisory task force, or alternate members when
acting as members, may be reimbursed, upon request, for necessary
expenses incurred by them in the performance of their duties.
   (c) Notwithstanding Sections 6047.20 and 6047.27, this section
shall remain in effect until March 1, 2011, and as of that date is
repealed, unless a later enacted statute, that is enacted before
March 1, 2011, deletes or extends that date.