Title 43 Agriculture And Horticulture
Chapter 1 Department of Agriculture Part 1 Commissioner — Duties — General Provisions § 43-1-101. Qualifications of commissioner. - The commissioner of agriculture, who is in control of the department of agriculture, shall be a practical farmer, actively identified with the agricultural interests of the state.
History (5)
- Acts 1923, ch. 7, § 30
- Shan. Supp., § 373a73
- Code 1932, §§ 296, 424
- modified
- T.C.A. (orig. ed.), § 43-102.
§ 43-1-106. Duties of commissioner. - It is the duty of the commissioner of agriculture to determine, on the commissioner's own initiative, or upon request by the county legislative body of any county in this state, agricultural areas adjacent to state highways that are:
- (1) Row crop areas devoted primarily for the growth of corn, cotton, soy beans, vegetables, and other similar seasonal agricultural commodities; and
- (2) Grassland areas maintained and used primarily for grazing of livestock.
History (14)
- Acts 1875, ch. 13, § 4
- Shan., § 318
- Code 1932, § 430
- modified
- Acts 1961, ch. 22, § 1
- impl. am. Acts 1965, ch. 82, § 8
- impl. am. Acts 1971, ch. 90, § 1
- impl. am. Acts 1971, ch. 131, § 1
- Acts 1972, ch. 801, § 2
- impl. am. Acts 1973, ch. 341, § 3
- 1977, ch. 112, § 1
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A. (orig. ed.), § 43-107
- Acts 1988, ch. 878, § 13.
§ 43-1-108. Audiovisual recordation of animal inspection permitted. - Unless otherwise prohibited by federal law, the owner of any animal that is subject to an inspection in this state for the purpose of determining compliance with any statutory or regulatory requirement shall be permitted to personally record such inspection by audiovisual means or designate an agent to record such inspection by audiovisual means.
§ 43-1-111. Promotion and enhancement of equine industry. - The commissioner of agriculture shall employ at least one (1) agricultural marketing specialist whose primary duty shall be the provision and coordination of such technical assistance, support, and encouragement as may be needed to promote and enhance development of Tennessee's equine industry. The commissioner shall collect, publish, and distribute statistics relating to equine production and marketing activities and opportunities within the state. The commissioner shall provide such other informational services as may be needed to notify the state's equine industry concerning the financial, managerial, marketing, regulatory, and administrative aspects of the horse industry in Tennessee and in other states.
§ 43-1-112. Nursery stock production, sales and marketing. - (a) The commissioner of agriculture shall employ at least one (1) production and marketing specialist whose primary duty shall be the provision and coordination of technical assistance, support, and encouragement needed to promote and enhance the statewide development of nursery stock production and sales. At least once each year, the commissioner shall collect, publish, and distribute statistics relating to nursery stock production, marketing activities, and opportunities across the state. The commissioner shall provide other information to notify Tennesseans of the financial, managerial, marketing, regulatory, and administrative aspects of nursery stock production.
- (b) As used in this section, “nursery stock production” means growing or propagating ornamental trees, shrubs, and other perennial plants or parts of ornamental trees, shrubs, or plants for sale on a commercial basis.
- (c) To the extent feasible within existing budgetary resources, the University of Tennessee extension shall assist and cooperate with the department of agriculture in the provision and coordination of technical assistance, statistical, marketing and other information, support and encouragement necessary to promote and enhance the statewide development of nursery stock production.
History (2)
- Acts 1993, ch. 166, §§ 1, 2
- 2004, ch. 517, § 3.
§ 43-1-113. Definition of agriculture. - (a) The definition of agriculture as set forth in subsection (b) shall be applicable to the term wherever it appears in the code, unless a different definition is specifically made applicable to the part, chapter, or section in which the term appears.
- (b)
- (1) “Agriculture” means:
- (A) The land, buildings and machinery used in the commercial production of farm products and nursery stock;
- (B) The activity carried on in connection with the commercial production of farm products and nursery stock;
- (C) Recreational and educational activities on land used for the commercial production of farm products and nursery stock; and.
- (D) Entertainment activities conducted in conjunction with, but secondary to, commercial production of farm products and nursery stock, when such activities occur on land used for the commercial production of farm products and nursery stock.
- (2) As used in this definition of agriculture, the term “farm products” means forage and sod crops; grains and feed crops; dairy and dairy products; poultry and poultry products; livestock, including breeding and grazing; fruits; vegetables; flowers; seeds; grasses; forestry products; fish and other aquatic animals used for food; bees; equine; and all other plants and animals that produce food, feed, fiber or fur.
- (3) As used in this definition of agriculture, the term “nursery stock” means all trees, shrubs, or other plants, or parts of trees, shrubs or other plants, grown or kept for, or capable of, propagation, distribution or sale on a commercial basis.
History (2)
- Acts 2005, ch. 19, § 2
- 2014, ch. 581, § 2.
§ 43-1-114. Definition of livestock — Applicability. - (a) The definition of livestock as set forth in subsection (b) shall be applicable to the term wherever it appears in the code, unless a different definition is specifically made applicable to the part, chapter, or section in which the term appears or unless the context otherwise requires.
- (b) “Livestock” means all equine as well as animals that are being raised primarily for use as food or fiber for human utilization or consumption including, but not limited to, cattle, sheep, swine, goats, and poultry.
Part 5 Tennessee Agricultural Museum § 43-1-501. Created — Objects preserved and displayed. - There is created and established the Tennessee agricultural museum, to be located in suitable quarters at Brentwood Hall, near Nashville, for the purpose of housing and preserving such early-American agricultural tools, implements, home furnishings, and other contrivances, and also, agricultural literature, as may be donated to the museum.
History (2)
- Acts 1959, ch. 294, § 1
- T.C.A., §§ 43-2601, 43-5-101.
§ 43-1-502. Administration of museum. - The museum shall be under the jurisdiction of and administered by the department of agriculture.
History (4)
- Acts 1959, ch. 294, § 2
- T.C.A., § 43-2602
- Acts 1980, ch. 737, § 4
- T.C.A., § 43-5-102.
§ 43-1-503. Operation of museum — Annual reports. - The department of agriculture shall transact all necessary and proper business connected with the operation of the museum, which shall include drafting a report on the number and kind of exhibits donated during the preceding year, maintaining a register of visitors, and preparing a suitable report covering the activities of the board during the preceding year, which shall be submitted to the governor for approval.
History (4)
- Acts 1959, ch. 294, § 3
- T.C.A., § 43-2603
- Acts 1980, ch. 737, § 5
- T.C.A., § 43-5-103.
Part 6 Tennessee Agricultural Hall of Fame § 43-1-601. Creation. - There is created and established the Tennessee agricultural hall of fame, to be created, established, and governed as provided by this part.
§ 43-1-602. Board — Members. - (a) The Tennessee agricultural hall of fame is placed under the general supervision of a board consisting of nine (9) members composed of the following:
- (1) Commissioner of agriculture;
- (2) Dean of the college of agricultural sciences and natural resources of the University of Tennessee;
- (3) Dean of the University of Tennessee extension;
- (4) President of the Tennessee Farm Bureau Federation;
- (5) State master of the Grange;
- (6) State supervisor of vocational agriculture; and
- (7) Three (3) members to be appointed by the governor.
- (b) All members shall serve without compensation.
History (2)
- Acts 1937, ch. 43, § 2
- 2004, ch. 517, § 4.
§ 43-1-603. Terms of members. - The term of office of each appointive member shall be two (2), four (4), and six (6) years, respectively, the tenure of office to be designated by the governor at the time of the original 1937 appointments.
§ 43-1-604. Acceptance, admission and induction to hall of fame — Rules and regulations. - (a) The board is empowered to formulate rules and regulations governing the acceptance and admission of candidates to the Tennessee agricultural hall of fame; provided, that no name shall be accepted until an authentic and written record of the achievements of the person in agricultural activities has been presented to and accepted by a majority vote of the board.
- (b) The board shall promulgate rules and regulations to prescribe procedures to be used for the induction of nominees; provided, that any nominee who is deceased shall be eligible for induction five (5) years from the date of such nominee's death.
History (2)
- Acts 1937, ch. 43, § 4
- 1991, ch. 106, § 3.
§ 43-1-605. Gifts, bequests and awards. - The board is empowered to accept and receive gifts, bequests and awards, which are to become the sole property of the Tennessee agricultural hall of fame, and which are to be kept in a proper manner in a suitable and available room or hall in some state-owned building at Nashville; provided, that duplicates of gifts, bequests and awards may be displayed in a suitable room in the college of agricultural sciences and natural resources at the University of Tennessee.
§ 43-1-606. Travel expenses. - All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
§ 43-1-607. Biennial report. - The board shall prepare a report to be delivered to the chair of the agriculture and natural resources committee of the house of representatives and the chair of the energy, agriculture and natural resources committee of the senate by February 15 of each odd-numbered year. The report shall provide information regarding the activities of the board for the previous two (2) years.
History (2)
- Acts 1991, ch. 106, § 4
- 2013, ch. 236, § 1.
Part 7 Agricultural Regulatory Fund § 43-1-701. Establishment — Source of fund — Accounting — Interest — Investment — Expenditures. - (a) There is established within the general fund a special agency account to be known as the Tennessee agricultural regulatory fund, referred to in this part as “the fund.”
- (b) Notwithstanding any law to the contrary, there shall be deposited in the fund all moneys collected pursuant to the following:
- (1) The Tennessee Plant Pest Act, compiled in chapter 6, part 1, of this title;
- (2) The Tennessee Insecticide, Fungicide, and Rodenticide Act, compiled in chapter 8, parts 1 and 2 of this title;
- (3) Chapter 8, part 3, of this title, relative to the aerial application of pesticides;
- (4) The Tennessee Seed Law of 1986, compiled in chapter 10 of this title;
- (5) The Tennessee Commercial Fertilizer Law of 1969, compiled in chapter 11, part 1 of this title;
- (6) The Tennessee Agricultural Liming Materials Act, compiled in chapter 11, part 4 of this title;
- (7) Section 43-27-104, relative to hemp;
- (8) The Tennessee Commercial Feed Law of 1972, compiled in title 44, chapter 6;
- (9) Title 44, chapter 7, relative to marks, brands, registration, and certification;
- (10) The Tennessee Livestock Dealer Act, compiled in title 44, chapter 10, part 2;
- (11) Title 44, chapter 11, relative to livestock sales;
- (12) Title 44, chapter 16, relative to baby chicks;
- (13) Title 47, chapter 26, relative to weights and measures;
- (14) The Tennessee Food, Drug and Cosmetic Act, compiled in title 53, chapter 1;
- (15) [Deleted by 2020 amendment.]
- (16) The Dairy Law of the State of Tennessee, compiled in title 53, chapter 3;
- (17) Title 53, chapter 7, relative to meat and poultry inspections;
- (18) The Tennessee Retail Food Safety Act, compiled in title 53, chapter 8;
- (19) Title 53, chapter 12 [repealed], relative to vending machines; and
- (20) Tennessee Application of Pesticides Act of 1978, compiled in title 62, chapter 21.
- (c) Any unencumbered moneys and any unexpended balance of the fund remaining at the end of any fiscal year shall not revert to the general fund, but shall be carried forward and maintained until expended in accordance with this part.
- (d) Moneys in the fund shall be invested by the state treasurer for the benefit of the fund pursuant to § 9-4-603. Interest accruing on investments and deposits of the fund shall be returned to the fund and remain a part of the fund. The fund shall be administered by the commissioner.
- (e) Moneys in the fund may be expended only in accordance with annual appropriations approved by the general assembly. Subject to the foregoing requirement, moneys in the fund shall be expended at the direction of the commissioner only to defray the costs associated with implementing and effectuating the purposes of the statutes specified in subsection (b).
History (6)
- Acts 1994, ch. 960, § 2
- 2002, ch. 640, §§ 1-5
- 2015, ch. 485, § 1
- 2016, ch. 728, § 3
- 2019, ch. 87, § 4
- 2020, ch. 727, § 1.
§ 43-1-703. Fees authorized — Regulations. - (a) In order to facilitate the proper administration of each statute listed in § 43-1-701(b), the commissioner of agriculture shall establish fees through the promulgation of rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the various services and functions it performs under each of those statutes including, but not limited to, permit processing fees, license fees, registration fees, plans review fees, facility inspection fees, charter fees, and costs of the department.
- (b) Until fees are established in accordance with subsection (a), all fees in existence prior to January 1, 2015, under the statutes specified in § 43-1-701(b), shall remain in full force and effect.
- (c) It is the intent of the general assembly that the fees established pursuant to subsection (a) shall be used only to provide funding for implementation of, or improvement of the performance of the department in carrying out its duties under, the statutes specified in § 43-1-701(b), and the fees shall be graduated so that the fees are fairly apportioned to the extent practicable.
- (d) No permit or renewal of a permit shall be issued to an applicant for a permit under the foregoing authorities until all fees required by this part are paid in full.
- (e)
- (1) If any part of a fee imposed under this part is not paid within fifteen (15) days of the due date, a late charge as provided by this part shall at once accrue and be added to the amount due.
- (2) In addition to other powers and authority provided in this part, the commissioner is authorized to seek injunctive relief in the chancery court of Davidson County or any court of competent jurisdiction for a judgment in the amount owed the state under this part.
- (3) Any person required to pay the fees set forth under this part who disagrees with the calculation or applicability of the fee may petition the commissioner for a hearing. To perfect a hearing, a petition for a hearing, together with the total amount of the fee due shall be received by the commissioner not later than fifteen (15) days after the due date. The hearing shall be in accordance with contested case provisions set forth in the Uniform Administrative Procedures Act. If it is determined that the amount in dispute was improperly assessed, the commissioner shall return the amount determined to be improperly assessed.
- (f) The fees of the department shall be assessed according to the following designated tiers:
- (1) Tier 1. The cost for a tier 1 license, permit, or fee shall be twenty-five dollars ($25.00). The late charge for this tier shall be twelve dollars ($12.00);
- (2) Tier 2. The cost for a tier 2 license, permit, or fee shall be fifty dollars ($50.00). The late charge for this tier shall be twenty-five dollars ($25.00);
- (3) Tier 3. The cost for a tier 3 license, permit, or fee shall be one hundred dollars ($100). The late charge for this tier shall be fifty dollars ($50.00);
- (4) Tier 4. The cost for a tier 4 license, permit, or fee shall be one hundred fifty dollars ($150). The late charge for this tier shall be seventy-five dollars ($75.00);
- (5) Tier 5. The cost for a tier 5 license, permit, or fee shall be two hundred dollars ($200). The late charge for this tier shall be one hundred dollars ($100);
- (6) Tier 6. The cost for a tier 6 license, permit, or fee shall be two hundred fifty dollars ($250). The late charge for this tier shall be one hundred twenty-five dollars ($125);
- (7) Tier 7. The cost for a tier 7 license, permit, or fee shall be three hundred dollars ($300). The late charge for this tier shall be one hundred fifty dollars ($150);
- (8) Tier 8. The cost for a tier 8 license, permit, or fee shall be three hundred fifty dollars ($350). The late charge for this tier shall be one hundred seventy-five dollars ($175);
- (9) Tier 9. The cost for a tier 9 license, permit, or fee shall be four hundred dollars ($400). The late charge for this tier shall be two hundred dollars ($200);
- (10) Tier 10. The cost for a tier 10 license, permit, or fee shall be five hundred dollars ($500). The late charge for this tier shall be two hundred fifty dollars ($250);
- (11) Tier 11. The cost for a tier 11 license, permit, or fee shall be seven hundred fifty dollars ($750). The late charge for this tier shall be three hundred seventy-five dollars ($375); and
- (12) Tier 12. The cost for a tier 12 license, permit, or fee shall be one thousand dollars ($1,000). The late charge for this tier shall be five hundred dollars ($500).
History (4)
- Acts 1994, ch. 960, § 4
- 1998, ch. 636, § 2
- 2002, ch. 640, §§ 7-14, 33
- 2015, ch. 485, § 2.
§ 43-1-704. Adjustment of fees. - (a) Notwithstanding § 4-5-229, rules establishing fees promulgated pursuant to this chapter before July 1, 2016, shall take effect following expiration of the ninety (90) days as provided in § 4-5-207.
- (b) Beginning in 2020 and at least every five (5) years thereafter, the commissioner shall evaluate fees associated with the statutes specified in § 43-1-701(b) and may make adjustments through the rule-making process. Individual fees shall not be adjusted more than once every five (5) years.
- (c) After the initial adjustment under subsection (b), the percentage increase of any subsequent adjustment shall not exceed the percentage of increase in the average consumer price index, all items-city average, as published by the United States department of labor, bureau of labor statistics, between the dates of one (1) adjustment and the immediately subsequent adjustment. Individual fee adjustment amounts may be rounded up to the next tier amount provided in § 43-1-703(f).
- (d) Fees established under § 43-1-703(a) and the statutes specified in § 43-1-701(b) shall not be increased in any year when the fund's fiscal year ending balance exceeds one hundred fifty percent (150%) of the fees collected in the previous year.
History (4)
- Acts 1994, ch. 960, § 5
- 2002, ch. 640, §§ 15, 16
- 2013, ch. 236, § 2
- 2015, ch. 485, § 3.
§ 43-1-705. Conflict with federal law. - In the event that the requirements of this part conflict with applicable federal requirements pertaining to the establishment and collection of permit application or compliance fees by the department, the federal requirements shall take precedence over the conflicting requirements of this part. The commissioner of agriculture has the authority to collect the fees in § 43-1-701 and the fees established in accordance with applicable federal requirements.
Part 8 Special Endowment Funds in the Tennessee FFA Foundation, Inc. § 43-1-802. Appropriations for endowment fund. - The Tennessee FFA Foundation, Inc. is eligible to receive appropriations for its endowment fund from the state general fund subject to the following conditions:
- (1) Neither an appropriation nor the income therefrom may be spent for any organization other than the Tennessee FFA Foundation, Inc.;
- (2) Any appropriation shall be released to such foundation only as a dollar-for-dollar match of private contributions to the endowment fund; and
- (3) Any appropriation shall not revert to the general fund at the end of any fiscal year prior to June 30, 2005, but shall be carried over from year to year for the purpose of accomplishing this part.
§ 43-1-803. Interest on funds. - Interest accruing on investments of the funds deposited to the credit of the Tennessee FFA Foundation, Inc. under this endowment fund shall be used for the sole purpose of promoting FFA programs in the state of Tennessee.
Chapter 6 Pest Control Part 1 Plant Pest Act § 43-6-101. Short title. - This part shall be known and may be cited as the “Tennessee Plant Pest Act.”
History (3)
- Acts 1955, ch. 8, § 1
- T.C.A., § 43-515
- Acts 1997, ch. 70, § 1.
§ 43-6-102. Part definitions. - As used in this part and the rules, regulations or orders made pursuant to this part, unless the context otherwise requires:
- (1) “Agent” means any person soliciting orders for or selling or distributing nursery stock or other plants under the partial or full control of a nursery owner or dealer;
- (2) “Commissioner” means the commissioner of agriculture or the commissioner's duly authorized agents;
- (3) “Dealer” means any person not a grower of nursery stock or other plants who buys or otherwise acquires nursery stock or other plants for the purpose of reselling or otherwise distributing nursery stock or other plants independently of any control of the grower;
- (4) “Florist” means an establishment whose primary business is the retail sale of fresh cut flowers. A florist shall not be considered a dealer; provided, that the sales of rooted plant material sold by a florist shall be those used to enhance fresh cut flower arrangements, or that are intended to be grown and maintained indoors and that are not intended to be planted in the landscape;
- (5) “Greenhouses” means any glass house, screen house or other structure in which plants are grown, kept, or propagated for sale or distribution;
- (6) “Insect pests” means insects or closely related organisms in any stage of development injurious to the agricultural, horticultural, silvicultural, or other interests of the state;
- (7) “Nursery” means any grounds or premises on or in which nursery stock is grown, kept or propagated for sale or distribution;
- (8) “Nursery farmer” means any person engaged in the practice of growing or propagating nursery stock for sale, which person shall for all statutory purposes be deemed to be a farmer;
- (9) “Nursery stock” means all trees, shrubs, or other perennial plants or parts of trees, shrubs, or other perennial plants grown or kept for, or capable of propagation, distribution, or sale on a commercial basis;
- (10) “Nursery worker” means all persons employed on a nursery or property used in conjunction with a nursery, for the purpose of cultivating the soil, growing and propagating the stock, or for duties necessary for the grading, fumigating, cutting, packing, and the like, of the plants on the nursery, or the property used in conjunction with the nursery and prior to their entry into channels of commerce, shall be recognized for all statutory purposes as “farm laborers”; and
- (11) “Plant diseases” means infectious or transmissible diseases of plants, and their pathogens, including parasitic plants in any stage of development.
History (6)
- Acts 1955, ch. 8, § 2
- 1959, ch. 78, § 1
- 1959, ch. 144, § 1
- T.C.A., § 43-516
- Acts 1997, ch. 70, § 2
- 1998, ch. 636, § 1.
§ 43-6-104. Rules and regulations — Force and effect. - The commissioner has the power to promulgate such rules and regulations under the authority of this part as may be necessary to prevent the further introduction of insect pests, pest plants, or plant diseases into the state, and to eradicate or suppress and control such insect pests, pest plants, or plant diseases occurring therein. Rules and regulations established under this part shall have the force and effect of law.
History (4)
- Acts 1955, ch. 8, § 4
- T.C.A., § 43-518
- Acts 1995, ch. 330, § 1
- 1997, ch. 70, § 4.
§ 43-6-105. Uniform Administrative Procedures Act applicable — Exception for quarantine procedure. - Administration of this part shall comply with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, except that an order of quarantine need not be treated as a contested case prior to receipt by the commissioner of a petition to review the quarantine. Petitions shall be heard by the commissioner as soon as reasonably possible.
History (5)
- Acts 1955, ch. 8, § 5
- 1959, ch. 78, § 2
- 1976, ch. 806, § 1(79)
- T.C.A., § 43-519
- Acts 1980, ch. 472, § 2.
§ 43-6-106. Duties of commissioner — Powers. - It is the duty of the commissioner to protect the agricultural, silvicultural and horticultural or other interests of the state from insect pests, pest plants, or plant diseases and to that end the commissioner is vested with power and authority to:
- (1) Inspect or cause to be inspected by duly authorized agents or employees, plants, plant products, or other articles or things that may, in the commissioner's opinion, be capable of disseminating or carrying insect pests, pest plants, or plant diseases. For this purpose, the commissioner has the power to go upon any property, including private property, posted or otherwise, and open any bundle, package, or other container containing, or thought to contain, plants, plant products, or other articles or things capable of transmitting or carrying insect pests, pest plants, or plant diseases;
- (2) Supervise or cause the treatment, cutting, or destruction of plants; treat or supervise treatment of land and soil; require the elimination of specific crops and prohibit the planting of those crops in designated areas for stipulated periods; regulate planting dates, harvest dates, and other cultural practices in designated areas; require destruction, treatment, other handling of crop residues and debris in designated areas; otherwise regulate land use in designated areas, when any or all of these measures are necessary to prevent the dissemination or to control or to eradicate insect pests, pest plants, or plant diseases and when rules and regulations therefor have been duly promulgated;
- (3) Inspect or cause to be inspected all nurseries, greenhouses, or other plant growing establishments of whatever kind in the state at such intervals as the commissioner may deem best and promulgate such rules and regulations governing nurseries, greenhouses and other plant growing establishments and the movement of nursery stock, plants, and plant propagating material as the commissioner may deem necessary in the eradication, control or prevention of spread of insect pests, pest plants, or plant diseases;
- (4) Promulgate rules and regulations to govern the sale and distribution of nursery stock, other plants or plant propagating material by dealers and agents;
- (5) Promulgate rules and regulations under which nursery stock, other plants, plant propagating material, and plant products may be brought into this state from other states, territories, and foreign countries;
- (6) Promulgate such rules and regulations with reference to plants and plant products while in transit through this state as may be deemed necessary to prevent the introduction into and dissemination within this state of insect pests, pest plants, or plant diseases;
- (7) Require of any person, firm or corporation having plants, plant products, or other articles or things likely to carry insect pests, pest plants, or plant diseases, in the possession of such person, firm or corporation to give full information as to the origin and source of such plants, plant products, or other articles or things. It is a Class A misdemeanor for such person, firm or corporation to refuse to give such information if able to do so;
- (8) Declare a dangerous insect pest, pest plant, or plant disease to be a public nuisance as well as any plant or other thing infested or infected with a dangerous insect pest, pest plant, or plant disease or that has been exposed to infestation or infection and therefore likely to communicate infestation or infection;
- (9) Declare a quarantine against any area, place, nursery, forest, orchard, farm lot, or other boundary of whatever size or description, or any county or counties within this state, other states, territories, foreign countries or portion thereof in reference to dangerous insect pests, pest plants, or plant diseases and prohibit the movement within the state or any part of the state or the introduction into this state from other states, territories, or foreign countries, of all plants, plant propagating material, plant products, or other articles or things including soil from quarantined places or areas that are likely to carry dangerous insect pests, pest plants, or plant diseases if the quarantine is determined, after due investigation by the commissioner to be necessary in order to protect the agricultural, horticultural, and silvicultural, or other interests of this state. In such cases, the quarantine may be made absolute, or rules and regulations may be adopted prescribing the method and manner under which the prohibited articles may be moved into or within, sold, or otherwise disposed of in this state;
- (10) Intercept and inspect while in transit or after arrival at destination, all plants, plant propagating material, plant products, or other things likely to carry insect pests, pest plants, or plant diseases being moved in this state, and if upon inspection, such plants, plant propagating material, plant products, or other things are found to be infested or infected with an injurious insect pest, pest plant, or plant disease, or if such material is believed to be likely to communicate or transmit an injurious insect pest, pest plant, or plant disease or is being transported in violation of any of the rules and regulations established pursuant to and under the authority of this part, then the plants, plant propagation material, plant products or other things may be treated when necessary, at the expense of the owners, and released, returned to the sender, or destroyed, the disposition to be determined under rules and regulations to be promulgated by the commissioner;
- (11) Carry on investigations relating to methods of control, eradication, and/or prevention of spread of insect pests, pest plants, or plant diseases, and for that purpose may rent, lease, or purchase the necessary facilities, in accordance with existing state law pertaining to such transactions; and
- (12) Apply to courts of competent jurisdiction for writs of injunction and institute criminal proceedings for the enforcement of this part. It is the duty of the several district attorneys general to represent the commissioner when called upon to do so.
History (6)
- Acts 1955, ch. 8, § 6
- 1959, ch. 78, § 3
- T.C.A., § 43-520
- Acts 1989, ch. 591, § 1
- 1995, ch. 330, § 2
- 1997, ch. 70, § 5.
§ 43-6-107. Appointment of assistants — Cooperative agreements — Official publication. - The commissioner has the power and authority to:
- (1) Purchase all necessary materials, supplies, office, laboratory, and field equipment and other things, in the manner prescribed by law, and make such other expenditures as may be essential and necessary in carrying out this part within the limits of the amount appropriated by law;
- (2) Appoint, in accordance with any applicable rules or regulations of the department of human resources, such assistants, inspectors and other employees as may be required and prescribe their duties, and delegate to the assistants, inspectors and other employees such powers and authority as may be deemed proper within the limits of the power and authority conferred upon the commissioner by this part;
- (3) Enter into cooperative arrangements with any person, municipality, county and other departments of this state, and boards, officers and authorities of other states and the United States for inspection with reference to insect pests, pest plants, or plant diseases and for the control and eradication of insect pests, pest plants, or plant diseases, and to contribute a just proportionate share of the expenses incurred under such arrangements; and
- (4) Publish, at intervals to be determined by the commissioner, an official organ of the department of agriculture for public distribution and may from time to time publish and distribute to the public such further information as may be deemed necessary or in the public interest.
History (4)
- Acts 1955, ch. 8, § 7
- T.C.A., § 43-521
- Acts 1995, ch. 330, § 3
- 1997, ch. 70, § 6.
§ 43-6-108. Promulgation of rules — Certified copies in evidence. - All rules and regulations made pursuant to this part shall be promulgated as provided by law; provided, that in case of emergency where it is necessary to place a quarantine to take effect immediately, promulgation may be made by proclamation of the commissioner. Printed copies of all acts, rules, regulations, quarantines, or other notices, which shall be published by the commissioner under authority granted by this part, shall be admitted as sufficient evidence of such acts, rules, regulations, quarantines or other notices in all courts and on all occasions whatsoever; provided, that the correctness of such copies be certified to by the commissioner.
History (3)
- Acts 1955, ch. 8, § 8
- T.C.A., § 43-522
- Acts 1997, ch. 70, § 7.
§ 43-6-109. Pests and diseases — Special permits. - The introduction into this state of any insect pests, pest plants, or plant diseases, except under a special permit issued by the commissioner, is prohibited.
History (4)
- Acts 1955, ch. 8, § 9
- T.C.A., § 43-523
- Acts 1995, ch. 330, § 4
- 1997, ch. 70, § 8.
§ 43-6-110. Isolation of plants and products — Inspection. - Any person, including common carriers, who shall knowingly receive plants, plant products, or other articles or things sold, given away, carried, shipped, or delivered for carriage or shipment within the state, as to which this part and the rules and regulations promulgated pursuant to this part have not been complied with, shall be required to isolate and hold the plant, plant product, or other article or thing, unopened and unused, subject to such inspection or other disposition as may be provided by the commissioner.
History (3)
- Acts 1955, ch. 8, § 10
- T.C.A., § 43-524
- Acts 1997, ch. 70, § 9.
§ 43-6-111. Liability of principal. - In construing and enforcing this part, the act, omission or failure of any official, agent, or other person acting for, or employed by, any association, partnership, corporation or other principal within the scope of such person's employment or office shall in every case be deemed the act, omission, or failure of the association, partnership, corporation or other principal as well as that of the individual.
History (2)
- Acts 1955, ch. 8, § 11
- T.C.A., § 43-525.
§ 43-6-112. Violations — Penalty. - Any person who violates any provision or requirement of this part or of the rules and regulations made under this part or of any order or notice given pursuant to this part, or who forges, counterfeits, destroys, or wrongfully or improperly, uses any certificate provided for in this part or in the rules and regulations made pursuant to this part, or who interferes with or obstructs the commissioner or any of the commissioner's duly designated employees or agents in the performance of the person's duties, commits a Class C misdemeanor.
History (4)
- Acts 1955, ch. 8, § 12
- T.C.A., § 43-526
- Acts 1989, ch. 591, § 113
- 1997, ch. 70, § 10.
§ 43-6-113. Establishment of fees. - (a) A nematode sample analysis fee shall be set by rule pursuant to § 43-1-703.
- (b) Nursery stock or other plant material plant dealer certificate fees shall be set by rule pursuant to § 43-1-703.
- (c) Florist certificate fees shall be set by rule pursuant to § 43-1-703.
- (d) The fee for phytosanitary certificates shall be equivalent to United States department of agriculture, animal and plant health inspection service fees.
- (e) The department shall have no authority under this section to assess the greenhouse plant certification fee, or any other license fee or plant certification fee established by this part against:
- (1) Any person engaged in the production of tobacco seedlings; or
- (2) Any farmer who produces and sells plants or seedlings in connection with the person's farming operations, but who is not primarily engaged in the business of producing and selling plants or seedlings, as determined by the commissioner.
Part 2 Eradication of Johnson Grass § 43-6-201. Adoption of part by county legislative body. - The various county legislative bodies of the state may by resolution adopt this part by a vote of its members. Upon a two-thirds (⅔) vote of the county legislative body for the adoption of this part, the results of the vote shall be certified to the commissioner of agriculture. If a majority of the votes cast are against the adoption of this part, the question shall not be resubmitted for reconsideration of the county legislative body for at least one (1) year after the vote.
History (3)
- Acts 1961, ch. 306, § 1
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A., § 43-2701.
§ 43-6-202. Johnson grass extermination areas — Designation by commissioner of agriculture — Notice. - The commissioner of agriculture shall within thirty (30) days after receipt of the notice from the county clerk as provided in § 43-6-201 declare the county to be a “Johnson grass extermination area” and the commissioner shall cause suitable notice to be published in a newspaper in the county for two (2) consecutive weeks. The notice shall specify that the county has been declared a Johnson grass extermination area and that all property owners in the county shall, not later than April 30 following the publication of the notice, take steps to control and eradicate Johnson grass on all lands owned by them or under their control. The commissioner may have inserted in the notice such other pertinent and relevant information as the commissioner may deem advisable.
History (3)
- Acts 1961, ch. 306, § 2
- impl. am. Acts 1978, ch. 934, §§ 22, 36
- T.C.A., § 43-2702.
§ 43-6-203. County weed control boards. - (a) The commissioner of agriculture shall, within ten (10) days after receipt of the notice provided for in § 43-6-201, appoint a three-member county weed control board composed of citizens of the county, which shall be named by the county legislative body to serve as advisors and to assist the commissioner in the administration of this chapter and to perform such other duties as may be prescribed by the commissioner.
- (b) Members of the board shall receive no salary for their services, but shall be reimbursed by the county legislative body for their actual and necessary expenses incurred in the performance of their duties.
History (3)
- Acts 1961, ch. 306, § 3
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A., § 43-2703.
§ 43-6-204. Duties of commissioner of agriculture. - (a) The commissioner of agriculture has the duty under this part to:
- (1) Assist the county weed control board, all public utilities, the department of transportation, the county legislative body, drainage districts, the county highway department, other public and quasi-public corporations and other interested parties in the control and eradication of Johnson grass;
- (2) Be informed of the origin, nature and appearance of Johnson grass and the manner in which it is disseminated and shall follow recommendations of the University of Tennessee, college of agricultural sciences and natural resources, as to the best and approved method to control, eradicate and prevent the dissemination of Johnson grass; and
- (3) Cooperate with and have authority to enter into cooperative agreements with state and federal agencies and departments for the furtherance of the control and eradication of Johnson grass.
- (b) The commissioner shall make all rules and regulations for carrying out this part and its requirements.
History (3)
- Acts 1961, ch. 306, § 4
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A., § 43-2704.
§ 43-6-205. Inspection of land by county weed control boards. - (a) The county weed control board is responsible for the inspection of lands and places for compliance with this part, and has the authority to employ all necessary assistance required for inspections, and shall certify the expense thereof to the county clerk for payment.
- (b) The commissioner or the commissioner's designated representative, as well as the county weed control board or the designated representative of the board, shall have the right of ingress or egress upon all lands in the county in making an inspection or performing any other duties imposed by this part.
History (3)
- Acts 1961, ch. 306, § 5
- impl. am. Acts 1978, ch. 934, §§ 22, 36
- T.C.A., § 43-2705.
§ 43-6-206. Failure to comply — Prosecution. - Upon failure or refusal to comply with this part, the failure or refusal shall be reported by the county weed control board to the district attorney general for the county affected, and it shall be the duty of the district attorney general to prosecute all persons violating this part in the manner provided in this part.
History (2)
- Acts 1961, ch. 306, § 6
- T.C.A., § 43-2706.
§ 43-6-207. Duty to control and exterminate. - (a) It is the duty of all public utilities where they control the surface area, the department of transportation, the county legislative body, drainage districts, county road departments and other public and quasi-public corporations and every landowner in Johnson grass extermination areas, to:
- (1) Control and eradicate Johnson grass and prevent its regrowth and reinfestation on all lands, rights-of-way and easements owned, occupied or controlled by them;
- (2) Employ methods of control and eradication and for the prevention of the regrowth and reinfestation of Johnson grass as directed by the commissioner of agriculture or the county weed control board; and
- (3) Comply with all orders, rules and regulations promulgated by the commissioner of agriculture pursuant to this part.
- (b) The department of transportation may not enter into such program on a pilot basis with more than one (1) county.
- (c) The state shall not be held civilly liable for any act in compliance with the purpose and intent of this part.
History (3)
- Acts 1961, ch. 306, § 7
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A., § 43-2707.
§ 43-6-208. Nuisance — Action to enjoin. - The existence or growth of Johnson grass, in counties electing to come under this part, is declared to be a public and common nuisance and the district attorneys general for and in those counties affected shall have the duty to bring an action in the circuit court of such county to enjoin this nuisance. The action shall be brought in the name of the state of Tennessee and shall be tried as in equity cases. In order to sustain the action, it shall be necessary to allege that thirty (30) days' advance notice of the filing of the suit has been served upon the defendant or defendants, and that the defendant or defendants, have taken no suitable action to comply with this part prior to the filing of the suit. Any landowner whose land is adjacent to or within one hundred feet (100′) of land on which the nuisance is permitted or maintained and who is not undertaking a Johnson grass control program may bring a civil action for injunction against any person permitting or maintaining the nuisance and shall, in addition to injunctive relief, be entitled to recover as a penalty the sum of five hundred dollars ($500) and any actual damages sustained as a result of the maintenance of the nuisance.
History (2)
- Acts 1961, ch. 306, § 8
- T.C.A., § 43-2708.
§ 43-6-209. Appropriation of funds by county. - Upon the adoption of this part by a county, such county thereafter is specifically authorized to appropriate funds to carry out and administer this part.
History (2)
- Acts 1961, ch. 306, § 10
- T.C.A., § 43-2709.
§ 43-6-210. Removal of county from provisions of part. - When any particular county has adopted this part and brings itself within this part, it may at any subsequent time remove itself from the provisions hereof by a proper resolution therefor adopted by a majority vote of the county legislative body. Upon the adoption of such resolution, this part shall not apply to the county.
History (3)
- Acts 1961, ch. 306, § 9
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A., § 43-2710.
Part 3 Pest Control Compact [Repealed] § 43-6-301. [Repealed]
History (3)
- Acts 1969, ch. 81, § 1
- T.C.A., §§ 43-2801, 43-7-101
- repealed by Acts 2014, ch. 509, § 2, effective March 6, 2014.
§ 43-6-302. [Repealed]
History (3)
- Acts 1969, ch. 81, § 2
- T.C.A., §§ 43-2802, 43-7-102
- repealed by Acts 2014, ch. 509, § 2, effective March 6, 2014.
§ 43-6-303. [Repealed]
History (3)
- Acts 1969, ch. 81, § 3
- T.C.A., §§ 43-2803, 43-7-103
- repealed by Acts 2014, ch. 509, § 2, effective March 6, 2014.
§ 43-6-304. [Repealed]
History (3)
- Acts 1969, ch. 81, § 4
- T.C.A., §§ 43-2804, 43-7-104
- repealed by Acts 2014, ch. 509, § 2, effective March 6, 2014.
§ 43-6-305. [Repealed]
History (3)
- Acts 1969, ch. 81, § 5
- T.C.A., §§ 43-2805, 43-7-105
- repealed by Acts 2014, ch. 509, § 2, effective March 6, 2014.
§ 43-6-306. [Repealed]
History (3)
- Acts 1969, ch. 81, § 6
- T.C.A., §§ 43-2806, 43-7-106
- repealed by Acts 2014, ch. 509, § 2, effective March 6, 2014.
§ 43-6-307. [Repealed]
History (3)
- Acts 1969, ch. 81, § 7
- T.C.A., §§ 43-2807, 43-7-107
- repealed by Acts 2014, ch. 509, § 2, effective March 6, 2014.
§ 43-6-308. [Repealed]
History (3)
- Acts 1969, ch. 81, § 8
- T.C.A., §§ 43-2808, 43-7-108
- repealed by Acts 2014, ch. 509, § 2, effective March 6, 2014.
Part 4 Eradication of the Cotton Boll Weevil § 43-6-401. Purpose. - The general assembly has found and determined and does declare that the boll weevil is a public nuisance, a pest and a menace to the cotton industry. Due to the interstate nature of boll weevil infestation, it is necessary to secure the cooperation of cotton growers and other state and federal governments to carry out a program of boll weevil suppression or eradication. The purpose of this part is to secure the suppression or eradication of the boll weevil and to provide for certification of a cotton grower's organization to cooperate with state and federal agencies in the administration of cost sharing programs for the suppression or eradication of the boll weevil.
§ 43-6-402. Part definitions. - As used in this part, unless the context otherwise requires:
- (1) “Boll weevil” means Anthonomus grandis Boheman in any stage of development;
- (2) “Certificate” means a document issued or authorized by the commissioner indicating that a regulated article is not contaminated with boll weevils;
- (3) “Commissioner” means the commissioner of agriculture or the commissioner's designated representative;
- (4) “Cotton” means any cotton plant or cotton plant product upon which the boll weevil is dependent for completion of any portion of its life cycle;
- (5) “Cotton grower” means any person who is engaged in and has an economic risk in the business of producing, or causing to be produced, cotton for market;
- (6) “Department” means the Tennessee department of agriculture;
- (7) “Host” means any plant or plant product upon which the boll weevil is dependent for completion of any portion of its life cycle;
- (8) “Infested” means actually infested with a boll weevil, or so exposed to infestation that it would be reasonable to believe that an infestation exists;
- (9) “Permit” means a document issued or authorized by the commissioner to provide for the movement of regulated articles to restricted designations for limited handling, utilization, or processing;
- (10) “Person” means any individual, corporation, company, society, or association, or other business entity; and
- (11) “Regulated article” means any article of any character carrying or capable of carrying the boll weevil, including, but not limited to, cotton plants, seed cotton, other hosts, gin trash and mechanical cotton pickers.
§ 43-6-403. Commissioner — Duty — Cooperation with agencies, groups or persons. - The commissioner shall carry out programs to destroy and eliminate boll weevils in this state. The commissioner may cooperate with any agency of the federal government, any state, any other agency in this state, or any person engaged in growing, processing, marketing, handling cotton, or any group of such persons in this state in programs to effectuate the purposes of this part, and may enter into written agreements to effectuate those purposes. Such agreements may provide for cost sharing and for division of duties and responsibilities under this part, and may include other provisions generally to effectuate the purposes of this part.
§ 43-6-404. Commissioner — Powers. - The commissioner may enter cotton fields and other premises in order to carry out such activities, including, but not limited to, treatment with pesticides, and monitoring as may be necessary to carry out this part. The commissioner may inspect any fields or premises in this state and any property located in or on any fields or premises in this state for the purpose of determining whether the property is infested. Such inspection and other activities may be conducted at any reasonable hours falling between sunrise and sunset.
§ 43-6-405. Cotton growers — Submission of form. - Every person growing cotton in this state shall furnish to the commissioner, on forms supplied by the commissioner, such information as the commissioner may require, concerning the size and location of all commercial cotton fields and of noncommercial patches of cotton grown as ornamentals or for other purposes.
§ 43-6-406. Promulgation of rules — Quarantine. - Whenever the commissioner determines that such action is necessary, or reasonably appears necessary, to prevent or retard the spread of the boll weevil, the commissioner may promulgate rules quarantining this state, or any portion thereof, and governing the storage or other handling in the quarantined areas of regulated articles and the movement of regulated articles into or from quarantined areas. The commissioner may also promulgate rules governing the movement of regulated articles from other states or portions thereof into this state when the other state is known to be infested.
§ 43-6-407. Elimination zones — Designation — Rules — Penalties. - The commissioner may designate by rule one (1) or more areas of this state as “elimination zones” where boll weevil eradication programs will be undertaken. The commissioner may promulgate reasonable rules regarding areas where cotton cannot be planted within an elimination zone when there is reason to believe it will jeopardize the success of the program or present a hazard to public health or safety. The commissioner may issue rules prohibiting the planting of noncommercial cotton in elimination zones, and requiring that all growers of commercial cotton in the elimination zones participate in a program of boll weevil eradication, including cost sharing as prescribed in the rules. Notice of the prohibition and requirement shall be given by publication for one (1) day each week for three (3) successive weeks in a newspaper having general circulation in the affected area. The commissioner may set by rule a reasonable schedule of penalty fees to be assessed when growers in designated “elimination zones” do not meet the requirements of rules issued by the commissioner with respect to reporting of acreage and participation in cost sharing as prescribed by rule. Such penalty fee shall not exceed a charge of fifty dollars ($50.00) per acre. When a grower fails to meet the requirements of rules promulgated by the commissioner, the commissioner is authorized in elimination zones to destroy cotton not in compliance with the rules. Costs incurred by the commissioner may be assessed against the grower.
§ 43-6-408. Destruction or treatment of cotton in elimination zones. - The commissioner may destroy or, in the commissioner's discretion, treat with pesticides volunteer or other noncommercial cotton, and may establish procedures for the purchase and destruction of commercial cotton in elimination zones when the commissioner deems such action necessary to effectuate the purposes of this part. No payment shall be made by the commissioner to the owner or lessee for the destruction or injury of any cotton that was planted in an elimination zone after publication of notice as provided in this part, or was otherwise handled in violation of this part, or the rules adopted pursuant thereto. However, the commissioner shall pay for losses resulting from the destruction of cotton that was planted in such zones prior to publication of the notice.
§ 43-6-409. Elimination zones — Restricted entry and regulations. - (a) The commissioner may promulgate rules restricting entry by persons, and location of honeybee colonies in any premises in an elimination zone that have been or are to be treated with pesticides, or otherwise treated to cause the eradication of the boll weevil, or in any other area that may be affected by such treatments.
- (b)
- (1) The commissioner may also adopt such other rules and regulations as the commissioner deems necessary to further effectuate the purposes of this part.
- (2) All rules under this part shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
History (1)
- Acts 1989, ch. 350, §§ 9, 17.
§ 43-6-410. Violations — Penalties. - (a) Any person who violates any of the provisions of this part or the rules promulgated under this part, or who alters, forges or counterfeits, or uses without authority, any certificate or permit or other document provided for in this part or in the rules promulgated under this part, commits a Class A misdemeanor.
- (b) Any person who, except in compliance with the rules of the commissioner, moves any regulated article into this state from any other state that the commissioner has determined in such rules is infested, commits a Class A misdemeanor.
History (2)
- Acts 1989, ch. 350, § 10
- 1989, ch. 591, § 1.
§ 43-6-421. Cotton growers' organization — Certification. - (a) The commissioner may certify a cotton growers' organization for the purpose of entering into agreements with the state of Tennessee, other states, the federal government and other parties as may be necessary to carry out the purposes of this part.
- (b) In order to be eligible for certification by the commissioner, the cotton growers' organization must demonstrate to the satisfaction of the commissioner that:
- (1) It is a nonprofit organization and could qualify as a tax exempt organization under § 501(a) of the Internal Revenue Code of 1954 [26 U.S.C. § 501(a)];
- (2) Membership in the organization shall be open to all cotton growers in this state;
- (3) The organization shall have only one (1) class of members with each member entitled to only one (1) vote; and
- (4) The organization's board of directors shall be comprised as follows:
- (A) Four (4) Tennessee cotton growers to be appointed by the commissioner;
- (B) One (1) representative from each cotton producer organization certified as a producer organization by the National Cotton Council and eligible to name delegates to such council; and
- (C) One (1) representative of state government from this state to be appointed by the commissioner.
- (c) All books and records of account and minutes of proceedings of the organization shall be available for inspection or audit by the commissioner at any reasonable time.
- (d) Employees or agents of the growers' organization who handle funds of the organization shall be adequately bonded in an amount to be determined by the commissioner.
- (e) If the commissioner finds that the growers' organization meets the requirements set forth in subsection (b), the commissioner shall certify the organization in writing, for the purposes of this part only, and such certification shall not affect any other organization of cotton growers established for other purposes. The commissioner shall certify only one (1) such organization; provided, that the commissioner may revoke the certification of the organization if at any time the organization fails to meet the requirements of this part.
History (1)
- Acts 1989, ch. 350, § 11.
§ 43-6-422. Certified cotton growers' organization — Form — Members — Powers — Liabilities. - (a) The certified cotton growers' organization shall be:
- (1) A public corporation and may contract and be contracted with, implead and be impleaded, and complain and defend in all courts; and
- (2) Governed by a board of directors, which shall name its chair, vice chair, and secretary, and determine a quorum for the transaction of its business.
- (b) The certified cotton growers' organization may appoint advisory boards, special committees, legal counsel, and technical and clerical personnel to advise, aid, and assist the organization in the performance of its duties, and fix, if necessary, any compensation for such services.
- (c) The members, officers, and employees of the certified cotton growers' organization operating under this part shall not be held individually responsible to any grower or other person for errors in judgment, mistakes, or other acts of omission or commission, other than their own acts of dishonesty or crime. No member, officer, or employee shall be held individually responsible for any act of omission of any other member of such organization. The liability of the members of the certified cotton growers' organization shall be several and not joint, and no member shall be liable for the default of any other member.
- (d) The certified cotton growers' organization may borrow money or otherwise incur indebtedness, and may expend the moneys so acquired for the purpose of destroying and eradicating the boll weevil in Tennessee. Any indebtedness created pursuant to this subsection (d) shall be repaid from the assessments on the cotton growers provided for in § 43-6-423 or from other funds available to the cotton growers' organization, and shall not constitute a debt of the state or any department, agency, political subdivision, official, or employee of the state. Funds borrowed under this subsection (d) may be expended by the certified cotton growers' organization for the purpose of reducing the annual assessment or increasing the number of years over which cotton growers are required to pay assessments under this part.
History (1)
- Acts 1989, ch. 350, § 12.
§ 43-6-423. Assessments — Authorizing referendum — Disposition of funds. - (a) Upon the request of the certified cotton growers' organization, the commissioner shall authorize a referendum among cotton growers upon the question of whether an assessment shall be levied upon cotton growers in the state to offset, in whole or in part, the cost of boll weevil or other cotton pest suppression or eradication programs authorized by this part or by any other law of this state.
- (b) The assessment levied under this part shall be based upon the number of acres of cotton planted. The amount of the assessment, the period of time for which it is levied, and the geographical area to be covered by the assessment shall be determined by the commissioner, upon recommendation by the board of directors of the cotton growers' organization.
- (c) All affected cotton growers shall be entitled to vote in any such referendum, and the commissioner shall determine any questions of eligibility to vote.
- (d) Passage of such referendum shall require a two-thirds (⅔) majority of those eligible cotton growers voting.
- (e) The assessments collected by the department under this part, less such amounts as may be authorized in the general appropriations act for administration of this part, shall be promptly remitted to the certified cotton growers' organization under such terms and conditions as the commissioner may deem necessary to ensure that such assessments are used in a sound program of eradication or suppression of the boll weevil or other cotton pests.
- (f) There is created within the state treasury a fund known as the “certified cotton growers' organization fund.” All funds received, appropriated or otherwise coming under this part shall be deposited into the state treasury to the credit of the certified cotton growers' organization. The commissioner shall administer the fund and make payments from the fund in the same manner as other state agencies for the administration and implementation of the purposes of this part. Amounts in the fund at the end of any fiscal year shall not revert to the general fund but shall remain available to the organization for the purposes as set forth in this part. Should the eradication program be discontinued or certification of the cotton growers' organization be revoked by the commissioner, any funds remaining in its hands at that time may be paid out by the commissioner for existing obligations and for closing the affairs of the certified cotton growers' organization. Any funds remaining over and above those required for completing the business of the cotton growers' organization shall be paid by the commissioner to the contributing growers on a pro rata basis.
- (g) The commissioner, with the approval of the board of directors of the certified cotton growers' organization, may grant waivers of timely payments of assessments, when a grower can show that assessments will cause an undue financial burden or bankruptcy. Such waivers shall not exceed six (6) months in length, and shall be subject to an equitable rate of interest.
- (h) Records maintained by the commissioner on behalf of the certified cotton growers' organization shall be audited at least annually by the comptroller of the treasury or the comptroller's designated representative.
History (1)
- Acts 1989, ch. 350, § 13.
§ 43-6-424. Referendum — Management and expense. - The arrangements for, and management of, any referendum held under this part shall be under the direction of the certified cotton growers' organization. The organization shall bear all expenses incurred in conducting the referendum, to include furnishing the ballots and arranging for the necessary poll holders.
History (1)
- Acts 1989, ch. 350, § 14.
§ 43-6-425. Subsequent referenda. - (a) If any referendum conducted under this part fails to receive the required number of affirmative votes, the certified organization may, with the consent of the commissioner, call other referenda.
- (b) After the passage of any referendum, the eligible voters shall be allowed, by subsequent referenda, at least every ten (10) years, to vote on whether to continue their assessments. All of the requirements for an initial referendum shall be met in subsequent referenda.
History (2)
- Acts 1989, ch. 350, § 15
- 1995, ch. 324, § 1.
§ 43-6-426. Failure to pay assessments and penalties — Commissioner's lien — Rules. - (a) A cotton grower who fails to pay, when due and upon reasonable notice, any assessment levied under this part, shall be subject to a per acre penalty as established in the commissioner's rules, in addition to the assessment.
- (b) A cotton grower who fails to pay all assessments, including penalties, within thirty (30) days of notice of penalty, shall destroy any cotton plants growing on such cotton grower's acreage that is subject to the assessment. Any such cotton plants that are not destroyed shall be deemed to be a public nuisance, and such public nuisance may be abated in the same manner as any public nuisance. The commissioner, with the approval of the attorney general and reporter and upon the relation of the attorney general and reporter, may apply to the circuit court of the judicial district in which the public nuisance is located to have the nuisance condemned and destroyed, with all costs of destruction to be taxed against the grower. This injunctive relief shall be available to the commissioner, notwithstanding the existence of any other legal remedy, and the commissioner shall not be required to file a bond.
- (c) Whenever a cotton grower fails to pay all assessments, penalties, and costs associated with the treatment and/or destruction of a cotton crop, the commissioner may recover the amount due from the buyer of the grower's crop, equal to but not exceeding the amount the buyer paid for the crop. Notice of the commissioner's claim shall be given in writing to the grower and the buyer. The buyer shall pay the commissioner's claim before payment for the crop is made to the grower. Beginning on the date written notice is received by the buyer, the commissioner's claim shall apply to any cotton crop grown by the grower, including future crops, until the commissioner's claim is paid in full. The buyer shall be liable for making the payment to the commissioner; however, any buyer of cotton shall take free of the commissioner's claim if the buyer has not received written notice of the claim by the date the grower receives payment for the crop.
- (d) If the grower's cotton crop fails or is not sufficient to pay the commissioner's claim as provided for in subsection (c), the commissioner shall have a lien of equal dignity with other liens for moneys owed to the state against all real and personal property owned or subsequently acquired by the grower in accordance with § 67-1-1403. The commissioner shall cause a notice of a lien for payment of the claim to be recorded in the office of the appropriate county register of deeds as provided for in § 67-1-1403.
- (e) The commissioner may promulgate rules as may be necessary to file a lien to accomplish the purposes of this part.
History (2)
- Acts 1989, ch. 350, § 16
- 1999, ch. 410, §§ 1-3.
Part 5 Suppression of Black Flies § 43-6-501. Legislative intent. - The general assembly recognizes the negative impact of uncontrolled populations of simulium jenningsi and simulium fibrinflatum (“black flies”) on the economy and quality of life of a region. The general assembly also recognizes that the tourism and agricultural industries can be particularly affected by an overpopulation of black flies and that an overpopulation may be likely to spread throughout the eastern part of the state as black fly populations increase with the improvement of water quality. The general assembly believes that it is important to explore potential solutions to black fly infestation before the black fly problem becomes unmanageable and industries important to the state suffer the consequences of state inaction.
§ 43-6-502. Study of biological suppression program. - (a) The University of Tennessee shall initiate and administer a two-year black fly suppression program using a biological control agent in the Greenbrier Valley and the areas adjacent to the Pigeon River under the supervision of the department of agriculture. The university shall study the biological and socioeconomic effects of the suppression program on the region. The university shall report its findings to the department of agriculture and the department of environment and conservation. The university shall also report the results of the program to the energy, agriculture and natural resources committee of the senate and the agriculture and natural resources committee of the house of representatives.
- (b) The Tennessee wildlife resources agency is authorized to participate in the black fly suppression program in order to promote wildlife management by improving the quality of hunting and fishing conditions in the subject area.
- (c) None of the funds for the program authorized by this section shall be expended until all authorizations required by law have become final and effective, including, but not limited to, a permit required by the Water Quality Control Act of 1977, compiled in title 69, chapter 3, part 1.
History (4)
- Acts 2006, ch. 981, § 1
- 2007, ch. 563, § 1
- 2012, ch. 604, § 16
- 2013, ch. 236, § 75.
§ 43-6-503. Biological control agent. - The biological control agent used in the program shall be known to pose no significant threat to people, animals, or the environment as used by the program. The department of agriculture is authorized to suspend the program indefinitely, if the agency has reason to believe that the safety of the citizens or the integrity of the environment of the subject area is threatened.
Chapter 8 Pesticides Part 1 General Provisions § 43-8-101. Short title. - This part and part 2 of this chapter shall be known and may be cited as the “Tennessee Insecticide, Fungicide, and Rodenticide Act.”
History (3)
- Acts 1951, ch. 150, § 1 (Williams, § 6808.7)
- T.C.A. (orig. ed.), § 43-701
- Acts 1980, ch. 539, § 1.
§ 43-8-102. Part definitions. - As used in this part and part 2 of this chapter, unless the context otherwise requires:
- (1) “Active ingredient” means:
- (A) In the case of a pesticide other than a plant regulator, defoliant or desiccant, an ingredient that will prevent, destroy, repel or mitigate;
- (B) In the case of a plant regulator, an ingredient that, through physiological action, will accelerate or retard the rate of growth or rate of maturation or otherwise alter the behavior of plant growth;
- (C) In the case of a defoliant, an ingredient that will cause the leaves or foliage to drop from a plant;
- (D) In the case of a desiccant, an ingredient that will artificially accelerate the drying of plant tissue; and
- (E) In the case of a spray adjuvant, any ingredient that will act as a functioning agent;
- (2) “Adjuvant” means any substance that, when added to a pesticide, is intended to aid, modify or enhance its effectiveness by its properties of serving as a wetting agent, detergent, spreading agent, synergist, deposit builder, adhesive, surfactant, emulsifying agent, deflocculating agent, water modifier, or similar agent, with or without toxic properties of its own, and when sold in a package or container separate from that of the pesticide with which it is to be used;
- (3) “Adulterated” means a condition wherein strength or purity of a pesticide falls below the professed standard of quality as expressed on labeling under which it is sold, or if any substance has been substituted wholly or in part for the pesticide, or if any valuable constituent thereof has been wholly or in part abstracted;
- (4) “Antidote” means the most practical immediate treatment in case of poisoning and includes first aid treatment;
- (5) “Commissioner” means the commissioner of agriculture;
- (6) “Inert ingredient” means an ingredient that is not an active ingredient;
- (7) “Ingredient statement” means a statement of the name and percentage of each active ingredient, together with the total percentage of all inert ingredients in the pesticide;
- (8) “Label” means the written, printed or graphic matter on or attached to a pesticide, or the immediate container thereof and the outside container or wrapper of the retail package, if any there be, of the pesticide;
- (9) “Labeling” means all labels and other written, printed or graphic matter:
- (A) Upon the pesticide or any of its containers or wrappers;
- (B) Accompanying the pesticide at any time; or
- (C) To which reference is made on the label or literature accompanying the pesticide, except when accurate, non-misleading reference is made to current official publications of the state experiment station, the state institute of agriculture, the Tennessee department of agriculture, the department of environment and conservation, or similar federal institutions or other official agencies of this state or other states when such agencies are authorized by law to conduct research in the field of pesticides;
- (10) “Misbranded” means a condition as to a pesticide, wherein:
- (A) Its labeling bears any statement, design or graphic representation relative to the pesticide, or to its ingredients, that is false or misleading in any particular;
- (B) It is an imitation of or is offered for sale under the name of another pesticide;
- (C) Advertisement by any means is misleading in any particular;
- (D) The labeling accompanying the pesticide does not contain directions for use that are necessary and when complied with would be adequate to protect health and the environment;
- (E) The label does not bear an ingredient statement that is displayed on the outside of the immediate container and cannot be easily read as the container is presented or displayed under customary conditions of purchase;
- (F) Any word, statement or other information required by or under authority of this part and part 2 of this chapter to appear on the label or labeling is not as prominently displayed as other material on the label or labeling;
- (G) When used as directed or in accordance with commonly recognized practice, it is injurious to humans or other vertebrate animals or vegetation, except weeds, to which it is applied, or to the person applying the pesticide;
- (H) The label does not contain a warning or caution statement that may be necessary and if complied with is adequate to protect health and the environment;
- (I) The label does not bear the registration number assigned in connection with its registration;
- (J) The labeling does not contain a statement of the use classification under which the product is registered; or
- (K) In the case of a plant regulator, defoliant, or desiccant when used as directed, it is injurious to health and the environment; provided, that physical or physiological effects on plants or parts thereof shall not be deemed to be injurious when this is the purpose for which the plant regulator, defoliant, or desiccant was applied, in accordance with label claims and recommendations;
- (11) “Person” means any individual, partnership, association, corporation or organized group of persons whether incorporated or not;
- (12) “Pesticide” means any substance or mixture of substances or chemical intended for defoliating or desiccating plants or for preventing, destroying, repelling, or mitigating any insects, rodents, fungi, bacteria, weeds or other forms of plant or animal life the commissioner shall declare to be a pest. This includes, but is not limited to, insecticides, fungicides, bactericides, herbicides, desiccants, defoliants, plant regulators, adjuvants or nematocides;
- (13) “Registrant” means the person registering any pesticide pursuant to this part and part 2 of this chapter; and
- (14) “Use in a manner inconsistent with labeling” as to a pesticide means any use of a registered pesticide in a manner not permitted by its labeling, except that “use in a manner inconsistent with labeling” does not include:
- (A) Applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling;
- (B) Applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless federal requirements demand that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling;
- (C) Employing any method of application not prohibited by the labeling;
- (D) Mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited on the labeling; or
- (E) Any other use otherwise inconsistent but specifically permitted under federal law.
History (7)
- Acts 1951, ch. 150, § 2 (Williams, § 6808.8)
- 1961, ch. 12, § 1
- 1977, ch. 65, § 1
- T.C.A. (orig. ed.), § 43-702
- Acts 1980, ch. 539, § 2
- 1992, ch. 693, § 1
- 1996, ch. 805, §§ 1-3.
§ 43-8-103. Pesticides — Prohibitions as to sale or transportation. - (a) It is unlawful for any person to distribute, sell, or offer for sale within the state of Tennessee, or deliver for transportation or transport in intrastate commerce or between points within this state through any point outside this state any of the following:
- (1) Any pesticide that is not registered pursuant to § 43-8-104, or any pesticide where claims or directions for use differ in substance from the representations made in connection with its registration or if the composition of the pesticide differs from its composition as represented in connection with its registration;
- (2) Any pesticide, unless it is in the registrant's or the manufacturer's unbroken immediate container, and there is affixed to such container, and to any outside container or wrapper of the retail package where required information on the immediate container cannot be clearly read, a label bearing:
- (A) The name and address of the manufacturer, registrant or person for whom manufactured;
- (B) The name, brand or trademarks under which the article is sold; and
- (C) The net weight or measure of the contents subject, however, to such reasonable variations as the commissioner may permit;
- (3) Any pesticide that contains any substance or substances in quantities highly toxic to humans, determined as provided in § 43-8-106, unless the label bears, in addition to any other matter required by this part and part 2 of this chapter:
- (A) The skull and crossbones;
- (B) The word “poison” prominently, in red on a background of distinctly contrasting color; and
- (C) A statement of an antidote for the pesticide; or
- (4) Any pesticide that is adulterated or misbranded.
- (b) A violation of this section is a Class A misdemeanor.
History (6)
- Acts 1951, ch. 150, § 3 (Williams, § 6808.9)
- 1975, ch. 239, § 1
- T.C.A. (orig. ed.), § 43-703
- Acts 1980, ch. 539, § 3
- 1989, ch. 591, § 113
- 2004, ch. 464, § 1.
§ 43-8-104. Registration of products — Annual renewal — Labeling — Statement filed by registrant — Registration of brand or grade — License to sell registered brands — Refusal or cancellation of registration. - (a) Every pesticide that is distributed, sold or offered for sale within this state or transported within this state shall be registered with the commissioner, except as provided below. The commissioner may register and permit the sale of any pesticide that has been duly registered under the federal Insecticide, Fungicide and Rodenticide Act, but products so registered shall be subject to the registration fees provided for herein, and to all other provisions of this part and part 2 of this chapter. All pesticide products shall be registered annually and their registration shall expire on June 30, following the date of issuance.
- (b) Products having the same formula and manufactured by the same person or firm, where the labeling contains the same claims, and the labels bear a designation identifying the products as the same pesticide, may be registered as a single pesticide, with additional names and labels added by a supplemental statement during the registration term. Within the discretion of the commissioner or the commissioner's authorized representative, a change in the labeling or formulas of a pesticide may be made within the registration term without requiring a reregistration of the product; provided, that the name of the item is not changed, and that no change is made that lowers the efficacy of the product.
- (c) The registrant shall file with the commissioner a statement including:
- (1) The name and address of the registrant and the name and address of the person whose name will appear on the label, if other than the registrant;
- (2) The name of the pesticide;
- (3) A complete copy of the labeling accompanying the pesticide and a statement of all claims made and to be made for it including directions for use; and
- (4) In the case of adjuvants, surfactants, emulsifiers, wetting agents, and other materials included as adjuvants that have nonionic surfactants as the principal agent, the ingredient statement on the label must show the percentage of the active adjuvant at least by the generic chemical name and, further, that the specific chemical name identifying the hydrophobic and hydrophilic portions of the molecule and the ratio of the same must be given on a data sheet that shall accompany the label when application for registration is made, the latter being necessary in order that the chemical content may be determined by the department of agriculture, division of technical services, for regulatory purposes. In the case of products having cationic and anionic surfactants as the principal agent, the chemical names of those materials must be used in the ingredient statement on the label together with the percentage contents of the principal surfactants. In the case of products not involving hydrophobic and hydrophilic portions of the molecule such as in the case of most synergists and other nonsurfactant adjuvants, the chemical name of the material must be used in the ingredient statement on the label.
- (d) If it does not appear to the commissioner that the article is such as to warrant the proposed claims for it or if the article and its labeling and other material required to be submitted do not comply with this part and part 2 of this chapter, the commissioner shall notify the registrant of the manner in which the article, labeling, or other material required to be submitted fail to comply with this part and part 2 of this chapter so as to afford the registrant an opportunity to make the necessary corrections.
- (e) The commissioner may refuse to register or may revoke or suspend any or all registrations where the registrant is found to have violated any provision of this part and part 2 of this chapter, including rules promulgated under authority of this part and part 2 of this chapter. Any such proceedings shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (f) Registration shall not be required of a pesticide that is merely shipped from one plant or warehouse in this state to another for use as a constituent in a registered pesticide. Neither shall registration be required of a pesticide distributed under an experimental use permit issued by the federal environmental protection agency.
- (g) Registration shall be maintained for one (1) year after the effective date upon which a registrant ceases to distribute a pesticide within this state, unless the registrant can offer reasonable proof that no quantities of the pesticide remain commercially available.
- (h) Pesticide product registration fees shall be set by rule pursuant to § 43-1-703.
History (10)
- Acts 1951, ch. 150, § 5 (Williams, § 6808.11)
- 1961, ch. 12, § 2
- 1975, ch. 239, § 2
- T.C.A. (orig. ed.), § 43-706
- Acts 1980, ch. 539, § 6
- 1985, ch. 195, § 1
- 1994, ch. 960, § 7
- 1996, ch. 805, § 4
- T.C.A. § 43-8-106
- Acts 2015, ch. 485, § 6.
§ 43-8-105. Defacing or destroying label, refusing information, false guaranty, revelation of formula, noncooperation with officials prohibited. - It is unlawful:
- (1) For any person to detach, alter, deface, or destroy, in whole or in part, any label or labeling provided for in this part and part 2 of this chapter or the rules and regulations promulgated hereunder, or to add any substance to, or take any substance from, a pesticide in a manner that may defeat the purposes of this part and part 2 of this chapter;
- (2) For any manufacturer, distributor, dealer, carrier, or other person to refuse, upon written request specifying the nature or kind of pesticide to which such request relates, to furnish to or permit any person designated by the commissioner to have access to and to copy such records of business transactions as may be essential in carrying out the purposes of this part and part 2 of this chapter;
- (3) For any person to give a guaranty or undertaking provided for in § 43-8-108 that is false in any particular, except that a person who receives and relies upon a guaranty authorized under § 43-8-108 may give a guaranty to the same effect, which guaranty shall contain, in addition to such person's own name and address, the name and address of the person residing in the United States from whom such person received the guaranty or undertaking;
- (4) For any person to use for the person's own advantage or to reveal, other than to the commissioner, or officials or employees of the state of Tennessee, or officials or employees of the United States department of agriculture, or other federal agencies, or to the courts in response to a subpoena, or to physicians, and in emergencies to pharmacists and other qualified persons, for use in the preparation of antidotes, in accordance with such directions as the commissioner may prescribe, any information relative to formulas of products acquired by authority of § 43-8-104;
- (5) For any person to oppose or interfere in any way with the commissioner or the commissioner's duly authorized agents in carrying out the duties imposed by this part and part 2 of this chapter;
- (6) For any person to handle, transport, store, display or distribute pesticides in such a manner as to endanger health and the environment or to endanger food, feed, or other products that may be transported, stored, displayed or distributed with such pesticides; or
- (7) For any person to dispose of, discard or store any pesticide or pesticide containers in such a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, beneficial insects or to pollute any water supply or waterways.
History (4)
- Acts 1951, ch. 150, § 3 (Williams, § 6808.9)
- T.C.A. (orig. ed.), § 43-704
- Acts 1980, ch. 539, § 4
- T.C.A. § 43-8-104.
§ 43-8-106. Powers of commissioner. - (a) The commissioner is authorized, after opportunity for a hearing, to:
- (1) Declare any form of plant or animal life or virus that is injurious to plants, humans, domestic animals, articles or substances to be a pest;
- (2) Determine whether pesticides are highly toxic to humans; and
- (3) Determine standards of coloring or discoloring for pesticides.
- (b) The commissioner is further authorized to:
- (1) Collect and undertake laboratory analysis of pesticides to determine their compliance with the requirements of this part and part 2 of this chapter; and the commissioner has the authority at all reasonable hours to enter into any car, warehouse, store, building, boat vessel or other place where pesticides are held for distribution or sale for the purpose of inspection or sampling, to procure samples for analysis or examination from any lot, package or parcel containing a pesticide;
- (2) Publish from time to time information concerning the production, sale and use of any pesticide and make reports of the results of any analysis based on official samples of pesticides sold within the state;
- (3) Classify pesticides for general use and/or restricted use, as well as those prohibited from use by regulation; provided, that the regulations shall be consistent with the requirements of the federal Insecticide, Fungicide and Rodenticide Act and regulations as administered by the environmental protection agency; and
- (4) Review periodically the records of sales of restricted use pesticides by licensed dealers.
- (c) The commissioner is authorized to promulgate such reasonable regulations relating to the sale and distribution of pesticides as the commissioner may find necessary to carry out the full intent and meaning of this part and part 2 of this chapter.
- (d) The commissioner is authorized and empowered to cooperate with, and enter into agreements with, any other agency of this state, another state, or the federal government for the purpose of carrying out this part and part 2 of this chapter.
History (6)
- Acts 1951, ch. 150, § 6 (Williams, § 6808.12)
- 1975, ch. 239, § 3
- T.C.A. (orig. ed.), § 43-707
- Acts 1980, ch. 539, § 7
- 1988, ch. 878, § 4
- T.C.A. § 43-8-107.
§ 43-8-107. Notice given of violations — Hearing — Prosecution upon certification of facts. - (a) If it appears from the examination or evidence that this part and part 2 of this chapter or the rules and regulations issued under this part or part 2 of this chapter have been violated, the commissioner may cause notice of the violations to be given to the registrant, distributor, and possessor from whom the sample or evidence was taken. Any party so notified shall be given an opportunity to be heard under such rules and regulations as may be prescribed by the commissioner. If it appears after such hearing that there has been a sufficient number of violations of this part and part 2 of this chapter or the rules and regulations issued under this part and part 2 of this chapter, the commissioner may certify the facts to the district attorney general or the county attorney or the city attorney for the county or municipality in which the violation shall have occurred, and furnish that officer with a copy of the results of the examination of such sample duly authenticated by the state chemist or other officer making the examination. It shall be the duty of every such attorney to whom the commissioner shall report any violation of this part and part 2 of this chapter to cause proceedings to be prosecuted without delay for the fines and penalties in such cases. Any person convicted of violating any provision of this part and part 2 of this chapter or the rules and regulations issued thereunder commits a Class A misdemeanor.
- (b) Nothing in this section shall be construed as requiring the commissioner to report for the institution of proceedings under this part and part 2 of this chapter, minor violations of this part and part 2 of this chapter, whenever the commissioner believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.
History (5)
- Acts 1951, ch. 150, § 7 (Williams, § 6808.13)
- T.C.A. (orig. ed.), § 43-708
- Acts 1989, ch. 591, § 113
- T.C.A. § 43-8-108
- Acts 2004, ch. 464, § 2.
§ 43-8-108. Exemptions from penalties. - (a) The penalties provided for violations of § 43-8-103 do not apply to:
- (1) Any carrier, while lawfully engaged in transporting a pesticide within this state, if the carrier shall, upon request, permit the commissioner or the commissioner's designated agent to copy all records showing the transactions in and movements of the articles;
- (2) Public officials of this state and the federal government engaged in the performance of their official duties;
- (3) The manufacturer or shipper of a pesticide for experimental use only:
- (A) By or under the supervision of an agency of this state or of the federal government authorized by law to conduct research in the field of pesticides; or
- (B) By others if the pesticide is not sold and if the container thereof is plainly and conspicuously marked “for experimental use only — not to be sold,” together with the manufacturer's name and address; provided, that if a written permit has been obtained from the commissioner, pesticides may be sold for experimental purposes subject to such restrictions and conditions as may be set forth in the permit; or
- (4) Any person who establishes a guaranty signed by, and containing the name and address of, the registrant or person residing in the United States from whom such person purchased and received in good faith the article in the same unbroken package, to the effect that the article was lawfully registered at the time of sale and delivery to such person, and that it complies with the other requirements of this part and part 2 of this chapter, designating this part and part 2 of this chapter. In such case the guarantor shall be subject to the penalties that would otherwise attach to the person holding the guaranty under this part and part 2 of this chapter.
- (b) This part and part 2 of this chapter shall not apply to any preparation, drug, or chemical intended to be used or sold solely for medicinal use or for toilet purposes.
History (4)
- Acts 1951, ch. 150, § 8 (Williams, § 6808.14)
- T.C.A. (orig. ed.), § 43-709
- Acts 1980, ch. 539, § 9
- T.C.A., § 43-8-109.
§ 43-8-109. Injunction obtained to restrain violations. - In addition to other remedies provided in this part, the commissioner may apply to any court having chancery jurisdiction in the county where a violation occurs, for a temporary or permanent injunction restraining any person from violating any provision of this part and part 2 of this chapter or regulations promulgated pursuant to this part and part 2 of this chapter, irrespective of whether there exists an adequate remedy at law.
History (4)
- Acts 1951, ch. 150, § 4 (Williams, § 6808.10)
- T.C.A. (orig. ed.), § 43-705
- Acts 1980, ch. 539, § 8
- T.C.A. § 43-8-105.
§ 43-8-110. “Stop sale, use, or removal” orders — Issuance and enforcement. - It is the duty of the commissioner to issue and enforce a written or printed “stop sale, use, or removal” order to the owner or custodian of any lot of pesticide and to hold at a designated place when the commissioner finds the pesticide is being offered or exposed for sale in violation of any of the provisions of this chapter, until the law has been complied with and the pesticide is released in writing by the commissioner or the violation has been otherwise legally disposed of by written authority; provided, that the owner or custodian of the pesticide shall have the right to appeal from such order to a court of competent jurisdiction in the county or city where the pesticides are found, praying for a judgment as to the justification of the order, and for the discharge of the pesticide from the order prohibiting the sale in accordance with the findings of the court; and provided further, that this section shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other provisions of this part and part 2 of this chapter. The commissioner shall release the pesticide so withdrawn when the requirements of this part and part 2 of this chapter have been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.
History (3)
- Acts 1951, ch. 150, § 9 (Williams, § 6808.15)
- T.C.A. (orig. ed.), § 43-710
- Acts 1980, ch. 539, § 10.
§ 43-8-111. Seizure, condemnation and sale of pesticide for noncompliance with provisions of law. - (a) Any lot of pesticide not in compliance with this part and part 2 of this chapter shall be subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the area in which the pesticide is located. In the event the court finds the pesticide to be in violation of this part and part 2 of this chapter and orders the condemnation of the pesticide, it shall be disposed of in any manner consistent with the quality of the pesticide and the laws of the state; provided, that in no instance shall the disposition of the pesticide be ordered by the court without first giving the claimant an opportunity to apply to the court for the release of the pesticide or for permission to process or relabel the product to bring it into compliance with this part and part 2 of this chapter.
- (b) When a decree of condemnation is entered against a pesticide, court costs and fees, storage, and other proper expenses shall be awarded against the person, if any, intervening as claimant of the pesticide.
History (3)
- Acts 1951, ch. 150, § 10 (Williams, § 6808.16)
- T.C.A. (orig. ed.), § 43-711
- Acts 1980, ch. 539, § 10.
§ 43-8-113. Establishment of fees. - (a) Commercial pesticide applicator certification fee shall be set by rule pursuant to § 43-1-703.
- (b) Private pesticide applicator certification fee shall be set by rule pursuant to § 43-1-703.
- (c) Solicitor/technician card fee shall be set by rule pursuant to § 43-1-703.
- (d) Special local need (24-C) fee shall be set by rule pursuant to § 43-1-703.
History (3)
- Acts 1951, ch. 150, § 12 (Williams, § 6808.18)
- T.C.A. (orig. ed.), § 43-713
- Acts 2015, ch. 485, § 7.
§ 43-8-114. Local regulation of pesticides. - (a) Except as provided in § 43-8-115 or § 62-21-118(b), no city, town, county or other political subdivision of this state shall adopt or continue in effect any ordinance, rule, regulation or statute regarding pesticide sale or use, including, but not limited to, registration, notification of use, advertising and marketing, distribution, applicator training and certification, storage, transportation, disposal, disclosure of confidential information or product composition.
- (b) No provision of this section shall be construed to limit the authority of a city, town or county to zone for storage of such products or to provide or designate sites for disposal of such products, to regulate discharge to a sanitary sewer system or to implement an approved pesticide management plan as may be required by the Safe Drinking Water Act.
- (c) This section does not apply to any municipality having a population of not less than sixteen thousand five hundred (16,500) nor more than seventeen thousand five hundred (17,500), according to the 1990 federal census or any subsequent federal census.
History (1)
- Acts 1992, ch. 667, §§ 2, 5.
§ 43-8-115. Agreements with certain municipal or county governments to implement the enforcement provisions of this chapter. - (a) Notwithstanding this section, § 43-8-114, § 62-21-118(b), § 62-21-129 or any other law to the contrary, the commissioner shall enter into an agreement with any municipal and/or county government, within any county having a population in excess of two hundred fifty thousand (250,000), according to the 1990 federal census or any subsequent federal census, that requests authority to implement the enforcement provisions of this chapter, its equivalent or any part thereof, in its respective area of jurisdiction; provided, that each of the following conditions are met:
- (1) The local government program standards are not less stringent than those of state law and regulations;
- (2) The local government will adequately implement and enforce the program in the respective area of jurisdiction; and
- (3) Upon execution of the agreement, the local government will be the sole entity responsible for implementation and enforcement of the local government program standards adopted.
- (b) As used in subsection (a), “respective area of jurisdiction” means:
- (1) In the case of a municipal government that enters into an agreement pursuant to subsection (a), the area lying within the corporate boundaries of the municipality; and
- (2) In the case of a county government that enters into an agreement pursuant to subsection (a), the area lying within the boundaries of the county excluding that portion located within the corporate boundaries of a municipal government that has entered, or that subsequently enters, into an agreement pursuant to subsection (a).
- (c) The commissioner shall retain the right to exercise oversight and evaluation of performance of local government and may terminate the agreement if, after an administrative hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, it is found that the local program does not meet the state standards.
- (d) Local governments that enter into an agreement pursuant to subsection (a) have the authority through their local legislative bodies to enact fees to provide for the administrative, regulatory and enforcement costs of the program.
§ 43-8-116. Offense of use of pesticide in manner that causes harm. - (a) It is an offense for any person to knowingly use a pesticide in a manner inconsistent with its labeling so as to cause harm to persons, animals, property or the environment.
- (b) A violation of this section is a Class A misdemeanor punishable by fine or a term of imprisonment not to exceed thirty (30) days, or both.
- (c) This section shall be construed to be supplemental to § 43-8-306.
Part 2 Pesticide Dealers § 43-8-201. Pesticide dealers — License required. - (a) No person shall sell or offer for sale within this state pesticides classified by the commissioner as being for restricted use, unless such person is the holder of a valid pesticide dealer license. A separate license shall be obtained for each location or outlet from which business is conducted.
- (b) No person shall sell or offer for sale within this state any pesticide classified by the commissioner as being for restricted use unless the person to whom the sale is made holds a valid certificate or license issued by the department of agriculture, as required by § 62-21-115. The pesticide dealer shall require that each purchaser show evidence of such certificate or license prior to finalizing the sale.
- (c) Pesticide dealer license fee shall be set by rule pursuant to § 43-1-703.
History (5)
- Acts 1975, ch. 239, § 2
- T.C.A., § 43-706
- Acts 1980, ch. 539, § 5
- 2004, ch. 464, § 3
- 2015, ch. 485, § 5.
§ 43-8-203. Qualifications for pesticide dealer license. - Each applicant for an original license must demonstrate, upon written, or written and oral, examination to be prescribed by the commissioner, the applicant's knowledge of pesticides, their usefulness and their hazards, the applicant's competence as a pesticide dealer and the applicant's knowledge of the laws and regulations governing the use and sale of pesticides.
History (3)
- Acts 1975, ch. 239, § 2
- T.C.A., § 43-706
- Acts 1980, ch. 539, § 5.
§ 43-8-205. Pesticide dealer's employees — List of names furnished to commissioner — Dealer's responsibility for employees' actions. - (a) Every licensed pesticide dealer shall submit to the commissioner with each application for an original or renewal license, and at such other times as the commissioner may prescribe, the names of all persons employed by the pesticide dealer who sell or solicit the sale of restricted use pesticides.
- (b) Each pesticide dealer shall be responsible for the action of every person who acts as the dealer's employee or agent in the solicitation or sale of pesticides, and in all claims and recommendations for use or application of pesticides; however, it is not the intent of this section to license a pesticide applicator who sells pesticides as an integral part of such applicator's services when such applicator has complied with existing applicators' laws.
History (3)
- Acts 1975, ch. 239, § 2
- T.C.A., § 43-706
- Acts 1980, ch. 539, § 5.
§ 43-8-206. Records of restricted use pesticides. - (a) Every licensed pesticide dealer shall maintain records necessary to identify all purchasers of restricted use pesticides.
- (b) Each pesticide dealer's records shall include the name of the purchaser, the purchaser's certification number, and the name and the amount of the pesticide purchased.
Part 3 Aerial Application of Pesticides § 43-8-301. Part definitions. - As used in this part, unless the context otherwise requires:
- (1) “Adjuvant” means any substance that, when added to a pesticide, is intended to aid, modify or enhance its effectiveness by its properties of serving as a wetting agent, detergent, spreading agent, synergist, deposit builder, adhesive, surfactant, emulsifying agent, deflocculating agent, water modifier, or similar agent, with or without toxic properties of its own, and when sold in a package or container separate from that of the pesticide with which it is to be used;
- (2) “Aircraft” means any contrivance known or hereafter invented that is used or designed for navigation of or flight in the air over land or water and is designed or adaptable for use in applying pesticides in any form;
- (3) “Commercial aerial applicator” means any person who engages in the application of pesticides by aircraft;
- (4) “Commissioner” means the commissioner of agriculture, or the commissioner's authorized agent;
- (5) “Custom application of pesticides” means any application of pesticides for hire;
- (6) “Department” means the department of agriculture;
- (7) “Licensee” means any person duly licensed under this part;
- (8) “Person” means any individual, partnership, firm, corporation, company, trust, association, or other legal entity;
- (9) “Pesticide” means any substance or mixture of substances, or chemical intended for defoliating or desiccating plants, or for preventing, destroying, repelling, or mitigating any insects, rodents, fungi, bacteria, weeds, or other form of plant or animal life the commissioner declares to be a pest. This includes, but is not limited to, insecticide, fungicide, bactericide, herbicide, desiccant, defoliant, adjuvant or nematocide;
- (10) “Pilot” means any person flying an aircraft; and
- (11) “Restricted use pesticide” means a pesticide that the commissioner has so designated by regulation under the Tennessee Insecticide, Fungicide and Rodenticide Act, compiled in parts 1 and 2 of this chapter.
History (5)
- Acts 1973, ch. 90, § 1
- 1974, ch. 431, § 1
- 1975, ch. 209, § 1
- T.C.A., §§ 43-2901, 43-9-101
- Acts 1996, ch. 805, §§ 5, 6.
§ 43-8-302. Powers and duties of commissioner. - The commissioner has and shall exercise the following powers and duties:
- (1) Promulgate rules and regulations that the commissioner determines are necessary to implement and supplement this part and provide for its orderly administration;
- (2) Prescribe qualifications for applicants for licenses to engage in the custom application of pesticides and render such tests as are necessary to determine whether the applicant meets the qualifications;
- (3) Obtain the advice of members of the commercial aerial applicators industry before issuing rules, regulations, or qualifications for applicants for licenses;
- (4) Issue licenses to qualified applicants and collect the appropriate fees;
- (5) Hold hearings to determine whether or not any violation of this part or rules and regulations issued pursuant thereto has taken place, and transmit any information or material to the local district attorney general for prosecution if the commissioner determines that a violation has occurred;
- (6) Suspend or revoke any permit following a hearing as provided for in § 43-8-305;
- (7) Declare states of emergency and issue temporary permits as provided for in § 43-8-309;
- (8) Require that licensees maintain records and submit reports as necessary to show the nature and extent of their operation and any other information necessary to carry out the provisions and intent of this part;
- (9) Impose such limitations on the licenses granted to pilots, particularly with respect to compliance with the Tennessee Insecticide, Fungicide and Rodenticide Act, compiled as parts 1 and 2 of this chapter, as the commissioner may find necessary after determination of the applicant's qualifications;
- (10) Promulgate rules and regulations as required by the environmental protection agency; and
- (11) Inspect periodically the operation and conduct of licensees.
- (12) [Deleted by 2020 amendment.]
History (7)
- Acts 1973, ch. 90, § 2
- 1975, ch. 209, § 2
- 1977, ch. 210, § 1
- T.C.A., §§ 43-2902, 43-9-102
- Acts 1988, ch. 878, § 5
- 2018, ch. 798, § 1
- 2020, ch. 621, §§ 2-4.
§ 43-8-304. Licensing requirements — Insurance. - (a) Each licensee-pilot must hold a valid federal aviation administration agranaut license and prove the licensee's proficiency to the commissioner. These requirements can be supplemented by rule or regulation issued by the commissioner.
- (b) An acceptable liability insurance policy in the amount of one hundred thousand dollars ($100,000) shall be in effect, and proof of insurance shall accompany each application for license for an aircraft.
- (c) The aircraft licenses shall be prominently displayed on each aircraft and each pilot must carry the license any time the pilot is working as a pilot engaged in custom application of pesticides.
- (d) Any person applying for a license as a commercial aerial applicator shall have first obtained a certification in the category of pesticides that they intend to apply, as provided in the Tennessee Application of Pesticides Act of 1978, compiled in title 62, chapter 21, or provide sufficient evidence of an equivalent certification from a state with which the state of Tennessee has a current and official reciprocal agreement.
- (e) Any person applying for a license as a commercial aerial applicator shall take an examination administered by the department of agriculture as directed by the commissioner in order to determine if the applicant has the knowledge and technical qualifications necessary for the issuance of a license.
- (f) Aerial applicators holding a current license under Tennessee law may renew the license without examination, but the renewed license shall be subject to whatever restrictions or limitations as are indicated by the license pursuant to § 43-8-302(9).
- (g) Aerial applicator license fee shall be set by rule pursuant to § 43-1-703.
- (h) Aerial decal fees shall be set by rule pursuant to § 43-1-703.
History (5)
- Acts 1973, ch. 90, § 4
- 1974, ch. 431, § 1
- T.C.A., §§ 43-2904, 43-9-104
- Acts 2003, ch. 120, § 1
- 2015, ch. 485, § 8.
§ 43-8-305. Notice and hearing on violations — Injunctions for violations — Commissioner's subpoena power — Penalties — Petition for review. - (a) In the event the commissioner has reason to believe a licensee has violated any of the provisions of this part, including the rules and regulations promulgated under this part, the licensee shall be notified and a hearing shall be conducted in accordance with the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.
- (b) The commissioner, on determining that any person may have violated any provision of this part, may petition for injunctive relief from further violation. The petition shall be addressed to the chancery court in the county in which the offense occurred. The court, on determining that probable cause of a violation of this part exists, shall issue appropriate injunctive relief.
- (c) The commissioner has the power to subpoena any persons or records incident to the hearing and a charge of contumacy may be filed for those who refuse to comply.
- (d) Upon a finding that a violation has occurred, the commissioner may:
- (1) Issue a civil penalty not to exceed two thousand five hundred dollars ($2,500) per violation;
- (2) Permanently revoke the license;
- (3) Temporarily revoke the license;
- (4) Suspend the license for a definite period of time; or
- (5) Impose other conditions as are necessary for environmental or public safety.
- (e) The action of the commissioner may be reviewed by filing a petition for review in the chancery court of Davidson County in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. The decision of the commissioner shall remain final until modified by the commissioner or by the courts.
History (3)
- Acts 1973, ch. 90, § 5
- T.C.A., §§ 43-2905, 43-9-105
- Acts 2006, ch. 626, § 2.
§ 43-8-306. Violations — Penalties. - Operating as a commercial aerial applicator without a license, using or applying a pesticide in a manner that is not consistent with the label or label restrictions, or otherwise violating this part, including any rules or regulations, is a Class A misdemeanor.
History (5)
- Acts 1973, ch. 90, § 6
- 1977, ch. 210, § 3
- T.C.A., §§ 43-2906, 43-9-106
- Acts 1989, ch. 591, § 113
- 2003, ch. 120, § 3.
§ 43-8-307. Enjoining violations. - The commissioner, on determining that any person, firm, partnership, or corporation may have violated any provision of this part, may petition for injunctive relief from further violation. The petition shall be addressed to the chancery court in the county in which the offense occurred or in which the offender's principal place of business is located, or where the offender is doing business or resides. The chancellor, on determining that probable cause of a violation of this part exists, shall issue appropriate injunctive relief.
History (2)
- Acts 1973, ch. 90, § 7
- T.C.A., §§ 43-2907, 43-9-107.
§ 43-8-308. Exemption from law. - (a) This part does not apply to local, state, or federal government aerial operations nor where legitimate agricultural experiments are being conducted as recognized by the commissioner, nor shall this part apply where a landowner wishes to make an application of pesticides with the landowner's personally owned aircraft on the landowner's personally owned land.
- (b) The exemptions enumerated in this section do not apply to any user of pesticides that have been designated for restricted use.
History (3)
- Acts 1973, ch. 90, § 8
- 1975, ch. 209, § 3
- T.C.A., §§ 43-2908, 43-9-108.
§ 43-8-309. State of emergency — Temporary permits — Fee — Bond of nonresidents. - (a) The commissioner is authorized to declare a state of emergency if there is an epidemic or plague of such proportions to endanger public health and safety, or to threaten loss or severe damage to a crop. Under such conditions, the commissioner is authorized or empowered to permit additional commercial aerial applicators to operate within the state and shall issue temporary permits for the same. A fee of one hundred dollars ($100) shall accompany each application for a permit.
- (b) All nonresident licensees or nonresident persons issued temporary permits shall file with the department an acceptable liability insurance policy in the amount of one hundred thousand dollars ($100,000) guaranteeing an answer for damages resulting from custom application of pesticides. In addition, every nonresident licensee is required to appoint a resident service agent.
History (5)
- Acts 1973, ch. 90, § 9
- 1974, ch. 431, § 1
- 1975, ch. 209, § 4
- 1977, ch. 210, § 4
- T.C.A., §§ 43-2909, 43-9-109.
§ 43-8-310. Denial of licensing — Contesting denial. - The commissioner of agriculture may deny licensing to applicants not meeting the requirements for certification or licensing or for violations of the rules or statutes concerning the use, purchase or sale of pesticides; provided, however, that any person denied certification or licensure may contest the decision by requesting a hearing under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 43-8-311. Photographic identification. - Aerial applicators shall have in their possession a valid aerial applicators license, containing photographic identification, issued by the Tennessee department of agriculture, at all times when they are engaged in the aerial application of pesticides in the state of Tennessee.
§ 43-8-312. [Repealed]
History (3)
- Acts 2003, ch. 120, § 2
- 2018, ch. 798, § 2
- repealed by Acts 2020, ch. 621, § 1, effective March 25, 2020.
§ 43-8-313. Securing aircraft. - All aircraft licensed under this chapter shall be secured or otherwise rendered inoperable by means of a prop chain lock, gust lock, throttle restriction, or other measures acceptable to the commissioner of agriculture except when the aircraft is in use or under the direct control of an aerial applicator licensed under this chapter or under the direct responsibility of an airport operator.
§ 43-8-314. Log Records — Product Label Directions. - (a) Aerial applicators shall maintain a log record for a period of thirty-six (36) months on each application. Such record shall be made available on demand to the commissioner for review and copies shall be provided to representatives of the department of agriculture upon request. Aerial applicators located outside the boundaries of the state of Tennessee shall submit a certified copy of any log record for any or all applications as required by the commissioner within forty-eight (48) hours at a time and location designated by the commissioner.
- (b) The log record shall clearly set out the following information relative to each pesticide application:
- (1) The pesticide used and its EPA registration number;
- (2) The crop or plant to which the pesticide was applied;
- (3) The dosage rate of the application;
- (4) The approximate acreage to which the pesticide was applied;
- (5) The location, description, and GPS coordinates of the area to which the pesticide is applied;
- (6) The landowner, producer, or other person employing such aerial applicator's services;
- (7) The date of pesticide application;
- (8) The name and Tennessee license number of the aerial applicator; and
- (9) The decal number of the aircraft used for the application.
- (c) Aerial applicators shall apply all pesticides in a manner that is consistent with the label directions for that product. Aerial applicators must submit evidence to prove that label directions were followed and all restrictions were fully met when requested to do so by the commissioner.
§ 43-8-315. Recovery by the department of costs of disciplinary hearings — Payment of penalties and costs — Failure to make payment. - (a) Notwithstanding any contrary provision of law, the department shall recover, in addition to civil penalties, the actual and reasonable costs of the hearing of any disciplinary action held in accordance with the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, in which sanctions of any kind are imposed on any person or entity required to be licensed, permitted, registered or otherwise authorized or regulated by the department or its respective divisions, boards, commissions or agencies. These costs shall include, but are not limited to, those incurred and assessed for the time of the prosecuting attorneys, expert witnesses, administrative judges, court reporters and any other persons involved in the prosecution and hearing of the action.
- (b)
- (1) All civil penalties and costs assessed pursuant to this part shall be paid within thirty (30) days after the date a final order is entered.
- (2) If the individual or entity disciplined fails to pay the civil penalty or costs assessed within thirty (30) days after the date a final order is entered, the department is entitled, as a matter of law, to a judgment directing the person to pay the civil penalties and costs to the department. Jurisdiction for recovery of civil penalties and costs shall be in the chancery court of Davidson County.
Chapter 10 Agricultural Seeds Part 1 Seed Law of 1986 § 43-10-102. Legislative purpose. - The purpose of this part is to regulate the labeling, possessing, offering, exposing, transporting or distributing for sale of agricultural seeds, vegetable seeds, and screenings; to prevent misrepresentations thereof; and for other purposes.
§ 43-10-103. Part definitions. - As used in this part, unless the context otherwise requires:
- (1) “Advertisement” means all representations, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this part;
- (2) “Agricultural seeds” includes the seeds of grass, forage, cereal, and fiber crops and other kinds of seeds commonly recognized within this state as agricultural seeds, lawn seeds, and mixture of such seeds, and may include noxious-weed seeds when the commissioner determines that such seed is being used as agricultural seed;
- (3) “Association of Official Seed Certifying Agencies (AOSCA)” is an organization that is incorporated and whose members are the certifying agencies;
- (4) “Brand” means the name, term, design, or trademark under which any person offers seed for sale;
- (5) “Certifying agency” means an agency authorized to officially certify seed under the laws of a state, territory, possession, or foreign country and that has certification standards for genetic purity and identity that meet those standards established by the Association of Official Seed Certifying Agencies and referenced in its official handbook;
- (6) “Class of certified seed” means one (1) of four (4) classes of certified seeds:
- (A) Breeder;
- (B) Foundation;
- (C) Registered; and
- (D) Certified as determined under procedures established by the Association of Official Seed Certifying Agencies and referenced in its official handbook;
- (7) “Commissioner” means the commissioner of agriculture or the commissioner's designated agent or agents;
- (8) “Conditioning” means cleaning, scarifying, treating, or blending to obtain uniform quality, and other operations that would change the purity or germination of the seed and therefore require testing to determine the quality of the seed, but does not include operations such as packaging, labeling, blending together of uniform lots of the same kind or variety without cleaning, or the preparation of a mixture without cleaning, any of which would not require retesting to determine the quality of the seed;
- (9) “Date of test” means the month and year the percentage of germination appearing on the label was obtained by laboratory test;
- (10) “Germination” means the percentages by count of seeds under consideration, determined to be capable of producing normal seedlings in a given period of time and under normal conditions;
- (11) “Grower's declaration” means a written declaration of a grower stating, for each lot of seed, the kind, variety or type, the lot number, place the seed was grown, quantity of seed, date shipped or delivered, to whom sold, shipped or delivered and the signature and address of the grower issuing the declaration;
- (12) “Hard seeds” means seeds that, because of hardness or impermeability, do not absorb moisture and germinate under prescribed tests, but remain hard during the normal period for germination;
- (13) “Hybrid” means the first-generation seed of a cross produced by controlling the pollination or by use of sterile lines and combining:
- (A) Two (2) or more inbred lines;
- (B) One (1) inbred or a single cross with an open-pollinated variety; or
- (C) Two (2) varieties or species except open-pollinated varieties of corn. The second generation or subsequent generations from such crosses shall not be regarded as hybrids. For labeling purposes, recognized hybrid designations shall be treated as variety names;
- (14) “In bulk” refers to loose seed in bins, or open containers, and not to seed in bags or packets;
- (15) “Inbred line” means a relatively stable and pure breeding strain resulting from not less than four (4) successive generations of controlled self-pollination or four (4) successive generations of back-crossing in the case of male sterile lines;
- (16) “Inert matter” means all matter not seeds, and includes broken seeds, sterile florets, chaff, fungus bodies, and stones, determined by methods prescribed by rules and regulations promulgated pursuant to this part;
- (17) “Inoculant” means a commercial preparation containing nitrogen-fixing bacteria applied to seed;
- (18) “Kind” means one (1) or more related species or subspecies that singly or collectively are known by one (1) common name; for example, corn, wheat, striate lespedeza, tall fescue, or cabbage;
- (19) “Labeling” includes all labels and other written, printed or graphic representations in any form whatsoever, accompanying or pertaining to any seed whether in bulk or in containers, and includes representations of invoices;
- (20) “Lot” means a definite quantity of seed identified by a lot number or other identification, which shall be uniform within recognized tolerances for the factors that appear in the labeling;
- (21) “Mixture” means seeds consisting of more than one (1) kind or kind and variety, each present in excess of five percent (5%) of the whole;
- (22) “Noxious-weed seeds” shall be divided into two (2) classes:
- (A) “Prohibited noxious-weed seeds” are the seeds of weeds that, when established on the land, are highly destructive and are not controlled in the state by cultural practices commonly used; and
- (B) “Restricted noxious-weed seeds” are the seeds of weeds that are very objectionable in fields, lawns, and gardens in the state and are difficult to control by cultural practices commonly used;
- (23) “Origin” means the state, District of Columbia, Puerto Rico, possession of the United States or the foreign country where the seed was grown;
- (24) “Other crop seeds” means seeds of kinds or varieties of agricultural or vegetable crops other than those shown on the label as the primary kind or kind and variety;
- (25) “Person” includes any individual, partnership, corporation, company, society, association, or legal entity;
- (26) “Private hearing” consists of a discussion of facts between the person charged and the enforcement officer;
- (27) “Pure seed” means agricultural or vegetable seeds, exclusive of inert matter, weed seeds and all other seeds distinguishable from the kind or kind and variety being considered when examined according to procedures prescribed by rules and regulations promulgated pursuant to this part;
- (28) “Purity” means the name or names of the kind, type or variety and the percentage of other crop seed; the percentage of weed seeds, including noxious-weed seeds; the percentage of inert matter; and the name and rate of occurrence of each noxious-weed seed;
- (29) “Recognized variety name” and “recognized hybrid designation” mean the name or designation that was first assigned the variety or hybrid by the person who developed it or the person who first introduced it for the production or sale after legal acquisition. These terms shall be used only to designate the varieties or hybrids to which they were first assigned;
- (30) “Record” includes all information relating to the shipment or shipments involved and includes a file sample of each lot of seed;
- (31) “Screenings” includes seed, inert matter and other materials removed from agricultural or vegetable seed by cleaning or conditioning;
- (32) “Seed offered for sale” means any seed or grain whether in bags, packets, bins, or other containers, exposed in sales rooms, storerooms, warehouses, or other places where seed is sold or delivered for seeding purposes, and shall be subject to this part, unless clearly labeled “not for sale as seed”;
- (33) “Seed seller” means a person who buys, sells, offers for sale, exposes for sale, distributes, or solicits orders for the sale of agricultural or vegetable seeds for seeding purposes, and includes any person who has seed grown under contract for resale for seeding purposes;
- (34) “Seizure” means a legal process carried out by court order in which the department takes physical possession of a definite amount of seed;
- (35) “Stop sale” means an administrative order provided by law restraining the sale, use, disposition and movement of a definite amount of seed;
- (36) “Tolerance” means the allowance for sampling variation specified under rules and regulations promulgated pursuant to this part;
- (37) “Treated” means given an application of a substance or subjected to a process designed to reduce, control or repel disease organisms, insects or other pests that attack seeds or seedlings growing therefrom, or to improve the planting value of the seed;
- (38) “Ultimate consumer” means a person who purchases seed with no intention to resell the seed;
- (39) “Variety” means a subdivision of a kind that is:
- (A) Distinct, in the sense that the variety clearly differs by one (1) or more identifiable, morphological, physiological or other characteristics, which may include those evidenced by processing or product characteristics; e.g., milling and baking characteristics in the case of wheat, as to which a difference in genealogy may contribute evidence, from all prior varieties of public knowledge;
- (B) Uniform, in the sense that any variations are describable, predictable, and commercially acceptable; and
- (C) Stable, in the sense that the variety, when sexually reproduced or reconstituted, will remain unchanged with regard to its essential and distinctive characteristics with a reasonable degree of reliability commensurate with that of varieties of the same category in which the same breeding method is employed;
- (40) “Vegetable seeds” includes the seeds of those crops that are grown in gardens or truck farms and are generally known and sold under the name of vegetable seed in this state; and
- (41) “Weed seeds” means the seeds, bulblets, or tubers of all plants generally recognized as weeds within this state and includes noxious-weed seeds.
History (3)
- Acts 1986, ch. 660, § 4
- 1994, ch. 844, § 1
- 1997, ch. 94, § 1.
§ 43-10-104. Label requirements. - Each container of agricultural and vegetable seeds that is sold, offered or exposed for sale, distributed or transported within or into this state for seeding purposes shall bear thereon or have attached thereto in a conspicuous place a plainly written or printed label or tag in the English language, giving the information required under §§ 43-10-105 — 43-10-108, which information shall not be modified or denied in the labeling or on another label attached to the container.
§ 43-10-105. Label requirements — Treated seeds. - All seed named and treated as defined in this part (for which a separate label may be used) shall be labeled to show the following information:
- (1) A word or statement indicating that the seed has been treated;
- (2) The commonly accepted coined, chemical or abbreviated chemical (generic) name of the applied substance or description of the process used;
- (3) If the substance in the amount present with the seed is harmful to human or other vertebrate animals, a caution statement such as “Do not use for food, feed, or oil purposes.” The caution for mercurials and similarly toxic substances shall be a poison statement or symbol; and
- (4) If the seed is treated with an inoculant, the date beyond which the inoculant is not to be considered effective (date of expiration).
§ 43-10-106. Label requirements — Agricultural seeds. - Agricultural seeds sold, distributed, offered or exposed for sale, or transported for sale within or into this state shall be labeled to show the following information:
- (1) The commonly accepted name of the kind and the variety, or kind and the phrase “variety not stated” for each agricultural seed present in excess of five percent (5%) of the whole and the percentage by weight of each in order of its predominance. When more than one (1) component is required to be named, the word “mixture” or the word “mixed” shall be shown conspicuously on the label. Hybrids shall be labeled as hybrids;
- (2) Lot number or other lot identifications;
- (3) Net weight;
- (4) Origin, if known. If the origin is unknown, the fact shall be stated;
- (5) Percentage by weight of inert matter;
- (6) Percentage by weight of agricultural seeds and/or vegetable seeds, which shall be designated as “other crop seeds,” other than those named on the label. Different varieties of the same kind of seed when in quantities of less than five percent (5%) will be considered as other crop seeds;
- (7) Percentage by weight of all weed seeds, including noxious-weed seeds;
- (8) For each named agricultural seed:
- (A) Percentage of germination, exclusive of hard seed;
- (B) Percentage of hard seed, if present;
- (C) The calendar month and year the test was completed to determine such percentages;
- (D) In addition to the individual percentage statement of germination and hard seed, the total percentage of germination and hard seed may be stated as such, if desired;
- (9) The name and number per pound of each kind of restricted noxious-weed seed present; and
- (10) The name and address of the person who labeled the seed, or who sells, offers or exposes the seed for sale within this state.
§ 43-10-107. Label requirements — Vegetable seeds in containers of one pound or less. - Labels for vegetable seeds in containers of one (1) pound or less, including vegetable seeds in preplanted containers, mats, tapes, or other planting devices, shall show the following information:
- (1) Name of kind and variety of seed. Hybrids shall be labeled as hybrids;
- (2) Lot number or other lot identification;
- (3)
- (A) Percentage germination and calendar month and year the test was completed, or year for which packed; provided, that the words “Packed for” precedes the year. However, no seed are to be offered or exposed for sale at retail outlets before the year for which packed;
- (B) Any seed offered or exposed for sale after the year for which packed, unless in hermetically sealed containers, must show a current germination test as required in § 43-10-109(1)(B). The person in possession of such seed will be responsible for securing a new germination test;
- (4) Name and address of the person who labeled the seed or who sells, offers, or exposes the seed for sale within this state;
- (5) For seeds that germinate less than the standards last established by the commissioner under this part:
- (A) The percentage of germination, exclusive of hard seed;
- (B) The percentage of hard seed, if present;
- (C) The calendar month and year the test was completed to determine such percentage;
- (D) In addition to the individual percentage statement of germination and hard seed, the total percentage of germination and hard seed may be stated, if desired; and
- (E) The words “Below Standard” in not less than eight (8) point type; and
- (6) For seeds in a germination medium, mat, tape, or other device in such a way as to make it difficult to determine the quantity of seed without removing the seeds from the medium, mat, tape, or device, a statement to indicate the minimum number of seeds in the container.
§ 43-10-108. Label requirements — Vegetable seeds in containers of more than one pound. - Vegetable seeds in containers of more than one (1) pound shall be labeled to show the following information:
- (1) The name of each kind and variety present in excess of five percent (5%) and the percentage by weight of each in order of its predominance. Hybrids shall be labeled as hybrids;
- (2) Lot number or other lot identification:
- (A) The percentage of germination, exclusive of hard seed;
- (B) The percentage of hard seed, if present;
- (C) The calendar month and year the test was completed to determine such percentages;
- (D) In addition to the individual percentage statement of germination and hard seed, the total percentage of germination and hard seed may be stated as such, if desired;
- (E) Net weight, except when in bulk; and
- (F) The name and address of the person who sells, offers or exposes the seed for sale within this state; and
- (3) No tag or label shall be required, unless requested, on seeds sold directly to and in the presence of the purchaser and taken from a bag or container properly labeled.
§ 43-10-109. Prohibitions. - It is unlawful for any person to:
- (1) Transport, offer for transportation, sell, distribute, offer or expose for sale within this state agricultural seed or vegetable seeds for seeding purposes:
- (A) Unless a seed license has been obtained in accordance with this part;
- (B) Unless the test to determine the percentage of germination required by §§ 43-10-106 — 43-10-108 has been completed within a nine-month period, exclusive of the calendar month in which the test was completed immediately prior to sale, exposure for sale, or offering for sale or transportation;
- (C) Not labeled in accordance with this part or having a false or misleading labeling or claim;
- (D) Pertaining to which there has been a false or misleading advertisement;
- (E) Consisting of or containing prohibited noxious-weed seeds (tolerance not permitted);
- (F) Containing restricted noxious-weed seeds, except as prescribed by rules and regulations promulgated under this part;
- (G) Containing weed seeds in excess of two percent (2%) by weight unless otherwise provided in rules and regulations promulgated under this part;
- (H) That have been treated and not labeled as required;
- (I) To which there are affixed names or terms that create a misleading impression as to the kind, kind and variety, history, productivity, quality or origin of the seeds;
- (J) Represented to be certified, registered, or foundation seed, unless it has been produced, processed and labeled in accordance with the procedures and in compliance with rules and regulations of an official seed certifying agency;
- (K) Represented to be hybrid, unless such seed conforms to the definition of a “hybrid” as defined in this part;
- (L) Unless it conforms to the definition of a “lot”; or
- (M) By variety name seed not certified by an official seed certifying agency when it is a variety for which a certificate of plant variety protection under the Plant Variety Protection Act specifies sale only as a class of certified seed; provided, that seed from a certified lot may be labeled as to variety name when used in a mixture by, or with the approval of, the owner of the variety;
- (2) Advertise by variety name or make any representations to a particular variety, when the variety is protected by the Plant Variety Protection Act for sale only as a class of certified seed, if it has not been certified by an official seed certification agency, except as provided in subdivision (1)(M);
- (3) Transport, offer for transportation, sell, distribute, offer or expose for sale seeds, whole grain, and screenings not for seeding purposes unless labeled “not for seeding purposes”;
- (4) Detach, alter, deface, or destroy any label provided for in this part or the rules and regulations promulgated under this part, or to alter or substitute seed in any manner that defeats the purpose of this part;
- (5) Disseminate false or misleading advertisement in any manner concerning agricultural seeds, vegetable seeds or screenings;
- (6) Hinder or obstruct in any manner an authorized agent of the commissioner in the performance of such agent's lawful duties;
- (7) Fail to comply with or to supply inaccurate information in reply to a stop-sale order, or remove tags attached to, or move or dispose of, seed or screenings held under stop-sale order, except as specified by the enforcement officer;
- (8) Use the name of the department of agriculture or the results of tests and inspections made by the department for advertising purposes;
- (9) Sell, offer or expose for sale, or give away the seeds or plants of Johnson grass or seed indistinguishable from Johnson grass seed, such as Sorghum alum;
- (10) Use the words “type” or “trace” in lieu of information required by § 43-10-105 through this section;
- (11) Label and offer for sale seed under the scope of this part without keeping complete records as specified in § 43-10-111; or
- (12) Sell, distribute, offer or expose for sale tobacco seed for seeding purposes unless the seed has been certified by an official seed certifying agency.
History (4)
- Acts 1986, ch. 660, § 10
- 1993, ch. 269, § 1
- 1994, ch. 844, § 2
- 1997, ch. 94, § 2.
§ 43-10-110. Exemptions. - (a) Sections 43-10-104 — 43-10-108 do not apply:
- (1) To seed or grain sold or represented to be sold for purposes other than for seeding; provided, that the seed is labeled “not for seeding purposes” and that the seed seller shall make it unmistakably clear to the purchaser of such seed or grain that it is not for seeding purposes;
- (2) To seed for conditioning when consigned to being transported to or stored in a conditioning establishment; provided, that the invoice or labeling accompanying the seed bears the statement “Seed for conditioning”; and provided further, that other labeling or representation that may be made with respect to the uncleaned or unconditioned seed shall be subject to this part;
- (3) When grown, sold, and delivered by the producer on the producer's own premises, to the purchaser personally for seeding purposes. If, however, the seed is advertised for sale through any public medium or if the seed is delivered by a common carrier, except transported for the purposes of being recleaned as hereinafter provided, the seed must be labeled in accordance with this part; and
- (4) To any carrier in respect to any seed or screenings transported or delivered for transportation in the ordinary course of its business as a carrier; provided, that such carrier is not engaged in producing, conditioning, or marketing agricultural or vegetable seeds or screenings subject to this part.
- (b) No person shall be subject to the penalties of this part for having sold, offered or exposed for sale in this state any agricultural or vegetable seeds that were incorrectly labeled or represented as to origin, kind, or variety when such seeds cannot be identified by examination, unless such person has failed to obtain an invoice or genuine grower's declaration giving origin, kind, and variety or to take such other precautions as may be necessary to ensure the identity to be that stated.
History (1)
- Acts 1986, ch. 660, § 11.
§ 43-10-111. Records. - Each person whose name appears on the label as handling agricultural or vegetable seeds subject to this part shall keep for a period of two (2) years complete records of each lot of such seed handled, and shall keep for one (1) year a file sample of each lot of seed after final disposition of the lot. All such records and samples pertaining to the shipment or shipments involved shall be accessible for inspection by the commissioner or the commissioner's agent during customary business hours.
History (1)
- Acts 1986, ch. 660, § 12.
§ 43-10-112. Disclaimers, nonwarranties, and limited warranties. - A disclaimer, nonwarranty, or limited warranty used in any invoice, advertising, labeling, or written, printed or graphic matter pertaining to any seed shall not directly or indirectly deny or modify any information required by this part or the rules and regulations promulgated under this part.
History (1)
- Acts 1986, ch. 660, § 13.
§ 43-10-113. Tolerances to be established and used in enforcement. - Due to variations that may occur between the analysis or tests and likewise between label statements and the results of subsequent analyses and tests, tolerances that are to be established by appropriate rules and regulations promulgated under the authority of this part shall be employed in the enforcement of this part.
History (1)
- Acts 1986, ch. 660, § 14.
§ 43-10-114. Duties and authority of commissioner. - (a) Except as otherwise specifically provided by the Tennessee Drug Control Act of 1989, compiled in title 39, chapter 17, part 4, and title 53, chapter 11, parts 3 and 4, or any other state statute that authorizes or requires a person other than the commissioner to exercise jurisdiction and authority over matters related to the regulation of seed, the commissioner has exclusive jurisdiction and authority over all matters related to the regulation of seed. The duty of enforcing this part and its rules and regulations and carrying out its provisions and requirements shall be vested in the commissioner. It is the duty of the commissioner, who may act through authorized agents to:
- (1) Sample, inspect, analyze, and test agricultural and vegetable seed held in storage, transported, distributed, sold, offered or exposed for sale within this state for seeding purposes at such time and place and to such extent as the commissioner may deem necessary to determine whether such seeds are in compliance with this part, and notify promptly the person who transported, distributed, possessed, sold, offered or exposed the seed for sale of any violation;
- (2) After conferring with interested industry representatives, prescribe, amend and adopt rules and regulations governing the method of sampling, inspection, analyzing, testing and examining agricultural and vegetable seed, and the tolerances to be followed in the administration of this part, which shall be in general accord with officially prescribed practices in interstate commerce;
- (3) Adopt a list of prohibited and restricted noxious weeds, conforming with the definitions stated in this part, and add or subtract from the list, from time to time, after a public hearing following due public notice;
- (4) Promulgate rules and regulations to provide such additional definitions of terms as the commissioner believes are needed; prescribe minimum standards of germination and purity and maximum number per pound allowed for each restricted noxious weed; and
- (5) Prescribe such other rules as may be necessary to secure the efficient enforcement of this part and to maintain a comprehensive scheme for regulating seed that shall be uniform and applicable throughout the state.
- (b) Further, for the purpose of carrying out this part, the commissioner, individually or through authorized agents, is authorized to:
- (1) Enter upon any public or private premises during business hours in order to have access to seeds and the records connected with seeds subject to this part and rules and regulations under this part, and any truck or other conveyor by land, water, or air at any time when such conveyor is accessible, for the same purpose;
- (2) Issue and enforce a written or printed “stop sale” order to the owner or custodian of any lot of agricultural or vegetable seeds that the commissioner or the commissioner's authorized agent finds is in violation of any of the provisions of this part or rules and regulations promulgated under this part, which order shall prohibit further sale, conditioning and movement of such seed until the enforcing officer has evidence that there has been compliance with the law, and has issued a release from the “stop sale” order of such seed; provided, that in respect to seed that has been denied sale, conditioning and movement as provided in this subdivision (b)(2), the owner or custodian of such seed shall have the right to appeal from the order to a court of competent jurisdiction in the locality in which the seeds are found, praying for a judgment as to the justification of the order and for the discharge of the seeds from the order prohibiting the sale, conditioning and movement in accordance with the findings of the court; and provided further, that this subdivision (b)(2) shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other sections of this part;
- (3) Establish and maintain or make provisions for seed testing facilities, employ qualified persons, and incur such expenses as may be necessary to comply with these provisions;
- (4) Publish the results of analyses, tests, examinations, studies, and investigations made as authorized by this part, together with any other information the commissioner may deem advisable; and
- (5) Cooperate with the United States department of agriculture in seed law enforcement.
- (c) Except as otherwise specifically provided by the Tennessee Drug Control Act of 1989, or any other state statute that authorizes or requires a person other than the commissioner to prohibit the planting, cultivation, harvesting, handling, or movement of agricultural seeds, the commissioner shall have the sole authority to prohibit the planting, cultivation, harvesting, handling, or movement of agricultural seeds.
History (2)
- Acts 1986, ch. 660, § 15
- 2016, ch. 643, §§ 1-3.
§ 43-10-115. Seizure. - Any lot of agricultural or vegetable seeds, mixtures of such seeds, or screenings being sold, exposed for sale, offered for sale or held with intent to sell in this state contrary to this part shall be subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the locality in which the seeds, mixtures of such seeds, or screenings are located. In the event the court finds the seed to be in violation of this part and orders the condemnation thereof, the seeds, mixtures of such seeds, or screenings shall be denatured, conditioned, destroyed, relabeled, or otherwise disposed of in compliance with the laws of this state; provided, that in no instance shall such disposition of the seeds, mixtures of the seeds, or screenings be ordered by the court without first having given the claimant an opportunity to apply to the court for the release of the seeds, mixtures of the seeds, or screenings, or permission to condition or relabel to bring them into compliance with this part.
History (1)
- Acts 1986, ch. 660, § 16.
§ 43-10-116. Violations, hearings, prosecutions, or warnings. - (a) Any person who knowingly, or as a result either of gross negligence or of a failure to make a reasonable effort to be informed of the pertinent facts, violates any provision of this part, or the rules and regulations made and promulgated thereunder, commits a Class C misdemeanor. However, no prosecution under this part shall be instituted without the person first having been given an opportunity to appear before the commissioner or the commissioner's duly authorized agent, to introduce evidence either in person or by agent or attorney at a private hearing.
- (b) If, after the hearing, or without a hearing in the event the person or the person's agent or attorney fails or refuses to appear, the commissioner is of the opinion that the evidence warrants prosecution, the commissioner shall proceed according to legal procedures in the state, or, if the commissioner believes the public interest will be adequately served by a written notice or warning, the commissioner may direct to the alleged violator a suitable written notice or warning.
- (c) After judgment by the court in any case arising under this part, the commissioner shall publish any information pertinent to the issuance of the judgment by the court in such media as the commissioner may designate from time to time.
History (2)
- Acts 1986, ch. 660, § 17
- 1989, ch. 591, § 113.
§ 43-10-117. Injunction. - When, in the performance of official duties, the commissioner applies to any court for a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this part or any rules and regulations under this part, the injunction is to be issued without bond.
History (1)
- Acts 1986, ch. 660, § 18.
§ 43-10-118. License fees. - Each seed seller who sells, offers for sale, exposes for sale, distributes, or solicits orders for the sale of any agricultural or vegetable seeds to farmers, retailers, wholesalers, or any others who use or plant agricultural or vegetable seeds in the state shall obtain a license from the commissioner annually on or before July 1 of each calendar year. Seed sellers shall obtain an application form and pay the appropriate fee set by rule pursuant to § 43-1-703.
History (3)
- Acts 1986, ch. 660, § 19
- 1997, ch. 94, § 3
- 2015, ch. 485, § 9.
§ 43-10-119. [Repealed]
History (2)
- Acts 1986, ch. 660, § 20
- repealed by Acts 2015, ch. 485, § 10, effective July 1, 2015.
Part 2 Seed Certification § 43-10-201. State seed certifying agency. - The commissioner of agriculture, the vice president of the University of Tennessee institute of agriculture, the dean of the University of Tennessee agriculture experiment station and the dean of the University of Tennessee extension service are vested with full authority to designate a crop improvement association as the official state seed certifying agency. The association shall be a member of the Association of Official Seed Certifying Agencies. These officials are further authorized, if satisfied that the association acting as official state seed certifying agency has not performed its duties in the best interests of Tennessee agriculture, to terminate the appointment of the association as the official state seed certifying agency.
§ 43-10-204. Applicability of provisions. - Any person, association, firm or corporation who issues, uses or circulates any advertisement, tag, seal, poster, letterhead or marketing circular containing any written or printed representation or description that such seeds offered for sale or use are “Tennessee Certified,” “Tennessee State Certified,” “State Certified,” or the equivalent utilizing words or symbols to imply conformity with the standards established by the state seed certifying agency, shall be subject to this part. This part does not apply, however, to the plant and plant product certification procedures concerning freedom from disease and insect infestation, as currently conducted by the plant industries division of the department of agriculture. Any issuance, use or circulation of any certificate or instrument, as defined in this part, shall be deemed “certification” for the purposes of this part.
§ 43-10-205. Rules and regulations — Compliance with standards and procedures — Valid certifications. - (a) The state seed certifying agency shall promulgate rules and regulations for the certification of seeds, plants or plant parts intended for growth, harvest, sale or distribution in Tennessee, with the exception of nursery crops, greenhouse crops, vegetable crops, strawberries and sweet potatoes.
- (b) All seeds, plants, or plant parts intended for growth, harvest, sale or distribution in Tennessee, with the exception of nursery crops, greenhouse crops, vegetable crops, strawberries and sweet potatoes, shall comply with the standards and procedures established by the state seed certifying agency in order to be eligible for certification.
- (c) No certification is valid unless issued by the state seed certifying agency established in this part.
History (2)
- Acts 1985, ch. 329, § 1
- 1995, ch. 291, § 5.
§ 43-10-206. Violations — Penalties. - It is unlawful for any person, firm, association or corporation to issue, make, use or circulate any certification as provided for in this part, without authority from and the approval of the state seed certifying agency. Any person, firm, association or corporation who violates any provision of this part commits a Class A misdemeanor for each separate offense, and shall further be denied any right to apply for subsequent certification for such a period as the court sees fit but not to exceed one (1) year.
History (2)
- Acts 1985, ch. 329, § 1
- 1989, ch. 591, §§ 1, 6.
Chapter 11 Fertilizers and Liming Materials Part 1 Commercial Fertilizers § 43-11-101. Short title. - This part shall be known and may be cited as the “Tennessee Commercial Fertilizer Law of 1969.”
History (2)
- Acts 1969, ch. 102, § 1
- T.C.A., § 43-1121.
§ 43-11-103. Part definitions. - As used in this part, unless the context otherwise requires:
- (1) “Brand” means a term, design, or trademark used in connection with one (1) or several grades of commercial fertilizer;
- (2) “Bulk fertilizers” means commercial fertilizer distributed in a nonpackaged form;
- (3) “Commercial fertilizer” means any substance containing one (1) or more recognized plant nutrients that is used for its plant nutrient content and that is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, wood ashes and gypsum;
- (4) “Commissioner” means the commissioner of agriculture;
- (5) “Deficiency” means the amount of nutrient found by analysis less than that guaranteed that may result from a lack of nutrient ingredients or from a lack of uniformity;
- (6) “Distributor” means any person who imports, consigns, manufactures, produces, compounds, mixes, or blends commercial fertilizer, or who offers for sale, sells, barters, or otherwise supplies commercial fertilizer in this state;
- (7) “Fertilizer material” is a fertilizer that either:
- (A) Contains important quantities of no more than one (1) of the primary plant nutrients (nitrogen, phosphoric acid and potash);
- (B) Has approximately eighty-five percent (85%) of its plant nutrient content present in the form of a single chemical compound; or
- (C) Is derived from a plant or animal residue or by-product or a natural material deposit that has been processed in such a way that its content of primary plant nutrients has not been materially changed except by purification and concentration;
- (8) “Grade” means the percentages of total nitrogen, available phosphorus or phosphoric acid, and soluble potassium or soluble potash stated in whole numbers in the same terms, order and percentages as in the “guaranteed analysis”;
- (9) “Guaranteed analysis”:
- (A) Until the commissioner prescribes the alternative form of “guaranteed analysis” in accordance with the provisions of subdivision (9)(B), “guaranteed analysis” means the minimum percentage of plant nutrients claimed in the following order and form:
- (i)
- Total Nitrogen (N) percent
- Available Phosphoric Acid (P205) percent
- Soluble Potash (K20) percent
- (ii) For unacidulated mineral phosphatic materials and basis slag, both total and available phosphoric acid and the degree of fineness. For bone, tankage, and other organic phosphatic materials, total phosphoric acid;
- (iii) Guarantees for plant nutrients other than nitrogen, phosphorus and potassium may be permitted or required by regulation of the commissioner. The guarantees for plant nutrients other than nitrogen, phosphorus and potassium shall be expressed in the form of the element. The sources of such other nutrients (oxides, salt, chelates, etc.) may be required to be stated on the application for registration and may be included as a parenthetical statement on the label. Other beneficial substances or compounds, determinable by laboratory methods, also may be guaranteed by permission of the commissioner and with the advice of the director of the agricultural experiment station. When any plant nutrients or other substances or compounds are guaranteed, they shall be subject to inspection and analysis in accordance with the methods and regulations prescribed by the commissioner; and
- (iv) Potential basicity or acidity expressed in terms of calcium carbonate equivalent in multiples of one hundred pounds (100 lbs.) per ton, when required by regulation; and
- (B) When the commissioner finds, after public hearing following due notice, that the requirement for expressing the guaranteed analysis of phosphorus and potassium in elemental form would not impose an economic hardship on distributors and users of fertilizer by reason of conflicting labeling requirements among the states, the commissioner may require by regulation thereafter that the “guaranteed analysis” shall be in the following form:
- Total Nitrogen (N) percent
- Available Phosphorus (P) percent
- Soluble Potassium (K) percent
- provided, that the effective date of the regulation shall not be less than six (6) months following the issuance of the regulation; and provided further, that for a period of two (2) years following the effective date of the regulation, the equivalent of phosphorus and potassium may also be shown in the form of phosphoric acid and potash. After the effective date of a regulation issued under this subdivision (9)(B), requiring that phosphorus and potassium be shown in the elemental form, the guaranteed analysis for nitrogen, phosphorus, and potassium shall constitute the grade;
- (10) “Investigational allowance” means an allowance for variations inherent in the taking, preparation, and analysis of an official sample;
- (11) “Label” means the display of all written, printed, or graphic matter upon the immediate container, or a statement accompanying a fertilizer;
- (12) “Labeling” means all written, printed, or graphic matter upon or accompanying any fertilizer, or advertisements, brochures, posters, television, and radio announcements used in promoting the sale of such fertilizer;
- (13) “Local legislation” means, but is not limited to, any ordinance, motion, resolution, amendment, regulation or rule adopted by a political subdivision;
- (14) “Mixed fertilizer” is a commercial fertilizer containing any combination or mixtures of fertilizer materials designed for use or claimed to have value in promoting plant growth;
- (15) “Official sample” means any sample of commercial fertilizer taken by the commissioner or the commissioner's agent and designated as “official” by the commissioner;
- (16) “Overall index value” means the value of a fertilizer as determined by comparing the value guaranteed with the value found, using as a basis for value the commercial value of a nutrient or ingredient per § 43-11-110;
- (17) “Percent” or “percentage” means the percentage by weight;
- (18) “Person” includes an individual, partnership, association, firm, and corporation;
- (19) “Political subdivision” means any local government entity and includes, but is not limited to, any city, county or municipal government and any other body corporate and politic that is responsible for government activities in a geographic area smaller than the state;
- (20) “Registrant” means the person who registers commercial fertilizer under this part;
- (21) “Soil conditioner or soil amendment” means any substance that is intended to improve the physical characteristics of the soil, except agricultural liming materials, unmanipulated animal manures, unmanipulated vegetable manures, pesticides, and other materials exempted by regulation;
- (22) “Specialty fertilizer” means a commercial fertilizer distributed primarily for nonfarm use, such as home gardens, lawns, shrubbery, flowers, golf courses, municipal parks, cemeteries, greenhouses and nurseries;
- (23) “Ton” means a net weight of two thousand pounds (2,000 lbs.) avoirdupois; and
- (24) “Unmanipulated manure” means any substance composed of the excreta of domestic animals or domestic fowls that has not been processed in any manner, including drying, grinding, shredding, addition of plant food, mixing artificially with any material or materials other than those that have been used for bedding, sanitary, or feeding purposes for the animals or fowls, or any other means.
History (5)
- Acts 1969, ch. 102, § 3
- T.C.A., § 43-1123
- Acts 1986, ch. 659, §§ 1, 2
- 1988, ch. 544, §§ 1, 2
- 2008, ch. 1040, § 1.
§ 43-11-104. Annual licence fee. - Every person who distributes commercial fertilizer in this state shall pay an annual license fee set by rule pursuant to § 43-1-703.
History (4)
- Acts 1969, ch. 102, § 4
- T.C.A., § 43-1124
- Acts 1988, ch. 544, § 3
- 2015, ch. 485, § 11.
§ 43-11-105. Labeling. - (a) Any commercial fertilizer distributed in this state in containers shall have placed on or affixed to the container a label setting forth in clearly legible and conspicuous form the information required by § 43-11-104(a)(1)-(4).
- (b) If distributed in bulk, a written or printed statement of the information required by § 43-11-104(a)(1)-(4) shall accompany delivery and be supplied to the purchaser at time of delivery.
- (c) A commercial fertilizer formulated according to specifications that are furnished by a consumer prior to mixing shall be labeled to show the net weight, guaranteed analysis, and the name and address of the distributor or the registrant, together with the name and address of the consumer.
History (3)
- Acts 1969, ch. 102, § 5
- T.C.A., § 43-1125
- Acts 1986, ch. 659, § 3.
§ 43-11-106. [Repealed]
History (5)
- Acts 1969, ch. 102, § 6
- 1972, ch. 628, § 1
- T.C.A., § 43-1126
- Acts 1986, ch. 659, §§ 4, 5
- repealed by Acts 2015, ch. 485, § 12, effective July 1, 2015.
§ 43-11-107. [Repealed]
History (4)
- Acts 1969, ch. 102, § 7
- T.C.A., § 43-1127
- Acts 1986, ch. 659, § 6
- repealed by Acts 2015, ch. 485, § 13, effective July 1, 2015.
§ 43-11-108. Inspection, sampling, analysis. - (a) It is the duty of the commissioner or the commissioner's agent to sample, inspect, make analysis of, and test commercial fertilizer distributed within this state, and the commissioner or agent is authorized to enter upon any public or private premises or carriers at a time and place and to such extent as the commissioner or agent may deem necessary to determine whether their commercial fertilizers are in compliance with this part.
- (b) The methods of analysis and sampling shall be those adopted by the official from sources such as the Association of Official Analytical Chemists Journal.
- (c) The commissioner, in determining for administrative purposes whether any commercial fertilizer is deficient in plant food, shall be guided solely by the official sample as defined in § 43-11-103, and obtained and analyzed as provided for in subsection (b).
- (d) The results of official analysis of any commercial fertilizer that has been found to be subject to penalty or other legal action shall be forwarded by the commissioner to the registrant at least ten (10) days before the report is submitted to the purchaser. If during that period no adequate evidence to the contrary is made available to the commissioner, the report shall become official. Upon request, the commissioner shall furnish to the registrant a portion of any sample found subject to penalty or other legal action.
History (3)
- Acts 1969, ch. 102, § 8
- T.C.A., § 43-1128
- Acts 1986, ch. 659, § 7.
§ 43-11-109. Fertilizer deficiency — Penalties. - (a) If the analysis shall show that any commercial fertilizer falls short of the guaranteed analysis, penalties shall be assessed by the commissioner as follows:
- (1) When a deficiency in the analysis of any one (1) primary ingredient (nitrogen, phosphorus or potash) is greater than two (2) times the investigational allowance for that ingredient, penalties will be assessed in the amount of three (3) times the commercial value of the deficiency;
- (2) When a deficiency in the analysis of any one (1) primary ingredient is two (2) or less times the investigational allowance for that ingredient, an overall index value will be calculated. When the overall index value is less than ninety-seven percent (97%), the penalty assessed shall be three (3) times the difference between the found commercial value and the guaranteed commercial value of the primary nutrients;
- (3) When an analysis of any one (1) primary ingredient results in both a deficiency greater than two (2) times the investigation allowances and an overall index value of less than ninety-seven percent (97%), the greater of the two (2) penalties will be assessed. In no instance will the penalty assessed be greater than the retail value of the lot of fertilizer; and
- (4) When an analysis of any one (1) secondary nutrient (minor elements) is deemed deficient by exceeding the allowable deficiencies established by regulation, penalties assessed will be in the amount of three (3) times the commercial value of the deficiency.
- (b) When assessing penalties for fertilizer found to be deficient, tolerances and investigational allowances established by the Association of American Plant Food Control Officials and published in the annual official publication shall be recognized.
- (c) Deficiency in any other constituent or constituents covered under § 43-11-103(9)(A)(i), (ii) and (iii) that the registrant is required to or may guarantee shall be evaluated by the commissioner and penalties therefor shall be prescribed by the commissioner.
- (d) Nothing contained in this section shall prevent any person from appealing to a court of competent jurisdiction for judgment as to the justification of penalties.
- (e) All penalties assessed under this section shall be paid to the consumer of the lot of commercial fertilizer represented by the sample analyzed within two (2) months after the date of notice from the commissioner to the registrant, receipts taken therefor and promptly forwarded to the commissioner. If these consumers cannot be found, the amount of the penalty shall be paid to the department of agriculture, and shall be used only for the enforcement of this part. If, upon satisfactory evidence, a distributor is shown to have altered the content of a fertilizer shipped to such distributor by a registrant, or to have mixed or commingled fertilizer from two (2) or more supplies such that the result of either alteration changes the analysis of the fertilizer as originally guaranteed, then that distributor shall become responsible for obtaining a registration and shall be held liable for all penalty payments and be subject to other provisions of this part, including seizure, condemnation and stop sale.
- (f) A deficiency in an official sample of mixed fertilizer resulting from nonuniformity shall be handled in the same manner as a deficiency due to actual plant nutrient shortage.
History (5)
- Acts 1969, ch. 102, § 9
- 1977, ch. 166, § 1
- T.C.A., § 43-1129
- Acts 1986, ch. 659, § 8
- 1988, ch. 544, § 4.
§ 43-11-110. Commercial value. - For the purpose of determining the commercial values to be applied under the provisions of § 43-11-109, the commissioner shall determine and publish annually the values per pound of nitrogen, available phosphoric acid, and soluble potash in commercial fertilizers in this state. If guarantees are as provided in § 43-11-103(9)(B), the values shall be per pound of nitrogen, phosphorus, and potassium. The values so determined and published shall be used in determining and assessing penalties.
History (2)
- Acts 1969, ch. 102, § 10
- T.C.A., § 43-1130.
§ 43-11-111. Soil conditioners. - (a) No soil conditioner, soil amendment, or any other material designed or claimed to improve the physical characteristics of the soil may be sold in this state until those products meet all of the requirements of this chapter and the regulations promulgated under this chapter, including the payment of inspection fees.
- (b) If the analysis shows that any soil amendment, soil conditioner, or similar product falls short of the guaranteed analysis in any one (1) ingredient or in total ingredients, then a penalty shall be assessed by the commissioner in the amount of three (3) times the larger deficiency. A minimum penalty of fifty dollars ($50.00) shall be assessed on any deficiency of such product. Investigational allowances and total ingredient values shall be established by regulation and shall follow the Official Publication of the Association of American Plant Food Control Officials if applicable. All penalties shall be paid in the manner prescribed by § 43-11-109.
History (4)
- Acts 1969, ch. 102, § 11
- 1972, ch. 628, § 2
- T.C.A., § 43-1131
- Acts 1988, ch. 544, § 5.
§ 43-11-112. Misbranded fertilizer — Distribution prohibited. - Commercial fertilizer is misbranded if it carries a false or misleading statement on the container, on the label attached to the container, or if false or misleading statements concerning the fertilizer are disseminated in any manner or by any means. It is unlawful to distribute a misbranded fertilizer.
History (2)
- Acts 1969, ch. 102, § 12
- T.C.A., § 43-1132.
§ 43-11-113. Rules and regulations. - For the enforcement of this part, the commissioner is authorized to prescribe and, after a hearing following due notice, to enforce such rules and regulations relating to the distribution of commercial fertilizers as the commissioner may find necessary to carry into effect the full intent and meaning of this part.
History (2)
- Acts 1969, ch. 102, § 13
- T.C.A., § 43-1133.
§ 43-11-114. Penalty for short weight. - If any commercial fertilizer in the possession of the consumer is found by the commissioner to be short in weight, the registrant of the commercial fertilizer shall, within thirty (30) days after official notice from the commissioner, pay to the consumer a penalty equal to three (3) times the value of the actual shortage.
History (3)
- Acts 1969, ch. 102, § 14
- T.C.A., § 43-1134
- Acts 1986, ch. 659, § 9.
§ 43-11-115. “Stop sale, use, or removal” orders. - The commissioner may issue and enforce a written or printed “stop sale, use, or removal” order to the owner or custodian of any lot of commercial fertilizer, and may order the owner or custodian to hold the fertilizer at a designated place, when the commissioner finds the commercial fertilizer is being offered or exposed for sale in violation of any of the provisions of this part, until the law has been complied with and the commercial fertilizer is released in writing by the commissioner, or the violation has been otherwise legally disposed of by written authority. The commissioner shall release the commercial fertilizer so withdrawn when the requirements of this part have been complied with and all costs and expenses incurred in connection with the withdrawal have been paid.
History (2)
- Acts 1969, ch. 102, § 15
- T.C.A., § 43-1135.
§ 43-11-116. Seizure, condemnation, and sale. - Any lot of commercial fertilizer not in compliance with this part shall be subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the area in which the commercial fertilizer is located. In the event the court finds the commercial fertilizer to be in violation of this part and orders the condemnation of the commercial fertilizer, it shall be disposed of in any manner consistent with the quality of the commercial fertilizer and the laws of the state; provided, that in no instance shall the disposition of the commercial fertilizer be ordered by the court without first giving the claimant an opportunity to apply to the court for release of the commercial fertilizer or for permission to process or re-label the commercial fertilizer to bring it into compliance with this part.
History (2)
- Acts 1969, ch. 102, § 16
- T.C.A., § 43-1136.
§ 43-11-117. Revocation of registration — Hearing — Subpoenas — Certiorari and review — New registration. - (a) The commissioner has the authority to revoke any registration certificate for violation of any of the provisions of this part, or the rules and regulations promulgated under this part. The commissioner can refuse registration privileges when the product does not meet the requirements of this part. Upon information received, the commissioner shall, by written notice, establish a hearing for the registrant. The hearing shall be held within fifteen (15) days from the date of the mailing of the notice. If, after the hearing, the commissioner revokes the registration, then the right of appeal is reserved to the registrant. The commissioner has the power to subpoena any persons or records incident to the hearing and to administer oaths to those giving evidence. In case of contumacy or refusal to obey a subpoena issued to any person, any circuit or chancery court of this state within the county in which the investigation is carried on, or in which the person guilty of contumacy or refusal to obey is found or resides or transacts business, or where that person's principal place of business is located, upon application by the commissioner, shall have jurisdiction to issue to that person an order requiring that person to appear before the commissioner at a specified time and place and then and there produce evidence, if so ordered, or there to give testimony touching the matter under investigation or subject of inquiry, or answer any question, and any failure to obey such order of the court may be punished by the court as a contempt thereof as provided by law. A court reporter shall be in attendance at all registration revocation hearings.
- (b) The action of the commissioner may be reviewed by petition for statutory writ of certiorari addressed to the circuit or chancery court where the offense occurs, and the petition shall be filed within ten (10) days from the date of the order of revocation issued by the commissioner. Upon the grant of the writ of certiorari, the commissioner shall certify to the court a complete transcript of the proceedings instituted before the commissioner. This certified transcript shall constitute the whole record, and no additional proof or evidence shall be considered by the court. The decision of the commissioner shall remain final until the matter has been finally resolved by the courts.
- (c) If, after revocation of the registrant's registration, the registrant complies with requirements of the law as provided and makes manifest in writing the registrant's intentions to forthwith observe the law, upon payment of the cost of the hearing the commissioner may reissue a new registration upon payment of the required fees. Reapplication may be made on such forms as provided by the commissioner, except in no case will reissuance of registration privileges be allowed where fraudulent or deceptive practices are shown.
History (2)
- Acts 1969, ch. 102, § 17
- T.C.A., § 43-1137.
§ 43-11-118. Notice of violations — Hearing — Certification of facts to prosecuting attorney. - If it appears from the examination of any commercial fertilizer that any of the provisions of this part or the rules and regulations issued under this part have been violated, the commissioner shall cause notice of the violations to be given to the registrant, distributor, or possessor from whom the sample was taken; any person so notified shall be given an opportunity to be heard under such rules and regulations as may be prescribed by the commissioner. If it appears after the hearing, either in the presence or absence of the person so notified, that this part or rules and regulations issued under this part have been violated, the commissioner may certify the facts to the proper district attorney general.
History (2)
- Acts 1969, ch. 102, § 17
- T.C.A., § 43-1138.
§ 43-11-119. Penalty for violations. - Any person who violates or aids in violating any provision of this part, or any rules and regulations promulgated under this part, commits a Class C misdemeanor.
History (3)
- Acts 1969, ch. 102, § 17
- T.C.A., § 43-1139
- Acts 1989, ch. 591, § 113.
§ 43-11-120. Prosecution of minor violations not required — Notice of warning. - Nothing in this part shall be construed as requiring the commissioner or the commissioner's representative to report for prosecution or for the institution of seizure proceedings as a result of minor violations of this part when the commissioner believes that the public interests will be best served by a suitable notice of warning in writing.
History (2)
- Acts 1969, ch. 102, § 17
- T.C.A., § 43-1140.
§ 43-11-121. Duty of district attorney general. - It is the duty of each district attorney general to whom any violation is reported to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay.
History (2)
- Acts 1969, ch. 102, § 17
- T.C.A., § 43-1141.
§ 43-11-122. Injunctions against violations. - The commissioner is authorized to make application to any chancery court of this state for a temporary or permanent injunction, restraining any person from violating or continuing to violate any of the provisions of this part or any rule or regulation promulgated under this part, notwithstanding the existence of other remedies at law. This injunction is to be issued without bond.
History (2)
- Acts 1969, ch. 102, § 17
- T.C.A., § 43-1142.
§ 43-11-123. Exchanges between manufacturers. - Nothing in this part shall be construed to restrict or avoid sales or exchanges of commercial fertilizers to each other by importers, manufacturers, or manipulators who mix fertilizer materials for sale or as preventing the free and unrestricted shipments of commercial fertilizer to manufacturers or manipulators who have registered their brands as required by the provisions of this part.
History (2)
- Acts 1969, ch. 102, § 18
- T.C.A., § 43-1143.
§ 43-11-124. Distribution of adulterated fertilizer products. - No person shall distribute an adulterated fertilizer product. A fertilizer shall be deemed to be adulterated if:
- (1) It contains any deleterious or harmful ingredient in sufficient amount to render it injurious to beneficial plant life when applied in accordance with directions for use on the label, or if adequate warning statements or directions for use that may be necessary to protect plant life are not shown upon the label;
- (2) Its composition falls below or differs from what it is purported to possess by its labeling; or
- (3) It contains unwanted crop seed or weed seed.
History (1)
- Acts 1986, ch. 659, § 10.
§ 43-11-125. Local legislation. - (a) No political subdivision may regulate the registration, packaging, labeling, sale, storage, distribution, use and application of fertilizers; and, in addition, no political subdivision may adopt or continue in effect local legislation relating to the registration, packaging, labeling, sale, storage, distribution, use or application of fertilizers. Local legislation in violation of this section is void and unenforceable.
- (b) Subsection (a) shall not apply in any county having a population in excess of two hundred thousand (200,000), according to the 2000 federal census or any subsequent federal census.
History (1)
- Acts 2008, ch. 1040, §§ 2, 3.
Part 3 Anhydrous Ammonia § 43-11-301. Short title. - This part shall be known and may be cited as the “Anhydrous Ammonia Storage and Equipment Law of Tennessee.”
History (3)
- Acts 1949, ch. 198, § 1
- C. Supp. 1950, § 519.1
- T.C.A. (orig. ed.), §§ 43-1301, 43-13-101.
§ 43-11-302. Powers and duties of commissioner — Rules and regulations. - The commissioner of agriculture is vested with the power and authority and is charged with the duty of administering and enforcing this part, and has the authority to establish and enforce reasonable rules and regulations not inconsistent with this part, for the purpose of carrying out this part.
History (3)
- Acts 1949, ch. 198, § 2
- C. Supp. 1950, § 519.2
- T.C.A. (orig. ed.), §§ 43-1302, 43-13-102.
§ 43-11-303. Part definitions. - (a) “Anhydrous ammonia,” when used exclusively for commercial fertilizer, is, for the purpose of this part, defined as follows: anhydrous ammonia contains eighty-two percent (82%) nitrogen. At atmospheric pressure, ammonia is a gas that exists as a liquid below minus twenty-eight degrees Fahrenheit (−28° F.), and boils at this temperature. In commerce, ammonia is compressed to a liquid and stored under pressure. The gauge pressure is seventy-five pounds (75 lbs.) per square inch at fifty degrees Fahrenheit (50° F.), and one hundred ninety-seven pounds (197 lbs.) per square inch at one hundred degrees Fahrenheit (100° F.). The pressures exerted by anhydrous ammonia are dangerous unless the proper safety devices are installed in the equipment and care is used in handling.
- (b) “Dealers in anhydrous ammonia and equipment,” as covered by this part, are all persons, firms, corporations or associations who buy and sell or distribute at wholesale or retail to users and consumers, anhydrous ammonia as a fertilizer, or equipment used in the installation, storage, handling, utilization and dispensing of anhydrous ammonia as a fertilizer. Manufacturers of anhydrous ammonia, or manufacturers or jobbers that wholesale anhydrous ammonia equipment, when sold to dealers or distributors, as defined in this part, or any person or persons, firms or corporations owning or maintaining storage facilities for anhydrous ammonia as a fertilizer for their own use and accommodation, and for the use and accommodation of their tenant or sharecropper, are not to be classed as dealers within the meaning and intention of this part.
History (3)
- Acts 1949, ch. 198, § 3
- C. Supp. 1950, § 519.3
- T.C.A. (orig. ed.), §§ 43-1303, 43-13-103.
§ 43-11-304. Dealers' permit necessary before doing business — Bond for compliance with provisions — Financial responsibility. - (a) No person, firm, corporation or association shall engage in business as a dealer in anhydrous ammonia as a fertilizer, or as a dealer in equipment used in the handling of anhydrous ammonia as a fertilizer within this state without first having obtained from the commissioner of agriculture a permit. This permit shall be issued only after proper written application is made and filed and after all requirements established with respect to dealers have been complied with by the applicant.
- (b) Before engaging in business as a dealer, the applicant for a permit shall furnish a bond for the sum of one thousand dollars ($1,000) with good and solvent surety, payable to the state of Tennessee, and issued by a bonding company or companies licensed to do business in this state and acceptable by the commissioner, which bond shall serve as a guarantee that the dealer will comply with all the provisions of this part and all of the rules and regulations established with respect to the sale and handling of anhydrous ammonia as a fertilizer, and the sale and handling or installation of equipment used in the handling of anhydrous ammonia as a fertilizer.
- (c) Before engaging in business as a dealer, the applicant for a permit shall satisfy the commissioner that the applicant is financially responsible; and this provision as to financial responsibilities will be complied with by filing with the commissioner evidence that the applicant has applied for and the applicant's application for insurance has been approved, on standard contract forms, and to be issued by insurance company or companies licensed to do business in this state in an amount of not less than twenty-five thousand dollars ($25,000).
- (d) In lieu of filing with the commissioner evidence of insurance coverages as set forth in subsection (c), the applicant may file with the commissioner a good and sufficient surety bond executed by a surety company licensed to do business in the state of Tennessee, in an amount not to exceed twenty-five thousand dollars ($25,000), which bond shall be payable to the state of Tennessee and shall be conditioned to guarantee the payment of all damages for which the dealer may be legally responsible while engaged in the business as a dealer.
History (3)
- Acts 1949, ch. 198, § 4
- C. Supp. 1950, § 519.4
- T.C.A. (orig. ed.), §§ 43-1304, 43-13-104.
§ 43-11-305. Punishment of violations. - A violation of this part or rules and regulations promulgated under this part is a Class C misdemeanor.
History (4)
- Acts 1949, ch. 198, § 5
- C. Supp. 1950, § 519.5
- T.C.A. (orig. ed.), §§ 43-1305, 43-13-105
- Acts 1989, ch. 591, § 113.
Part 4 Liming Materials § 43-11-402. Part definitions. - As used in this part, unless the context requires otherwise:
- (1) “Agricultural liming materials” means a product whose calcium and magnesium compounds are capable of neutralizing soil acidity, and including, but not limited to, limestone, burnt lime, hydrated lime, marl, industrial by-products, calcitic limestone, dolomatic limestone, and ground shells;
- (2) “AOAC” means the Association of Official Analytical Chemists;
- (3) “Brand” means the term, designation, trademark, product name or other specific designation under which individual agricultural liming material is offered for sale;
- (4) “Bulk” means material or product in nonpackaged form;
- (5) “Calcium carbonate equivalent” means the acid neutralizing capacity of an agricultural liming material expressed as weight percentage of calcium carbonate;
- (6) “Commissioner” means the commissioner of agriculture or the commissioner's duly authorized representatives;
- (7) “Fineness” means the percentage by weight of the material that will pass United States standard sieves of specified sizes as established by regulations pursuant to this part;
- (8) “Label” means any written or printed matter on or attached to the package or on the delivery ticket that accompanies bulk shipments;
- (9) “Manufacturer” means any person in the business of making, shaping, or packaging an agricultural liming material into a form that will remain virtually unaltered until it reaches the hands of the final consumer;
- (10) “Percent” or “percentage” means percent or percentage as measured by weight;
- (11) “Person” means an individual, partnership, association, firm or corporation;
- (12) “Ton” means a net weight of two thousand pounds (2,000 lbs.) avoirdupois; and
- (13) “Weight” means the weight of undried material as offered for sale.
§ 43-11-403. Labeling and identification. - (a) Agricultural liming materials sold, offered or exposed for sale in the state shall have affixed to each package in a conspicuous manner on the outside thereof, a plainly printed, stamped or otherwise marked label, tag or statement, or in the case of bulk sales, a delivery slip, setting forth at least the following information:
- (1) The name and principal office address of the manufacturer or distributor;
- (2) The brand or trade name of the material;
- (3) The identification of the product as to the type of the agricultural liming material;
- (4) The net weight of the agricultural liming material;
- (5) The minimum percentage of calcium oxide and magnesium oxide and/or calcium carbonate and magnesium carbonate;
- (6) Calcium carbonate equivalent as determined by methods prescribed by the Association of Official Analytical Chemists. Minimum calcium carbonate equivalents will be as prescribed by regulation;
- (7) The minimum percent by weight passing through United States standard sieves as prescribed by regulations; and
- (8) The minimum guaranteed content of available potassium (expressed as soluble Potash, KO) or phosphorous (expressed as phosphoric acid, PO) if claimed.
- (b) No information or statement shall appear on any package, label, delivery slip or advertising matter that is false or misleading to the purchaser as to the quality, analysis, type or composition of the agricultural liming material.
- (c) In the case of any material that has been adulterated subsequent to packaging, labeling or loading thereof and before delivery to the consumer, a plainly marked notice to that effect shall be affixed by the vendor to the package or delivery slip to identify the kind and degree of such adulteration.
- (d) At every site from which agricultural liming materials are delivered in bulk and at every place where consumer orders for bulk deliveries are placed, there shall be conspicuously posted a copy of the statement required by this section for each brand of material.
- (e) When the commissioner finds, after public hearing following due notice, that the requirement for expressing the calcium and magnesium in elemental form would not impose an economic hardship on distributors and users of agricultural liming materials by reason of conflicting label requirements among the states, the commissioner may require by regulation thereafter that the minimum percentage of calcium oxide and magnesium oxide and/or calcium carbonate and magnesium carbonate shall be expressed in the following form:
- Total calcium (Ca) percent
- Total magnesium (Mg) percent
- provided, that the effective date of such regulation shall be not less than six (6) months following the issuance of the regulation; and provided further, that for a period of two (2) years following the effective date of the regulation, the equivalent of calcium and magnesium may also be shown in the form of calcium oxide and magnesium oxide and/or calcium carbonate and magnesium carbonate.
§ 43-11-404. Prohibited sales — Toxic materials. - (a) No agricultural liming material shall be sold or offered for sale in this state unless it complies with this part and regulations pertaining to this part.
- (b) No agricultural liming material shall be sold or offered for sale in this state that contains toxic materials in quantities injurious to plants or animals.
§ 43-11-405. License applications — Manufacturers. - (a) Every manufacturer who distributes liming materials in this state shall submit an application for a license to the commissioner on or before July 1 of each year, or prior to the manufacture or distribution of the liming material. All applications shall be submitted on forms furnished by the commissioner.
- (b) All license applications must be accompanied by payment of a fee set by rule pursuant to § 43-1-703. All licenses expire on June 30 of the following year.
History (2)
- Acts 1989, ch. 7, § 6
- 2015, ch. 485, § 14.
§ 43-11-406. [Repealed]
History (2)
- Acts 1989, ch. 7, § 7
- repealed by Acts 2015, ch. 485, § 15, effective July 1, 2015.
§ 43-11-407. Sampling and testing of materials. - (a) It is the duty of the commissioner, who may act through an authorized agent to sample, inspect, make analyses of, and test agricultural liming materials distributed within this state as the commissioner or the commissioner's agent may deem necessary to determine whether the agricultural liming materials are in compliance with this part. The commissioner, individually or through the commissioner's agent, is authorized to enter upon any public or private premises or carriers during regular business hours in order to have access to agricultural liming material subject to this part and regulations pertaining to this part, and to the records relating to their distribution.
- (b) The methods of analysis and sampling shall be those approved by the commissioner and shall be guided by AOAC procedures.
§ 43-11-408. Stop sale, or use or removal order. - When the commissioner finds any lot of agricultural liming materials is being offered or exposed for sale in violation of any of the provisions of this part, the commissioner may issue a “stop sale, or use or removal” order to the owner of the lot of materials. The commissioner may hold the lot at a designated place until the law has been complied with or otherwise legally disposed of by written permission of the commissioner.
§ 43-11-409. License suspension or revocation. - The commissioner shall have the authority to suspend or revoke any license in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, this part, and the rules and regulations promulgated under this part.
§ 43-11-410. Rules and regulations. - The commissioner is authorized to promulgate rules and regulations to effectuate the purposes of this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 43-11-411. Violations — Penalties. - A violation of this part, or any rule or regulation promulgated thereunder, is a Class C misdemeanor.
History (2)
- Acts 1989, ch. 7, § 11
- 1989, ch. 591, § 113.
Chapter 13 Tennessee Equine Health Advisory Commission § 43-13-101. Purpose and intent. - In the interest of the public health, safety, and welfare, it is the purpose and intent of this chapter to authorize the commission to study and make recommendations on issues related to equine health in this state to:
- (1) Promote the health of horses in this state; and
- (2) Encourage agriculture and the breeding of equine livestock in this state.
§ 43-13-103. Tennessee equine health advisory commission. - (a) There is created a Tennessee equine health advisory commission, which consists of nine (9) members as follows:
- (1) The commissioner of agriculture, or the commissioner's designee, as an ex officio voting member;
- (2) One (1) member appointed by the governor who is licensed to practice veterinary medicine under title 63, chapter 12, part 1, who has experience in the equine industry in this state, to be chosen from a list of eligible nominees from the Tennessee Veterinary Medical Association;
- (3) One (1) public member appointed by the speaker of the senate;
- (4) One (1) public member appointed by the speaker of the house of representatives; and
- (5) Five (5) public members appointed by the governor.
- (b) Of the members appointed under subdivision (a)(5), the governor shall strive to appoint members from each grand division of this state.
- (c) The governor shall appoint initial members of the commission to staggered terms as follows:
- (1) The veterinarian appointed under subdivision (a)(2), the public member appointed under subdivision (a)(3), the public member appointed under subdivision (a)(4), and one (1) of the members appointed under subdivision (a)(5) are appointed to serve initial terms of six (6) years; and
- (2) Four (4) of the members appointed under subdivision (a)(5) are appointed to serve initial terms of four (4) years.
- (d) The terms of initial appointees to the commission commence on August 1, 2020. All subsequent appointments are for four-year terms that begin on July 1 and end on June 30.
- (e) The commission is attached to the department of agriculture for administrative purposes.
§ 43-13-104. Eligibility for membership on commission. - To be eligible for appointment to, and membership on, the commission, a person must:
- (1) Be a legal resident of this state at the time of appointment; and
- (2) Have personal or professional experience in and knowledge of the equine industry in this state.
§ 43-13-105. Meetings — Quorum — Service without compensation or travel expenses. - (a) The commission shall meet at least once per year and may hold additional meetings necessary for the purpose of transacting business that properly comes before it. All members of the commission must be duly notified of the time and place of each meeting.
- (b) The commissioner of agriculture, or the commissioner's designee, shall call the initial meeting of the commission. The members of the commission shall elect a chair and a secretary during the initial meeting. The chair of the commission shall call all subsequent commission meetings.
- (c) A simple majority of the members of the commission constitutes a quorum for the transaction of business or the exercise of its powers.
- (d) The members of the commission serve without compensation or travel expenses.
§ 43-13-106. Study of equine health and equine industry issues — Regulatory and legislative recommendations — Report. - (a) The commission shall study the state of equine health in this state, emerging equine health issues that may impact the equine industry in this state, and other equine health and equine industry issues the commission deems relevant, and shall make regulatory and legislative recommendations to the department and the general assembly.
- (b) On or before February 1, 2021, and not later than each February 1 thereafter, the commission shall develop and submit an annual report to the governor, the commissioner of agriculture, the chair of the energy, agriculture and natural resources committee of the senate, and the agriculture and natural resources committee of the house of representatives. The report must describe the status of equine health in this state, make any recommendations for rulemaking to the department that the commission considers appropriate, and make any legislative recommendations to the general assembly that the commission considers appropriate.
Chapter 14 Soil Conservation Part 1 Assent to Federal Law § 43-14-101. [Repealed]
History (5)
- Acts 1937, ch. 44, § 1
- C. Supp. 1950, § 552.1 (Williams, § 552.30)
- T.C.A. (orig. ed.), § 43-1401
- Acts 2004, ch. 517, § 5
- repealed by Acts 2021, ch. 203, § 1, effective April 22, 2021.
Part 2 Soil and Water Conservation Districts Law § 43-14-202. Part definitions. - As used in this part, unless the context otherwise requires:
- (1) “Agricultural industry representative” means any person:
- (A) Engaged in a business that provides a service to, or good for, farmers engaged in production agriculture;
- (B) Employed by a local, state, or federal agency that has as part of its mission the conservation of natural resources and the betterment of farming interests; or
- (C) Possessing a graduate-level degree in agricultural science, agricultural engineering, or agricultural business;
- (2) “Commission” means the Tennessee soil and water conservation commission created by § 43-14-203;
- (3) “Commissioner” means the commissioner of agriculture;
- (4) “District” or “soil and water conservation district” means a subdivision of this state and a public body corporate and politic, organized under this part, for the purpose, with the powers, and subject to the restrictions set forth in this part;
- (5) “Land occupier” means any person, other than the owner, who is in possession of any lands lying within a district, whether as lessee, renter, tenant, or otherwise;
- (6) “Landowner” means any person who holds legal or equitable title to any lands lying within a district;
- (7) “Neglect of duty” means a public official's failure to perform a duty of office;
- (8) “Nominating petition” means a petition filed under § 43-14-214 to nominate candidates for the office of supervisor of a soil and water conservation district;
- (9) “Petition” means a petition filed under § 43-14-207 for the creation of a district;
- (10) “Supervisor” means a member of the governing body of a district, elected or appointed pursuant to this part;
- (11) “Tennessee association of conservation districts” means the nonprofit organization consisting of the ninety-five (95) soil and water conservation districts in this state, with the mission of assisting the districts with the conservation of soil, water, and other natural resources through education, leadership, and advocacy;
- (12) “Training and experience” means knowledge of existing conservation practices and programs, first-hand experience with installation of conservation practices, or education and training or experience in soil science, natural resources, environmental science, or a related field; and
- (13) “United States” means the government of the United States, the natural resources conservation service of the United States department of agriculture, and any other agency or instrumentality thereof.
§ 43-14-203. Tennessee soil and water conservation commission — Members — Powers and duties. - (a) There is established the Tennessee soil and water conservation commission to perform the functions conferred upon it in this part.
- (b)
- (1) The commission consists of seven (7) members appointed by the governor and four (4) ex officio members.
- (2) The seven (7) members appointed by the governor include:
- (A) Two (2) members from the eastern grand division, one (1) of whom must be a farmer or agricultural industry representative and one (1) of whom must be a supervisor;
- (B) Two (2) members from the middle grand division, one (1) of whom must be a farmer or agricultural industry representative and one (1) of whom must be a supervisor;
- (C) Two (2) members from the western grand division, one (1) of whom must be a farmer or agricultural industry representative and one (1) of whom must be a supervisor; and
- (D) One (1) member who is a supervisor from the state at large.
- (3)
- (A) The following persons serve as ex officio members of the commission and are voting members:
- (i) The senior vice president and senior vice chancellor of the University of Tennessee Institute of Agriculture, or the senior vice president and senior vice chancellor's designee;
- (ii) The commissioner of agriculture, or the commissioner's designee;
- (iii) The commissioner of environment and conservation, or the commissioner's designee; and
- (iv) The elected president of the Tennessee association of conservation districts, or the president's designee.
- (B) An ex officio member holds office so long as the member retains the office by virtue of which such member is serving on the commission.
- (c)
- (1) The members of the state soil conservation committee on April 22, 2021 shall continue to serve as members of the commission until the expiration of their terms.
- (2) After the expiration of the terms of office pursuant to subdivision (c)(1), all members appointed to the commission serve for a term of three (3) years.
- (d) Whenever a vacancy on the commission exists, the governor shall appoint a member for the remainder of the unexpired term. In making appointments to the commission, the governor shall strive to ensure that at least one (1) person appointed to serve on the commission is sixty (60) years of age or older and that at least one (1) person appointed to serve on the commission is a member of a racial minority. A member appointed as a supervisor member of the commission who ceases to hold the position of supervisor shall continue to serve on the commission until the expiration of such member's term.
- (e) The commission shall keep a record of its official actions and may perform acts, hold public hearings, and promulgate rules that are necessary for the execution of its functions under this part.
§ 43-14-205. Designation of chair — Quorum — Expenses — Surety bonds — Records — Audit — Meetings. - (a) The commission shall designate one (1) of the non-ex officio members as its chair, and may, from time to time, change such designation.
- (b) A majority of the commission shall constitute a quorum, and the concurrence of a majority in any matter within their duties shall be required for its determination.
- (c) The chair and members of the commission shall not receive compensation for their services on the commission, but are entitled to expenses, including travel expenses, necessarily incurred in the discharge of their duties on the commission. All reimbursements for travel expenses must be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
- (d) The commission shall provide for:
- (1) The execution of surety bonds for all commission employees and officers entrusted with public funds or property;
- (2) The keeping of a full and accurate record of all proceedings and of all resolutions, rules, and orders issued or adopted by the commission; and
- (3) An annual audit of the accounts of receipts and disbursements.
- (e) All meetings of the commission are subject to title 8, chapter 44, part 1.
- (f)
- (1) The commission shall conduct at least two (2) meetings each year. However, the commission shall strive to conduct four (4) meetings each year.
- (2)
- (A) Any member who misses more than fifty percent (50%) of the scheduled meetings in a calendar year shall be removed as a member of the commission.
- (B) The chair shall promptly notify, or cause to be notified, the appointing authority of any member who fails to satisfy the attendance requirement as prescribed in subdivision (f)(2)(A).
§ 43-14-206. Additional duties and powers of commission. - In addition to other duties and powers conferred upon the commission in this part, the commission may:
- (1) Assist supervisors in carrying out of their powers and programs, including working to provide training for supervisors and district employees, with an emphasis on proper financial management processes and procedures;
- (2) Inform supervisors of the activities and experience of other districts, and facilitate an interchange of advice and experience among the districts and cooperation between them, with a focus on communicating district successes in measurably lessening soil erosion rates, leading districts to engage with landowners who may be experiencing excessive soil erosion and water quality impacts, and better defining the interrelationship between soil erosion reductions and benefits to water and other natural resources;
- (3) Adopt resolutions and policies to facilitate the work of the districts and promulgate rules as necessary and appropriate;
- (4) Coordinate the programs of the districts by advice and consultation and encourage districts to partner on projects that cross district boundaries if necessary and appropriate to lessen soil erosion;
- (5) Secure the cooperation and assistance of the United States and any of its agencies, and of the agencies of this state, in the work of watershed districts established under title 69, chapter 6 and soil and water conservation districts;
- (6) Disseminate information throughout this state concerning the activities and programs of the soil and water conservation districts and watershed districts, and encourage and facilitate the formation of such districts in areas where their organization is desirable;
- (7) Constitute the state agency having the sole responsibility to administer and approve watershed districts and programs under federal law;
- (8) Collect and disseminate data and information concerning the causes, extent, and location of soil erosion problems in this state and encourage the funding of comprehensive research projects to study alternative solutions to these problems;
- (9) Collaborate with the state and national associations of conservation districts to leverage their advice, financial assistance, and consultation to assist the supervisors and employees of the districts with providing services to landowners and land occupiers to reduce soil erosion and improve water quality;
- (10) Develop and maintain a comprehensive statewide plan for the conservation of Tennessee's soils, including a plan to measurably reduce sedimentation impacts to Tennessee waters, and revise the plan as needed, and at least every five (5) years, in consultation with appropriate sources of information; and
- (11) Prepare and submit annually to the commissioner a report of the progress regarding, and a budget request adequate to fund, the implementation of soil and water conservation programs in this state.
§ 43-14-207. Petition for soil and water conservation district — Hearing — Determination — Referendum. - (a) Any twenty-five (25) landowners within the limits of the territory proposed to be organized into a district may file a petition with the commission requesting that a soil and water conservation district be organized for the territory described in the petition. The description is sufficient if generally accurate and the commission shall not require the description to be given by metes and bounds or by legal subdivision.
- (b) Where more than one (1) petition is filed covering parts of the same territory, the commission may consolidate the petitions.
- (c) Within sixty (60) days after a petition is filed with the commission, the commission shall give notice of a proposed hearing regarding the desirability and necessity, in the interest of public health, safety, and welfare, of the creation of the proposed district, the appropriate boundaries for the district, the propriety of the petition and other proceedings under this part, and any related questions. All landowners and land occupiers within the limits of the territory described in the petition and any territory considered for addition to the described territory and any other interested parties shall have the right to attend the proposed hearings and to be heard. If, at the hearing, it appears that it may be desirable to include, within the proposed district, territory outside of the area regarding which notice of the hearing has been given, the hearing shall be adjourned, and the commission shall hold a further hearing following the commission's provision of notice of such further hearing throughout the area considered for inclusion in the district.
- (d)
- (1) If, after the hearing, the commission determines that, based upon the facts presented at the hearing and any other relevant facts and information, there is a need, in the interest of public health, safety, and welfare, for a soil and water conservation district in the territory considered at the hearing, the commission shall make and record this determination, and shall define, by metes and bounds or by legal subdivision, the boundaries of such district. In making this determination and defining the district's boundaries, the commission shall give due weight and consideration to the topography of the area considered and of the state, the composition of soils therein, the distribution of erosion, the prevailing land-use practices, the desirability and necessity of including within the boundaries the particular lands under consideration and the benefits the lands may receive from being included within such boundaries, the relation of the proposed area to existing watersheds and agricultural regions and to other soil and water conservation districts already organized or proposed for organization under this part, and any other relevant physical, geographical, and economic factors. The territory to be included within the district need not be contiguous.
- (2) If, after the hearing and due consideration of the relevant facts, the commission determines that there is no need for a district in the territory considered at the hearing, it shall make and record this determination and shall deny the petition. After six (6) months have expired from the date of the denial of any such petition, subsequent petitions covering the same or substantially the same territory may be filed, considered, and determined in accordance with this section.
- (e) After the commission has made and recorded a determination that there is a need, in the interest of public health, safety, and welfare, for the organization of a district in a particular territory and has defined the boundaries of the district, the commission shall consider whether the operation of a district within those boundaries, with the powers conferred upon districts by this part, is administratively practicable and feasible.
- (f) To assist the commission in the determination of administrative practicability and feasibility under subsection (e), the commission shall, within a reasonable time after finding that there is a need for the proposed district and determining its boundaries, hold a referendum within the proposed district regarding the creation of the district and cause notice of the referendum to be given. Only landowners within the boundaries of the territory, as determined by the commission, are eligible to vote in the referendum.
- (g) A duly organized local soil conservation district in existence on April 22, 2021 continues to exist as a soil and water conservation district, and supervisors of a district serving on April 22, 2021 continue to serve as the supervisors of the district until the expiration of their terms.
§ 43-14-208. Conduct of hearings and referenda. - The commission shall pay all expenses for the issuance of notices and the conduct of hearings and referenda under this part, and shall supervise the conduct of the hearings and referenda. The commission shall promulgate rules governing the conduct of the hearings and referenda and providing for the registration, prior to the date of the referendum, of all eligible voters, or prescribing an alternate procedure for the determination of those eligible as voters in the referendum. No informalities in the conduct of the referendum, or in any matter relating to the referendum, invalidate the referendum or its result, if notice of the referendum was given substantially as provided in this part and the referendum has been fairly conducted.
§ 43-14-209. Publication of results of referendum — Determination of whether operation of district is administratively practicable and feasible. - The commission shall publish the result of the referendum and shall thereafter consider and determine whether the operation of the district within the defined boundaries is administratively practicable and feasible. If the commission determines that the operation of the district is not administratively practicable and feasible, it shall record this determination and deny the petition. If the commission determines that the operation of the district is administratively practicable and feasible, it shall record this determination and shall proceed with the organization of the district in the manner provided in this part. In making this determination, the commission shall give due regard and weight to the attitudes of the landowners and land occupiers of lands lying within the defined boundaries, the number of landowners eligible to vote in the referendum who have voted, the proportion of the votes cast in the referendum in favor of the creation of the district to the total number of votes cast, the probable expense of carrying on erosion-control operations within the district, and other economic and social factors relevant to the determination; provided, that the commission shall not determine that the operation of the proposed district within the defined boundaries is administratively practicable and feasible, unless at least a majority of the votes cast in the referendum upon the proposition of creation of the district were cast in favor of the creation of the district.
§ 43-14-210. Naming of district and appointment of supervisors — Application and statement from commission — Certificate of organization of district. - (a) If the commission determines that the operation of the proposed district within the defined boundaries is administratively practicable and feasible, it shall name the district and appoint two (2) supervisors to act, with the three (3) supervisors elected pursuant to § 43-14-214, as the governing body of the district.
- (b) The two (2) appointed supervisors shall present to the secretary of state an application signed by them, and subscribed and sworn to by each of the supervisors before an officer authorized by the laws of this state to take and certify oaths, which provides:
- (1) That a petition for the creation of the district was filed with the commission pursuant to this part, and that the proceedings required by this part were taken pursuant to the petition, that the application is filed in order to complete the organization of the district, and that the commission has appointed the applicants as supervisors;
- (2) The name and official residence of each of the supervisors, together with a certified copy of the appointments evidencing their right to office;
- (3) The term of office of each of the supervisors;
- (4) The name proposed for the district; and
- (5) The location of the district supervisors' principal office.
- (c)
- (1) The application required by subsection (b) must be accompanied by a statement from the commission, which certifies that:
- (A) A petition was filed, notice was issued, and a hearing was held as required by this part;
- (B) The commission determined that there is a need, in the interest of public health, safety, and welfare, for a soil and water conservation district to function in the proposed territory and defined the boundaries thereof;
- (C) Notice was given, and a referendum held on the question of the creation of the district;
- (D) A majority of the votes cast in the referendum favored the creation of the district; and
- (E) After the referendum, the commission determined that the operation of the proposed district is administratively practicable and feasible.
- (2) The statement must set forth the boundaries of the district as they have been defined by the commission.
- (d) When the application and statement have been filed and recorded in the office of the secretary of state, the district constitutes a subdivision of this state and a public body corporate and politic. The secretary of state shall make and issue to the supervisors, under the seal of the state, a certificate of the organization of the district, and shall record the certificate with the application and statement. The boundaries of the district must include the territory as defined by the commission under subsection (c), but the district must not include any area included within the boundaries of another soil and water conservation district organized under this part.
- (e) In lieu of all other fees, five dollars ($5.00), must be paid to the secretary of state at the time the certificate is issued.
§ 43-14-211. Subsequent petitions after denial of petition. - After six (6) months have expired from the date of the denial of a petition pursuant to a determination by the commission that operation of a proposed district is not administratively practicable and feasible, subsequent petitions may be filed and action taken in accordance with this part.
§ 43-14-212. Petitions for including additional territory within existing district. - Petitions for including additional territory within an existing district may be filed with the commission. The proceedings provided for in this part in the case of petitions to organize a district must be observed in the case of petitions for inclusion. The commission shall prescribe the form for such petitions, which must be substantially the same as the form for petitions to organize a district. If the number of landowners in the area proposed for inclusion is less than twenty-five (25), a referendum is not required if the petition is signed by a majority of the landowners of the area. In referenda upon petitions for inclusion, all landowners within the proposed additional area are eligible to vote.
§ 43-14-213. Establishment of district upon proof of the issuance of certificate. - In any suit, action, or proceeding involving the validity or enforcement of, or relating to, any contract, proceeding, or action of the district, the district is established in accordance with this part upon proof of the issuance of the certificate by the secretary of state pursuant to § 43-14-210. A copy of the certificate certified by the secretary of state is admissible in evidence in any suit, action, or proceeding and is proof of the filing and its contents.
§ 43-14-214. Nominating petitions for supervisors — Election — Procedures for subsequent elections — Appointment of supervisors — Procedures for subsequent appointments — Term — Vacancy. - (a) Within thirty (30) days after the date of issuance by the secretary of state of a certificate of organization of a district, nominating petitions may be filed with the commission to nominate candidates for supervisors of the district. The commission is authorized to extend the time within which nominating petitions may be filed. The commission shall not accept a nominating petition unless it is signed by twenty-five (25) or more landowners within the boundaries of the district. Landowners may sign more than one (1) nominating petition. All candidates for supervisor shall maintain their primary residence in the district of their candidacy. The commission shall give notice of an election to be held for three (3) supervisors for the district. Only landowners within the district are eligible to vote in the election. The three (3) candidates who receive the largest number, respectively, of the votes cast in the election shall be the elected supervisors for the district. The commission shall pay the expenses of the election, supervise the conduct of the election, promulgate rules governing the conduct of the election and the determination of voter eligibility in the election, and publish the results of the election.
- (b) For elections subsequent to the first election of supervisors, the following procedures apply:
- (1) Candidates for election to the position of supervisor shall maintain their primary residence in the district of their candidacy and shall present a completed nominating petition to the district in accordance with subdivision (b)(3);
- (2) Upon notification by the commission, the county extension agricultural and natural resources agent of the University of Tennessee shall convene and chair a meeting of the local nominating committee to nominate candidates for election as supervisors. The local nominating committee shall determine the number of candidates nominated. A local nominating committee must include, but is not limited to, local representatives from agricultural organizations, such as the county farm service agency committee, the county extension committee, the county farm bureau, and members of the district whose terms are not expiring. The district staff shall take minutes at the local nominating committee's meeting to record its decisions;
- (3) For districts holding an election of supervisors, nominating petitions must be completed for each candidate on the ballot, regardless of whether the candidate was nominated by the local nominating committee. The commission shall not accept a nominating petition unless it is signed by twenty-five (25) or more landowners within the boundaries of the district. Landowners may sign more than one (1) nominating petition;
- (4) The district shall give notice of an election to be held for three (3) supervisors, which must include the names of the candidates in alphabetical order, the dates and times of the election, voting locations, and the deadline for submitting nominating petitions;
- (5) Only landowners within the district are eligible to vote in the election. Voting by proxy or by absentee ballot is not permitted; and
- (6) The ballots must be counted and certified by selected district polling officials, and the results must be transmitted to the commission. The three (3) candidates who receive the largest number of the votes cast in the election shall be the elected supervisors for the district.
- (c) The first two (2) supervisors appointed following formation of a new district shall be appointed by the commission under § 43-14-210(a).
- (d) For appointments subsequent to the first appointment of supervisors, the following procedures apply:
- (1) The supervisors appointed by the commission must be persons who are, by training and experience, qualified to perform their duties under this part. Candidates for appointment as supervisor must maintain their primary residence in the district of appointment;
- (2) Upon notification by the commission, the county extension agricultural and natural resources agent of the University of Tennessee shall convene and chair a meeting of the local nominating committee for the purpose of nominating candidates for appointment as supervisors. The local nominating committee must include, but is not limited to, local representatives from agricultural organizations, such as the county farm service agency committee, the county extension committee, the county farm bureau, and members of the district whose terms are not expiring. The district staff shall take minutes at the local nominating committee's meeting to record its decisions;
- (3) The district staff shall transfer the nominations of the local nominating committee, along with a summary of each nominee's training and experience, to the commission as soon as practicable following the local nominating committee's meeting; and
- (4) The commission shall consider all local nominating committee nominees and shall appoint supervisors by vote of the commission.
- (e) All supervisors shall serve a term of three (3) years beginning on April 1, except that one (1) of the first two (2) supervisors appointed following formation of a new district under § 43-14-210(a) shall serve a term of four (4) years, so that the terms of the two (2) appointed supervisors do not expire simultaneously.
- (f) If there is a vacancy in the office of supervisor, the remaining supervisors, with the advice and consent of the commission, shall fill the vacancy by appointment for the remainder of the unexpired term. If the majority of a district's offices of supervisor are vacant, the commission shall fill the vacancies by appointment. All persons appointed to fill a supervisor vacancy must maintain their primary residence in the district of appointment and are eligible for subsequent election or, if qualified by training and experience, appointment as supervisor.
§ 43-14-215. Governing body of district — Designation of chair — Term — Quorum — Expenses — Employment — Delegation of powers and duties — Surety bonds — Annual report — Removal of supervisor — Designation of representative — Designation of emeritus or associate members — Youth board. - (a) The governing body of the district consists of five (5) supervisors, elected or appointed as provided in § 43-14-214.
- (b) The supervisors shall designate a chair and may, from time to time, change such designation. The term of office of each supervisor is three (3) years, except as provided in § 43-14-214(e). A supervisor shall hold office until a successor has been elected or appointed. A majority of the supervisors constitutes a quorum and the concurrence of a majority of supervisors present is required for the determination of a matter within the district's duties. Supervisors shall each receive the sum of thirty dollars ($30.00) per day for expenses incurred for attending district meetings where a quorum is present; provided, that the total of such payments to any supervisor shall not exceed three hundred sixty dollars ($360) per year. This sum is in lieu of any other payment for expenses.
- (c) Supervisors may, on a permanent or temporary basis, employ technical experts and such other officers, agents, and employees as they may require and shall determine their qualifications, duties, and compensation. Such persons shall comply with title 8, chapter 31. Supervisors may call upon the attorney general and reporter for legal services as they may require. Supervisors may delegate to their chair, to one (1) or more supervisors, or to one (1) or more agents or employees, such powers and duties as they deem proper. Supervisors shall furnish to the commission, upon request, copies of any ordinances, rules, regulations, orders, contracts, forms, or other documents they adopt or employ, and any other information concerning their activities.
- (d) Supervisors shall provide for the execution of surety bonds for all employees and officers entrusted with funds or property and the keeping of a full and accurate record of all proceedings and resolutions, rules, and orders issued or adopted. Supervisors shall provide an annual report to the commission, including a complete report of the district's revenues and disbursements.
- (e) The commission may remove a supervisor for neglect of duty or malfeasance in office, upon notice and a hearing.
- (f) Supervisors may invite the legislative body of any municipality or county located near the district to designate a representative to advise and consult with the supervisors, including with respect to matters concerning property, water supply, wastewater, or stormwater infrastructure or operation.
- (g) Supervisors may designate persons as emeritus or associate members of the district and may form youth boards to assist in carrying out the district's purposes.
- (h) It is neglect of duty for a supervisor to miss four (4) consecutive, regularly scheduled district governing body meetings without cause.
§ 43-14-216. Additional powers of district and supervisors. - A district and its supervisors may, in addition to other powers granted in this part:
- (1) Conduct surveys, investigations, and research relating to the character of soil erosion and necessary erosion prevention and control measures, the relationships between reductions in soil erosion rates and water quality improvement, the synergistic effects of reductions in soil loss on wildlife and other natural resource benefits, the economic impact of conservation measures and improvements in soil quality on agricultural operations, publish the results of such surveys, investigations, or research, and disseminate information concerning erosion prevention and control measures; provided, that in order to avoid duplication of research activities, no district shall initiate a research program except in cooperation with the commission, the department of agriculture, and the United States;
- (2) Conduct demonstration projects within the district, upon obtaining the consent of the landowner and land occupier or the necessary rights or interests in lands, in order to demonstrate, by example, the means, methods, and measures by which soil and soil resources may be conserved and improved, soil erosion in the form of soil washing may be prevented and controlled, and the relationships between soil erosion reduction and water quality or other benefits;
- (3) Carry out prevention and control measures within the district, including engineering operations, methods of cultivation, growing vegetation, and changes in use or management of land within the district, upon obtaining the consent of the landowner and land occupier or the necessary rights or interests in lands;
- (4) Cooperate, or enter into agreements, with any landowner and land occupier within the district to carry out erosion control and prevention operations, to help improve traditional areas of farm production, and to encourage diversification and innovation of farming operations within the district, subject to such conditions as the supervisors deem necessary to advance the purposes of this part;
- (5) Enter into agreements with the department of agriculture, other state agencies, local governments, and nonprofit organizations, including the national and state associations of conservation districts, to administer or assist in the administration of programs for the benefit of landowners and land occupiers within the district in carrying out erosion control and prevention operations, installing conservation practices to reduce erosion and improve related natural resources, improving traditional areas of farm production, diversifying farming operations, and encouraging farming innovation and nontraditional agricultural activities within the district;
- (6)
- (A) Obtain options upon, and acquire, by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, or rights or interests therein;
- (B) Maintain, administer, and improve any properties acquired, to receive income from the properties, and to expend the income in carrying out this part;
- (C) Sell, lease, or otherwise dispose of any property or property interests owned in furtherance of this part; and
- (D) Subject to the approval of the commissioner, or the commissioner's designee, and the comptroller of the treasury, or the comptroller's designee, borrow money for the purposes authorized by subdivisions (6)(A) and (6)(B), by issuing notes pursuant to title 9, chapter 21, part 6. The notes must be secured by:
- (i) Lawfully available district revenues and a guarantee of the full faith, credit, and taxing power of each local government within which the district is located; or
- (ii) Lawfully available district revenues and a statutory lien on the property financed by the notes;
- (7) Make available, on terms that the district prescribes, to landowners and land occupiers within the district, agricultural and engineering machinery and equipment, fertilizer, seeds and seedlings, of which all forest tree seedlings must be obtained, if practicable, from the nurseries of the forestry division operated by the department of agriculture or the forest service of the United States department of agriculture, and other material or equipment that will assist landowners and land occupiers in conserving soil resources and preventing and controlling soil erosion;
- (8) Construct, improve, and maintain structures that are necessary or convenient for the performance of operations authorized in this part;
- (9) Develop comprehensive plans for the conservation of soil resources and the control and prevention of soil erosion within the district, which must specify, in reasonable detail, the acts, procedures, performances, and avoidances to effectuate the plans, including any specification of engineering operations, methods of cultivation, growing of vegetation, cropping programs, tillage practices, and changes in use of land, and publish the plans and information in a manner that will bring the plans to the attention of landowners and land occupiers within the district;
- (10) Take over and administer, as agent of the United States, any soil conservation, erosion control, or erosion prevention project, undertaken by the United States within its boundaries;
- (11) Accept, use, and expend donations, gifts, and contributions in any form from the United States or from this state or any of its agencies;
- (12) Enter into agreements with the United States department of agriculture or its agencies to optimize the delivery of federal programs to landowners and land occupiers in the district, reduce erosion, and improve the condition of related natural resources in the district, and clarify the roles and responsibilities of each entity;
- (13) Sue and be sued in the name of the district;
- (14) Have a seal, which must be judicially noticed;
- (15) Have perpetual succession, unless terminated as provided in § 43-14-218;
- (16) Make and execute contracts and other instruments necessary or convenient to the exercise of its powers;
- (17) Make, amend, and repeal rules consistent with this part to carry into effect its purposes and powers;
- (18) As a condition of extending any benefit to, or performing work upon, land under this part, require contributions in any form or entry into agreements or covenants as to the use of such land to prevent or control erosion; and
- (19) Carry out, maintain, and operate works of improvement for flood prevention and agricultural phases of conservation development, utilization, and management of water.
§ 43-14-218. Petition for termination of district — Referendum — Determination of whether continued operation is administratively practicable and feasible — Certificate of dissolution. - (a) Beginning five (5) years after a district's certificate of organization is issued, a district, upon unanimously adopting a motion to dissolve the district, may file a petition with the commission requesting that the district and its operations be terminated. The commission may conduct public meetings and hearings regarding the petition. Within sixty (60) days after the commission receives a petition to terminate a district, the commission shall give notice of, issue appropriate rules regarding, and supervise a referendum regarding the petition. Only landowners of the district are eligible to vote in the referendum. No informalities in the conduct of the referendum or in any matter relating thereto invalidates the referendum or the result thereof, if notice thereof has been given substantially as provided in this subsection (a) and the referendum has been fairly conducted.
- (b) The commission shall publish the results of the referendum and determine whether the continued operation of the district is administratively practicable and feasible. If the commission determines that the continued operation of the district is administratively practicable and feasible, it shall record this determination and deny the petition, after which no such petition regarding that district may be filed or considered for five (5) years. If the commission determines that the continued operation of the district is not administratively practicable and feasible, it shall record this determination and shall certify the determination to the supervisors of the district. In making this determination, the commission shall give due regard and weight to the attitudes of the landowners and land occupiers of lands lying within the defined boundaries, the number of landowners eligible to vote in the referendum who have voted, the proportion of the votes cast in the referendum in favor of the termination of the district to the total number of votes cast, and any other economic and social factors relevant to such determination; provided, that the commission shall not determine that the operation of the proposed district within the defined boundaries is administratively practicable and feasible if a majority of the votes cast in the referendum upon the proposition of termination of the district were cast in favor of the termination of the district.
- (c) Upon receipt from the commission of a certification that the commission has determined that the continued operation of the district is not administratively practicable and feasible, the supervisors shall immediately terminate the affairs of the district. The supervisors shall dispose of all property belonging to the district at public auction and shall pay the proceeds to the department of agriculture for use in supporting the costs of soil and water conservation in the district territory. The supervisors shall then file a verified application with the secretary of state for the discontinuance of the district, and transmit with the application the certificate of the commission determining that the continued operation of the district is not administratively practicable and feasible. The application must recite that the district's property has been disposed of and the proceeds paid to the department of agriculture and set forth a full accounting of such property and proceeds. The secretary of state shall issue to the supervisors a certificate of dissolution and record the certificate in an appropriate book of record in the secretary of state's office.
- (d) Upon issuance of a certificate of dissolution by the secretary of state, all ordinances and rules previously adopted and in force within the districts are of no further force and effect. All contracts to which the district or its supervisors are parties must be terminated in writing as provided in the contract.
§ 43-14-219. Notice. - For purposes of the provisions of §§ 43-14-207, 43-14-210, 43-14-214, and 43-14-218 requiring notice, the notice must be published twice, with an interval of at least seven (7) days between the two (2) publication dates, in a newspaper or other publication of general circulation within the appropriate area, or, if no such publication of general circulation is available, by posting at a reasonable number of conspicuous places within the appropriate area to include, where possible, posting at public places where it may be customary to post notices concerning county or municipal affairs generally. At any hearing held pursuant to such notice at the time and place designated in the notice, adjournment may be made from time to time without the necessity of renewing the notice for the adjourned dates.
Part 3 Soil Conservation Associations § 43-14-301. [Repealed]
History (5)
- Acts 1937 (2nd E. S.), ch. 5, § 2
- C. Supp. 1950, § 552.14 (Williams, § 584.10)
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A. (orig. ed.), § 43-1601
- repealed by Acts 2021, ch. 203, § 3, effective April 22, 2021.
§ 43-14-302. [Repealed]
History (4)
- Acts 1937 (2nd E. S.), ch. 5, § 2-A, as added by Acts 1937 (3rd E. S.), ch. 5, § 2
- C. Supp. 1950, § 552.15 (Williams, § 584.10a)
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A. (orig. ed.), § 43-1602.
§ 43-14-303. [Repealed]
History (4)
- Acts 1937 (2nd E. S.), ch. 5, § 2-B, as added by Acts 1937 (3rd E. S.), ch. 5, § 3
- C. Supp. 1950, § 552.16 (Williams, § 584.10b)
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A. (orig. ed.), § 43-1603.
§ 43-14-304. [Repealed]
History (4)
- Acts 1937 (2nd E. S.), ch. 5, § 3
- C. Supp. 1950, § 552.17 (Williams, § 584.11)
- T.C.A. (orig. ed.), § 43-1604
- Acts 2004, ch. 517, § 7.
§ 43-14-305. [Repealed]
History (5)
- Acts 1937 (2nd E. S.), ch. 5, § 4
- C. Supp. 1950, § 552.18 (Williams, § 584.12)
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A. (orig. ed.), § 43-1605
- Acts 2004, ch. 517, § 8.
§ 43-14-306. [Repealed]
History (4)
- Acts 1937 (2nd E. S.), ch. 5, § 5
- C. Supp. 1950, § 552.19 (Williams, § 584.13)
- impl. am. Acts 1978, ch. 934, §§ 7, 36
- T.C.A. (orig. ed.), § 43-1606.
§ 43-14-307. [Repealed]
History (3)
- Acts 1937 (2nd E. S.), ch. 5, § 6
- C. Supp. 1950, § 552.20 (Williams, § 584.14)
- T.C.A. (orig. ed.), § 43-1607.
§ 43-14-308. [Repealed]
History (4)
- Acts 1937 (2nd E. S.), ch. 5, § 7
- C. Supp. 1950, § 552.21 (Williams, § 584.15)
- T.C.A. (orig. ed.), § 43-1608
- Acts 2004, ch. 517, § 9.
Chapter 15 Contracts to Raise and Sell Farm Products § 43-15-101. Contracts for period not exceeding three years authorized. - Any person may enter into contract with natural persons or corporations, whereby the person, for a period of one (1) or more years, not exceeding three (3) years, will plant, cultivate, and harvest on such person's farm or plantation any particular crop, either of wheat, corn, or tobacco, or other agricultural product; will plant and cultivate such acreage as the parties may agree; and will prepare it for market, sale, and shipment in any particular manner to be agreed upon as useful, proper, or necessary for the purpose.
History (4)
- Acts 1907, ch. 155, § 1
- Shan., § 3193a4
- mod. Code 1932, § 7807
- T.C.A. (orig. ed.), § 43-1701.
§ 43-15-102. Irrevocable appointment of exclusive agent to sell farm products. - (a) The first person may appoint or designate the other person with whom the first person may contract as the first person's agent; and may invest the agent with authority to decide when and at what price or prices the farm products shall be sold and may appoint the agent the sole and exclusive agent to sell the products.
- (b) Such farm products shall not be sold by the owner independent of the agent, or through or by any other agent, and they shall not be delivered for storage to any bailee or depository other than a designated bailee or depository of the agent.
- (c) Such agency shall be irrevocable for the time for which it was by the parties entered into.
History (4)
- Acts 1907, ch. 155, § 2
- Shan., § 3193a 5
- mod. Code 1932, § 7808
- T.C.A. (orig. ed.), § 43-1702.
§ 43-15-103. Contracts for costs and expenses of agency to be borne proportionately and ratably. - If more than one (1) person appoints or designates the same agent, under similar contracts, with the same powers, the persons may agree in the contracts that they will bear and pay proportionately and ratably, according to the value of their several crops, the costs and expenses of the agency, including warehousing, storing, handling, preparing the crops for market, insurance, and all other legitimate expenses incurred in the handling and sale of the crops.
History (4)
- Acts 1907, ch. 155, § 3
- Shan., § 3193a6
- mod. Code 1932, § 7809
- T.C.A. (orig. ed.), § 43-1703.
§ 43-15-104. Contracts are binding, irrevocable, and enforceable — Damages for breach. - Every such contract shall be binding and irrevocable by either party, and may be specifically enforced in equity; or, if breached by either party, the injured party may bring suit for damages at law, if the party elects to do so.
History (4)
- Acts 1907, ch. 155, § 4
- Shan., § 3193a7
- Code 1932, § 7810
- T.C.A. (orig. ed.), § 43-1704.
Chapter 16 Cooperative Marketing Associations § 43-16-101. Short title. - For the purpose of brevity and convenience, this chapter shall be known and may be cited as the “Cooperative Marketing Law.”
History (4)
- Acts 1923, ch. 100, § 2
- Shan. Supp., § 2534a27
- Code 1932, § 3785
- T.C.A. (orig. ed.), § 43-1801.
§ 43-16-102. Purpose of chapter. - This chapter is enacted in order to promote, foster, and encourage the intelligent and orderly marketing of agricultural products and other products of the soil, through cooperation; to eliminate speculation and waste; to make the distribution of agricultural products between producer and consumer as direct as can be efficiently done; to stabilize the marketing of agricultural products; and to provide for the organization and incorporation of cooperative marketing associations for the marketing of such products.
History (4)
- Acts 1923, ch. 100, § 1
- Shan. Supp., § 2534a 26
- Code 1932, § 3784
- T.C.A. (orig. ed.), § 43-1802.
§ 43-16-103. Chapter definitions. - (a) As used in this chapter, unless the context otherwise requires:
- (1) “Agricultural products” includes horticultural, viticultural, forestry, dairy, livestock, poultry, bee and any farm products;
- (2) “Association” means any corporation organized under this chapter;
- (3) “Member” includes actual members of associations without capital stock, and holders of common stock in associations organized with capital stock; and
- (4) “Person” includes an individual, firm, partnership, corporation, and association.
- (b) An association organized under this chapter shall be deemed “nonprofit,” inasmuch as it is not organized to make profit for itself, as such, or for its members, as such, but only for its members as producers.
History (4)
- Acts 1923, ch. 100, § 2
- Shan. Supp., § 2534a27
- Code 1932, § 3785
- T.C.A. (orig. ed.), § 43-1803.
§ 43-16-104. Nonprofit cooperative association — Persons entitled to form. - Eleven (11) or more persons, a majority of whom are residents of this state, engaged in the production of agricultural products, may form a nonprofit, cooperative association, with or without capital stock, under this chapter.
History (4)
- Acts 1923, ch. 100, § 3
- Shan. Supp., § 2534a28
- Code 1932, § 3786
- T.C.A. (orig. ed.), § 43-1804.
§ 43-16-105. Activities in which authorized to engage. - An association may be organized to engage in any activity:
- (1) In connection with the marketing or selling of the agricultural products of its members, or with the harvesting, preserving, drying, processing, canning, packing, grading, storing, handling, shipping or utilization of such products, or the manufacturing or marketing of the by-products of such products;
- (2) In connection with the manufacturing, selling, or supplying to its members of machinery, equipment, or supplies;
- (3) In the financing of the above enumerated activities; or
- (4) In any one (1) or more of the activities specified in this section.
History (4)
- Acts 1923, ch. 100, § 4
- Shan. Supp., § 2534a29
- Code 1932, § 3787
- T.C.A. (orig. ed.), § 43-1805.
§ 43-16-106. Preliminary inquiry as to probable success. - Every group of persons contemplating the organization of an association under this chapter is urged to communicate with the college of agricultural sciences and natural resources, University of Tennessee, which will inform the group whatever the survey of the marketing conditions affecting the commodities proposed to be handled may indicate regarding probable success.
History (4)
- Acts 1923, ch. 100, § 5
- Shan. Supp., § 2534a30
- Code 1932, § 3788
- T.C.A. (orig. ed.), § 43-1806.
§ 43-16-107. Recognition that farmers need special instruction data in marketing their products. - It is recognized that:
- (1) Agriculture is characterized by individual production in contrast to the group or factory system that characterizes other forms of industrial production;
- (2) The ordinary form of corporate organization permits industrial groups to combine for the purpose of group production and the ensuing group marketing and that the public has an interest in permitting farmers to bring their industry to the high degree of efficiency and merchandising skill evidenced in the manufacturing industries;
- (3) The public interest urgently needs to prevent the migration from the farm to the city in order to keep up farm production and to preserve the agricultural supply of the nation; and
- (4) The public interest demands that the farmer be encouraged to attain a superior and more direct system of marketing in the substitution of merchandising for the blind, unscientific, and speculative selling of crops; and
- (5) That for this purpose, the farmers should secure special guidance and instructive data from the college of agricultural sciences and natural resources, University of Tennessee.
History (4)
- Acts 1923, ch. 100, § 5
- Shan. Supp., § 2534a31
- Code 1932, § 3789
- T.C.A. (orig. ed.), § 43-1807.
§ 43-16-108. Powers of incorporated association. - Each association incorporated under this chapter has the power to:
- (1) Engage in activity in connection with the marketing, selling, preserving, harvesting, drying, processing, manufacturing, canning, packing, grading, storing, handling, or utilization of any agricultural products produced or delivered to it by its members, or the manufacturing, or marketing of the by-products thereof; or any activity in connection with the purchase, hiring, or use by its members of supplies, machinery, or equipment; or in the financing of any such activities; or in any one (1) or more of the activities specified in this section; and the association may also buy, sell and deal in agricultural products of nonmembers to an amount not greater in value than such as are handled by it for its members;
- (2) Borrow money and make advance payments and advances to members;
- (3) Act as the agent or representative of any member or members in any of the above mentioned activities;
- (4) Purchase or otherwise acquire, and hold, own, and exercise all rights or ownership in, and sell, transfer, or pledge, or guarantee the payment of dividends or interest on or the retirement or redemption of shares of the capital stock or bonds of any corporation or association engaged in any related activity or in the warehousing or handling or marketing of any of the products handled by the association;
- (5) Establish reserves and invest the funds thereof in bonds or in such other property as may be provided in the bylaws;
- (6) Buy, hold, and exercise all privileges of ownership over such real or personal property as may be necessary or convenient for the conduct and operation of any business of the association, or incidental thereto;
- (7) Establish, secure, own and develop patents, trademarks and copyrights; and
- (8) Do each and everything necessary, suitable or proper for the accomplishment of any one (1) of the purposes or the attainment of any one (1) or more of the subjects, enumerated in this section, or conducive to or expedient for the interest or benefit of the association, and contract accordingly; and, in addition, exercise and possess all powers, rights and privileges necessary or incidental to the purposes for which the association is organized or to the activities in which it is engaged; and, in addition, any other rights, powers, and privileges granted by the laws of this state to ordinary corporations, except those inconsistent with the express provisions of this chapter, and to do any such thing anywhere.
History (6)
- Acts 1923, ch. 100, § 6
- Shan. Supp., § 2534a32
- Code 1932, § 3790
- Acts 1933, ch. 93, § 1
- C. Supp. 1950, § 3790
- T.C.A. (orig. ed.) § 43-1808.
§ 43-16-109. Members — Qualifications. - (a) Under the terms and conditions prescribed in the bylaws adopted by it, an association may admit as members, or issue common stock to, only persons engaged in the production of the agricultural products to be handled by or through the association, including the lessees and tenants of land used for the production of such products and any lessors and landlords who receive as rent all or any part of the crop raised on the leased premises.
- (b) If a member of a nonstock association is other than a natural person, that member may be represented by any individual, associate, officer, or manager, or member thereof, duly authorized in writing.
- (c) One (1) association organized under this chapter may become a member or stockholder of any other association or associations organized under this chapter.
History (4)
- Acts 1923, ch. 100, § 7
- Shan. Supp., § 2534a33
- Code 1932, § 3791
- T.C.A. (orig. ed.), § 43-1809.
§ 43-16-110. Articles of incorporation — Preparing and filing — Contents. - Each association formed under this chapter must prepare and file articles of incorporation, setting forth:
- (1) The name of the association;
- (2) The purpose for which it is formed;
- (3) The place where its principal business will be transacted;
- (4) The duration of the association, if other than perpetual. If the charter of any association organized under this chapter provides for a term of existence, not exceeding fifty (50) years, such charter is deemed to be amended to provide that the duration of the association is perpetual, unless a majority of the members of such association vote to limit the duration of the association to some other period of time in accordance with title 48, chapter 3; provided, that in no event may the members so amend the charter of an association that has been in existence for more than fifty (50) years;
- (5) The number of directors of the association, which must be not less than five (5) and may be any number in excess of five (5); the term of office of such directors; and the names and addresses of those who are to serve as incorporating directors for the first term, and/or until the election and qualification of their successors;
- (6) If organized without capital stock, whether the property rights and interest of each member shall be equal or unequal; and if unequal, the general rule or rules applicable to all members by which the property rights and interests, respectively, of each member may and shall be determined and fixed; and provision for the admission of new members who shall be entitled to share in the property of the association with the old members, in accordance with such general rule or rules;
- (7) If organized with capital stock, the amount of stock and the number of shares into which it is divided and the par value thereof; and
- (8) The street address and zip code of the association's initial registered office in this state, the county in which the office is located, and the name of its initial registered agent at that office.
History (7)
- Acts 1923, ch. 100, § 8
- Shan. Supp., § 2534a34
- Code 1932, § 3792
- T.C.A. (orig. ed.), § 43-1810
- Acts 1981, ch. 27, § 1
- 1991, ch. 243, § 1
- 2015, ch. 323, § 1.
§ 43-16-111. Capital stock — Articles specifying division into preferred and common stock. - The capital stock may be divided into preferred and common stock. If so divided, the articles of incorporation must contain a statement of the number of shares of stock to which preference is granted and the number of shares of stock to which no preference is granted, and the nature and definite extent of the preference and privileges granted to each.
History (4)
- Acts 1923, ch. 100, § 8
- Shan. Supp., § 2534a35
- Code 1932, § 3793
- T.C.A. (orig. ed.), § 43-1811.
§ 43-16-112. Articles to be signed, acknowledged, and filed — Prima facie evidence of incorporation. - The articles must be signed by the incorporators; and when filed, the articles of incorporation, or certified copies thereof, shall be received in all the courts of this state and other places as prima facie evidence of the due incorporation of the association.
History (5)
- Acts 1923, ch. 100, § 8
- Shan. Supp., § 2534a36
- mod. Code 1932, § 3794
- T.C.A. (orig. ed.), § 43-1812
- Acts 1991, ch. 243, § 2.
§ 43-16-113. Amendment of articles of incorporation. - (a) An amendment, including a conversion to a general nonprofit corporation pursuant to § 48-61-109, must be approved by two-thirds (⅔) of the directors. An amendment changing the name of the association or its principal place of business must be adopted by the association if notice of the board of directors meeting to consider the amendment is given to the members as provided in § 43-16-115. All other amendments must also be adopted by a vote representing a majority of all the members of the association as provided in this section.
- (b)
- (1) If, at a meeting of the members of the association to which a proposed amendment has been submitted, a majority of the members are not present, then those present and members voting by any method allowed in the organization's bylaws, whether or not a quorum is present, may adjourn the meeting to a time and place certain.
- (2) Prior to the convening of the adjourned meeting, notice of the adjourned meeting must be given to the members solely to vote and count ballots received by any method allowed in the organization's bylaws, including in person, by proxy, mail, or an electronic method, on the proposed amendment. The notice must state the time, place, and purpose of the adjourned meeting.
- (3) When the meeting reconvenes, the members represented by any method allowed by the organization's bylaws, including a member being present in person, and those voting by proxy, mail, or an electronic method, constitute the quorum, and may take action on the proposed amendment by a majority vote of those represented, even if fewer than a majority of the total membership of the association is present.
History (7)
- Acts 1923, ch. 100, § 9
- Shan. Supp., § 2534a37
- mod. Code 1932, § 3795
- Acts 1976, ch. 753, § 1
- T.C.A. (orig. ed.), § 43-1813
- Acts 2015, ch. 323, § 2
- 2023, ch. 97, § 1.
§ 43-16-114. Code of bylaws — Provisions. - Each association incorporated under this chapter must, within thirty (30) days after its incorporation, adopt for its government and management, a code of bylaws, not inconsistent with the powers granted by this chapter. A majority vote of the members or stockholders, or their written assent, is necessary to adopt such bylaws. Each association, under its bylaws, may provide for any or all of the following matters:
- (1) The number of stockholders or members constituting a quorum;
- (2) The right of members or stockholders to vote by proxy or by mail, or both; and the conditions, manner, form, and effects of such votes;
- (3) The number of directors constituting a quorum;
- (4) The qualifications, compensation and duties and terms of office of directors and officers; time of their election and the mode and manner of giving notice thereof;
- (5) Penalties for violations of the bylaws;
- (6) The amount of entrance, organization, and membership fees, if any; the manner and method of collection of such fees; and the purposes for which they may be used;
- (7) The amount that each member or stockholder shall be required to pay annually or from time to time, if at all, to carry on the business of the association; the charge, if any, to be paid by each member or stockholder for services rendered by the association and the time of payment and the manner of collection; and the marketing contract between the association and its members or stockholders, which every member or stockholder may be required to sign; and
- (8) The number and qualification of members or stockholders of the association and the conditions precedent to membership or ownership of common stock; the method, time, and manner of permitting members to withdraw or the holders of common stock to transfer their stock; the manner of assignment and transfer of the interest of members and of the shares of common stock; the conditions upon which and the time when membership of any member shall cease; the automatic suspension of the rights of a member when the member ceases to be eligible to membership in the association; and the mode, manner and effect of the expulsion of a member; the manner of determining the value of a member's interest and provision for its purchase by the association upon the death or withdrawal of a member or stockholder, or upon the expulsion of a member or forfeiture of the member's membership, or, at the option of the association, the purchase at a price fixed by conclusive appraisal by the board of directors. In case of the withdrawal or expulsion of a member, the board of directors shall equitably and conclusively appraise the member's property interests in the association and shall fix the amount thereof in money, which shall be paid to the member within one (1) year after such expulsion or withdrawal.
History (4)
- Acts 1923, ch. 100, § 10
- Shan. Supp., § 2534a38
- mod. Code 1932, § 3796
- T.C.A. (orig. ed.), § 43-1814.
§ 43-16-115. Regular and special meetings — Notice — Provisions as to notice. - In its bylaws, each association shall provide for one (1) or more regular meetings annually. The board of directors shall have the right to call a special meeting at any time; and ten percent (10%) of the members or stockholders may file a petition stating the specific business to be brought before the association and demand a special meeting at any time. A meeting must thereupon be called by the directors. Notice of all meetings, together with a statement of the purposes thereof, shall be mailed to each member at least ten (10) days prior to the meeting; provided, that the bylaws may require instead that notice may be given by publication in a newspaper of general circulation, published at the principal place of business of the association.
History (4)
- Acts 1923, ch. 100, § 11
- Shan. Supp., § 2534a39
- Code 1932, § 3797
- T.C.A. (orig. ed.), § 43-1815.
§ 43-16-116. Management by directors — District directors — Bylaw provisions as to selection and qualifications. - (a) The affairs of the association shall be managed by a board of not less than five (5) directors, elected by the members or stockholders from their own number.
- (b) The bylaws may provide that the territory in which the association has members shall be divided into districts and that the directors shall be elected according to these districts, either directly or by district delegates elected by the members in that district. In such a case, the bylaws shall specify the number of directors to be elected by each district, the manner and method of reapportioning the directors and of redistricting the territory covered by the association. The bylaws may provide that primary elections shall be held in each district to elect the directors apportioned to the districts, and that the result of all such primary elections may be ratified by the next regular meeting of the association or may be considered final as to the association.
- (c) The bylaws may provide that one (1) or more directors may be appointed by any public official or commission or by the other directors selected by the members or their delegates. Such directors shall represent primarily the interest of the general public in such associations. The directors so appointed need not be members or stockholders of the association, but shall have the same powers and rights as other directors. Such directors shall not number more than one fifth (⅕) of the entire number of directors.
History (4)
- Acts 1923, ch. 100, § 12
- Shan. Supp., § 2534a40
- Code 1932, § 3798
- T.C.A. (orig. ed.), § 43-1816.
§ 43-16-117. Remuneration of officers, directors, and committeemen. - An association may provide a fair remuneration for the time actually spent by its officers and directors in its service and for the service of the members of its executive committee.
History (4)
- Acts 1923, ch. 100, § 12
- Shan. Supp., § 2534a41
- Code 1932, § 3799
- T.C.A. (orig. ed.), § 43-1817.
§ 43-16-118. Directors not to be interested in contracts for profit — Directors occupying positions in association. - No director, during that director's term of office, shall be a party to a contract for profit with the association differing in any way from the business relations accorded regular members or holders of common stock of the association or others, or differing from terms generally current in that district. The bylaws may provide that no director shall occupy any position in the association, except the president and secretary, on regular salary or substantially full-time pay.
History (4)
- Acts 1923, ch. 100, § 12
- Shan. Supp., § 2534a42
- Code 1932, § 3800
- T.C.A. (orig. ed.), § 43-1818.
§ 43-16-119. Executive committee and its functions. - The bylaws may provide for an executive committee and may allot to such committee all the functions and powers of the board of directors, subject to the general direction and control of the board.
History (4)
- Acts 1923, ch. 100, § 12
- Shan. Supp., § 2534a43
- Code 1932, § 3801
- T.C.A. (orig. ed.), § 43-1819.
§ 43-16-120. Vacancies in board of directors — Filling. - When a vacancy on the board of directors occurs other than by expiration of term, the remaining members of the board, by a majority vote, shall fill the vacancy, unless the bylaws provide for an election of directors by district stockholders. In that case, the board of directors shall immediately call a special meeting of the members or stockholders in that district to fill the vacancy.
History (4)
- Acts 1923, ch. 100, § 12
- Shan. Supp., § 2534a44
- Code 1932, § 3802
- T.C.A. (orig. ed.), § 43-1820.
§ 43-16-121. Officers elected by directors — Treasurer. - The directors shall elect from their number a president and one (1) or more vice presidents. They shall also elect a secretary and a treasurer, who need not be directors or members of the association; and they may combine the two (2) latter offices and designate the combined office as secretary-treasurer; or unite both functions and titles in one (1) person. The treasurer may be a bank or any depository, and as such, shall not be considered as an officer, but as a function of the board of directors. In that case, the secretary shall perform the usual accounting duties of the treasurer, excepting that the funds shall be deposited only as and where authorized by the board of directors.
History (4)
- Acts 1923, ch. 100, § 13
- Shan. Supp., § 2534a45
- Code 1932, § 3803
- T.C.A. (orig. ed.), § 43-1821.
§ 43-16-122. Bonds — Of whom required. - Every officer, employee, and agent handling funds or negotiable instruments or property of or for any association created under this chapter shall be required to execute and deliver adequate bond for the faithful performance of that person's duties and obligations.
History (4)
- Acts 1923, ch. 100, § 14
- Shan. Supp., § 2534a46
- Code 1932, § 3804
- T.C.A. (orig. ed.), § 43-1822.
§ 43-16-123. Certificate of membership. - A member of an association established without capital stock who has paid the membership fee in full shall receive a certificate of membership.
History (4)
- Acts 1923, ch. 100, § 15
- Shan. Supp., § 2534a47
- Code 1932, § 3805
- T.C.A. (orig. ed.), § 43-1822.
§ 43-16-124. Stock — Issuance upon payment — Voting right unaffected where held as security. - No association shall issue stock to a member until it has been fully paid for. The promissory notes of the members may be accepted by the association as full or partial payment. The association shall hold the stock as security for the payment of the note; but such retention as security shall not affect the member's right to vote.
History (4)
- Acts 1923, ch. 100, § 15
- Shan. Supp., § 2534a48
- Code 1932, § 3806
- T.C.A. (orig. ed.), § 43-1824.
§ 43-16-125. Liability of members for debts. - No member shall be liable for the debts of the association to an amount exceeding the sum remaining unpaid on the member's membership fee or the member's subscription to the capital stock, including any unpaid balance on any promissory notes given in payment of that amount.
History (4)
- Acts 1923, ch. 100, § 15
- Shan. Supp., § 2534a49
- Code 1932, § 3807
- T.C.A. (orig. ed.), § 43-1825.
§ 43-16-126. Member or stockholder entitled to only one vote. - No member or stockholder shall be entitled to more than one (1) vote, regardless of the number of shares of common stock owned by that person.
History (4)
- Acts 1923, ch. 100, § 15
- Shan. Supp., § 2534a51
- Code 1932, § 3809
- T.C.A. (orig. ed.), § 43-1827.
§ 43-16-127. Preferred stock — Redemption or retirement. - Any association organized with stock under this chapter may issue preferred stock, with or without the right to vote. Preferred stock may be sold to any person, member or nonmember, and may be redeemable or retireable by the association on such terms and conditions as may be provided for by the articles of incorporation and printed on the face of the certificate.
History (4)
- Acts 1923, ch. 100, § 15
- Shan. Supp., § 2534a52
- Code 1932, § 3810
- T.C.A. (orig. ed.), § 43-1828.
§ 43-16-129. Purchase of its common stock by association. - The association may, at any time, as specified in the bylaws, except when the debts of the association exceed fifty percent (50%) of the assets of the association, buy in or purchase its common stock at the book value of the common stock, as conclusively determined by the board of directors, and pay for it in cash within one (1) year after the purchase.
History (4)
- Acts 1923, ch. 100, § 15
- Shan. Supp., § 2534a54
- Code 1932, § 3812
- T.C.A. (orig. ed.), § 43-1830.
§ 43-16-130. Removal of officers or directors. - Any member may bring charges against an officer or director by filing them in writing with the secretary of the association, together with a petition signed by five percent (5%) of the members, requesting the removal of the officer or director in question. The removal shall be voted upon at the next regular or special meeting of the association and, by a vote of a majority of the members, the association may remove the officer or director, and fill the vacancy. The officer or director against whom the charges have been brought shall be informed in writing of the charges previous to the meeting and shall have an opportunity at the meeting to be heard in person or by counsel and to present witnesses; and the person or persons bringing the charges against the officer or director shall have the same opportunity.
History (4)
- Acts 1923, ch. 100, § 16
- Shan. Supp., § 2534a55
- Code 1932, § 3813
- T.C.A. (orig. ed.), § 43-1831.
§ 43-16-131. Procedure for removal of directors elected in a district. - In case the bylaws provide for election of directors by districts with primary elections in each district, then the petition for removal of a director must be signed by twenty percent (20%) of the members residing in the district from which the director was elected. The board of directors must call a special meeting of the members residing in that district to consider the removal of the directors; and by a vote of the majority of the members of that district, the director in question shall be removed from office.
History (4)
- Acts 1923, ch. 100, § 16
- Shan. Supp., § 2534a56
- Code 1932, § 3814
- T.C.A. (orig. ed.), § 43-1832.
§ 43-16-132. Referendum of policy matters upon demand to entire membership. - Upon demand of one third (⅓) of the entire board of directors, made immediately and so recorded at the same meeting at which the original motion was passed, any matter of policy that has been approved or passed by the board must be referred to the entire membership or the stockholders for decision at the next special or regular meeting; and a special meeting may be called for the purpose.
History (4)
- Acts 1923, ch. 100, § 17
- Shan. Supp., § 2534a57
- Code 1932, § 3815
- T.C.A. (orig. ed.), § 43-1833.
§ 43-16-133. Marketing contracts with association. - The association and its members may make and execute marketing contracts, requiring the members to sell, for any period of time, not over ten (10) years, all or any specified part of their agricultural products or specified commodities exclusively to or through the association, or any facilities to be created by the association. If they contract a sale to the association, it shall be conclusively held that title to the products passes absolutely and unreservedly, except for recorded and statutory liens, to the association upon delivery. The contract may provide, among other things, that the association may sell or resell the products delivered by its members, with or without taking title thereto, and pay over to its members the resale price, after deducting all necessary selling, overhead, and other costs and expenses, including interest or dividends on stock, not exceeding eight percent (8%) per annum, and reserves for retiring the stock, if any; and other proper reserves; and/or any other deductions.
History (4)
- Acts 1923, ch. 100, § 18
- Shan. Supp., § 2534a58
- Code 1932, § 3816
- T.C.A. (orig. ed.), § 43-1834.
§ 43-16-134. Provisions of marketing contracts — Liquidated damages — Injunction against breach. - (a) The bylaws or the marketing contract may fix, as liquidated damages, specific sums to be paid by the member or stockholder to the association upon the breach by the member or stockholder of any provision of the marketing contract regarding the sale or delivery or withholding of products, and may further provide that the member will pay all costs, premiums for bonds, expenses, and fees, in case any action is brought upon the contract by the association. Any such provisions shall be valid and enforceable in the courts of this state. Such clauses providing for liquidated damages shall be enforceable as such and shall not be regarded as penalties.
- (b) In the event of any such breach or threatened breach of the marketing contract by a member, the association shall be entitled to an injunction to prevent the further breach of the contract and to a decree of specific performance thereof. Pending the adjudication of such an action and upon filing a verified complaint showing the breach or threatened breach, and upon filing a sufficient bond, the association shall be entitled to a temporary restraining order and preliminary injunction against the member.
History (4)
- Acts 1923, ch. 100, § 19
- Shan. Supp., § 2534a59
- Code 1932, § 3817
- T.C.A. (orig. ed.), § 43-1835.
§ 43-16-135. Purchase of property with preferred stock. - Whenever an association, organized under this chapter with preferred capital stock, purchases the stock or any property, or any interest in any property of any person, it may discharge the obligations so incurred, wholly or in part, by exchanging for the acquired interest, shares of its preferred capital stock to an amount that at par value would equal the fair market value of the stock or interest so purchased, as determined by the board of directors. In that case, the transfer to the association of the stock or interest purchased shall be equivalent to payment in cash for the shares of stock issued.
History (4)
- Acts 1923, ch. 100, § 20
- Shan. Supp., § 2534a60
- Code 1932, § 3818
- T.C.A. (orig. ed.), § 43-1836.
§ 43-16-137. Conflicting laws do not apply. - Any law that is in conflict with this chapter shall be construed as not applying to the associations provided for in this chapter.
History (4)
- Acts 1923, ch. 100, § 22
- Shan. Supp., § 2534a62
- Code 1932, § 3820
- T.C.A. (orig. ed.), § 43-1838.
§ 43-16-138. Exemptions of agricultural products apply, though in possession of association. - Any exemptions whatsoever under all existing laws applying to agricultural products in the possession or under the control of the individual producer shall apply similarly and completely to such products delivered by its former members in the possession or under the control of the association.
History (4)
- Acts 1923, ch. 100, § 22
- Shan. Supp., § 2534a63
- Code 1932, § 3821
- T.C.A. (orig. ed.), § 43-1839.
§ 43-16-139. Association may be interested in other like associations. - An association may organize, form, operate, own, control, have an interest in, own stock of, or be a member of any other corporation or corporations, with or without capital stock, and engaged in preserving, drying, processing, canning, packing, storing, handling, shipping, utilizing, manufacturing, marketing, or selling of the agricultural products handled by the association or the by-products of such products.
History (4)
- Acts 1923, ch. 100, § 23
- Shan. Supp., § 2534a64
- Code 1932, § 3822
- T.C.A. (orig. ed.), § 43-1840.
§ 43-16-140. Warehousing corporations issuing warehouse receipts to association or its members — Discrimination prohibited. - If those corporations are warehousing corporations, they may issue legal warehouse receipts to the association against the commodities delivered by it or to any other person, and the legal warehouse receipts shall be considered as adequate collateral to the extent of the usual and current value of the commodity represented by the receipts. In case the warehouse is licensed or licensed and bonded under the laws of this or any other state or the United States, its warehouse receipt delivered to the association on commodities of the association or its members, or delivered by the association or its members, shall not be challenged or discriminated against because of ownership or control, wholly or in part, by the association.
History (4)
- Acts 1923, ch. 100, § 23
- Shan. Supp., § 2534a65
- Code 1932, § 3823
- T.C.A. (orig. ed.), § 43-1841.
§ 43-16-141. Association may contract with other cooperative associations. - (a) Any association may, upon resolution adopted by its board of directors, enter into all necessary and proper contracts and agreements, and make all necessary and proper stipulations, agreements, and contracts and arrangements with any other cooperative corporation, association, or associations, formed in this or in any other state, for the cooperative and more economical carrying on of its business or any part or parts of its business.
- (b) Any two (2) or more associations may, by agreement between them, unite in employing and using or may separately employ and use the same personnel, methods, means and agencies for carrying on and conducting their respective businesses.
History (4)
- Acts 1923, ch. 100, § 24
- Shan. Supp., § 2534a66
- Code 1932, § 3824
- T.C.A. (orig. ed.), § 43-1842.
§ 43-16-142. Associations of other states upon compliance with laws as to foreign corporations doing business in this state. - Any corporation or association organized under generally similar laws of another state shall be allowed to carry on any proper activities, operations or functions in this state upon compliance with the general regulations applicable to foreign corporations desiring to do business in this state, and the payment into the office of the secretary of state the same fees that are required to be paid under title 48, chapter 1, part 13 [repealed], and by paying all other taxes that other foreign corporations are required to pay in Tennessee, and all contracts that could be made by any association, incorporated under this chapter, made by or with such association, shall be legal and valid and enforceable in this state with all of the remedies set forth in this chapter.
History (8)
- Acts 1923, ch. 100, § 25
- Shan. Supp., § 2534a67
- Code 1932, § 3825
- Acts 1941, ch. 33, § 1
- 1949, ch. 158, § 1
- C. Supp. 1950, § 3825
- impl. am. Acts 1968, ch. 523
- T.C.A. (orig. ed.), § 43-1843.
§ 43-16-143. Marketing contracts do not constitute conspiracy, combination, illegal monopoly, or unlawful restraint of trade. - No association organized under this chapter and complying with the terms of this chapter shall be deemed to be a conspiracy or a combination in restraint of trade or an illegal monopoly, or an attempt to lessen competition or to fix prices arbitrarily; nor shall the marketing contracts and agreements between the association and its members or any agreements authorized in this chapter be considered illegal as such or in unlawful restraint of trade or as part of a conspiracy or combination to accomplish an improper or illegal purpose.
History (4)
- Acts 1923, ch. 100, § 27
- Shan. Supp., § 2534a69
- Code 1932, § 3826
- T.C.A. (orig. ed.), § 43-1844.
§ 43-16-144. General corporation laws applicable — Exception. - The general corporation laws and all powers and rights under those laws apply to the associations organized under this chapter, except where such provisions are in conflict or inconsistent with the express provisions of this chapter.
History (4)
- Acts 1923, ch. 100, § 29
- Shan. Supp., § 2534a71
- Code 1932, § 3827
- T.C.A. (orig. ed.), § 43-1845.
§ 43-16-145. Annual fee in lieu of other taxes — Exception. - Each association organized under this chapter shall pay an annual fee of ten dollars ($10.00) only, in lieu of all franchise, license, corporation or other privilege taxes, or taxes or charges upon reserves held by it for members; provided, that if any association organized under this chapter sells to persons other than its own members any product or merchandise other than unmanufactured tobacco, livestock, poultry products, dairy products or any other farm products, such association shall be liable for any privilege tax with respect to such transactions or method of doing business imposed under the laws of Tennessee, other than franchise and excise taxes and corporation filing fees or charges upon reserves held by it for members.
History (6)
- Acts 1923, ch. 100, § 30
- Shan. Supp., § 2534a72
- Code 1932, § 3828
- Acts 1947, ch. 172, § 1
- C. Supp. 1950, § 3828
- T.C.A. (orig. ed.), § 43-1846.
§ 43-16-147. Combinations of existing corporations into associations — Amendment of charters. - Corporations not for profit, of this class, previously organized under the general incorporation laws or laws later enacted, are empowered to combine into associations upon such terms as may be provided and agreed upon, or by one corporation becoming a member of the other. Further, preexisting charters of the corporations are amended, under the power reserved to the general assembly, so as to bring same into conformity with this law, thus granting them the powers and imposing upon them the duties and liabilities set forth in this chapter.
History (4)
- Acts 1917, ch. 39, §§ 1, 2
- Shan. Supp., § 2534a74
- mod. Code 1932, § 3830
- T.C.A. (orig. ed.), § 43-1848.
§ 43-16-148. Corporations organized as subsidiaries of agricultural cooperative associations exempt from privilege taxes. - All corporations organized as subsidiaries and controlled by any agricultural cooperative association formed in accordance with the laws of this state shall not be considered corporations organized for profit and doing business in Tennessee, or subject to any privilege tax levied by any law as a tax for the privilege of doing business for profit in Tennessee, it being the legislative intent to exempt by this section all such subsidiary corporations controlled by agricultural cooperative associations, where any and all profits earned by such subsidiary corporations are paid over to or expended for the benefit of the agricultural cooperative associations, with the result that the activities carried on by the corporations eventually promote and benefit the agricultural interests of this state.
History (3)
- Acts 1939, ch. 168, § 1
- C. Supp. 1950, § 3830.1
- T.C.A. (orig. ed.), § 43-1849.
Chapter 17 Marketing of Pecans § 43-17-101. Purchasers of pecans for resale to keep records — Open to inspection — Exception. - (a) Any person purchasing pecans for the purpose of resale or processing from anyone selling pecans shall keep a well-bound book, in which that person shall promptly enter in ink the name and place of residence of all persons from whom that person buys pecans, followed by the date of purchase, number of pounds bought, the amounts paid, and how the payment was made, whether in cash or by check, whether they were owned or raised, or purchased by the seller, and on whose land the pecan trees were located when gathered. The entries are to be made in chronological order from day to day as the business is transacted. This book shall at all times be open to inspection by the police or other officers, or any person who may desire to see it, and shall be in good faith kept and preserved by dealers for convenient inspection.
- (b) This chapter shall not apply to purchase of pecans by retail merchants from wholesale distributors for sale at retail.
History (4)
- Acts 1947, ch. 174, § 1
- C. Supp. 1950, § 5755.28 (Williams, § 5753.14)
- modified
- T.C.A. (orig. ed.), § 43-1901.
§ 43-17-102. Written permission of landowner to sell — When to be shown. - Any person offering pecans for sale that the person did not raise or own without purchasing, or on whose lands the pecans were not grown, shall be required by the buyer or dealer in the pecans, before such buyer or dealer buys them, to show a written permission to sell them from the party owning the land on which the pecans were grown, unless the party offering the pecans for sale is a bona fide owner of the land, and the dealer may require proper identification of the person offering pecans for sale.
History (3)
- Acts 1947, ch. 174, § 2
- mod. C. Supp. 1950, § 5755.29 (Williams, § 5753.15)
- T.C.A. (orig. ed.), § 43-1902.
§ 43-17-104. Special right of action in owner of pecans sold without consent. - In addition to the punishment provided in § 43-17-103, and either before or after, and with or without, criminal prosecution as provided for in § 43-17-103, the owner of any pecans that are sold by another without the owner's consent can maintain and recover of any person buying the pecans, who fails to comply with §§ 43-17-101 and 43-17-102, a penalty of two hundred fifty dollars ($250), to be recovered by a civil suit in any court having jurisdiction of the amount in this state. That amount is to be recovered by the owner of any pecans, sold to any person without the owner's consent, where the buyer does not keep and permit to be inspected the record of the purchase, as provided in this chapter.
History (3)
- Acts 1947, ch. 174, § 4
- mod. C. Supp. 1950, § 5755.31 (Williams, § 5753.17)
- T.C.A. (orig. ed.), § 43-1904.
§ 43-17-105. Tenant's possession or sale prima facie evidence of landlord's title — Burden of proof of transfer. - (a) Possession and/or sale of pecans by any tenant of a landowner shall constitute prima facie evidence that such pecans are the property of such landowner and the burden of proof of transfer of ownership of the pecans shall rest with the tenant and/or purchaser from the tenant.
- (b) Any purchaser from a tenant or the immediate vendee of a tenant shall be liable to the landlord for the value of the pecans as in other cases of conversion, if the purchaser or vendee did not receive title.
History (3)
- Acts 1947, ch. 174, § 5
- mod. C. Supp. 1950, § 5755.32 (Williams, § 5753.18)
- T.C.A. (orig. ed.), § 43-1905.
Chapter 18 Sale of Cotton § 43-18-101. Record to be made of purchases of seed cotton, loose or unbaled cotton, or cotton seed. - Any person purchasing cotton seed or seed cotton from anyone selling cotton seed or seed cotton in bags or baskets or any other cotton not baled shall keep a book in which that person shall keep a record of all cotton and cotton seed bought, and shall promptly enter the name and residence of all persons from whom the person buys cotton or cotton seed, followed by date of purchase, number of pounds bought, the amount paid for cotton of each kind, how the payment was made, whether by cash or check, whether it was raised or purchased by the seller, on whose farm raised, whether seller is renter or sharecropper, if mortgaged or otherwise encumbered and to whom. The entries are to be made in chronological order from day to day as the business is transacted. This book shall at all times be open to inspection of the police or other officers, or any person who may desire to see the book, and shall be in good faith kept and preserved by such dealers for convenient inspection.
History (7)
- Acts 1903, ch. 525, § 1
- 1911, ch. 14, § 1
- Shan., §§ 6800a3, 6800a6
- Acts 1929, ch. 59, § 1
- mod. Code 1932, §§ 5754, 11264
- modified
- T.C.A. (orig. ed.), § 43-2001.
§ 43-18-102. Written permission to sell required — Exception. - Any person offering seed cotton for sale that the person did not personally raise, or on whose farm the cotton was not raised, shall be required by the buyer or dealer in the cotton to show a written permission from the party raising the cotton to sell it before buying, unless the party offering the cotton for sale is a bona fide owner of the cotton, and the dealer may require proper identification of the person offering it for sale.
History (4)
- Acts 1903, ch. 525, § 2
- Shan., § 6800a 4
- Code 1932, § 11265
- T.C.A. (orig. ed.), § 43-2002.
§ 43-18-103. Violation of § 43-18-101 or § 43-18-102 a misdemeanor — Penalty. - A violation of any of the provisions of § 43-18-101 or § 43-18-102 is a Class C misdemeanor.
History (6)
- Acts 1911, ch. 14, § 2
- Shan., § 6800a7
- Acts 1929, ch. 59, § 2
- mod. Code 1932, §§ 5755, 11266
- T.C.A. (orig. ed.), § 43-2003
- Acts 1989, ch. 591, § 113.
§ 43-18-104. Penalty recoverable by owner from purchaser not keeping the required record or not permitting inspection thereof. - In addition to the punishment provided in § 43-18-103, and either before or after, with or without criminal prosecution above provided for, the owner of any loose cotton or ginned cotton that is unbaled, that is sold by another without the owner's consent, can maintain and recover of any person buying such cotton who fails to comply with § 43-18-101 and § 43-18-102, a penalty of two hundred fifty dollars ($250), to be recovered by civil suit in any court having jurisdiction of the amount in this state. That amount is to be recovered by the owner of any cotton of the character described, sold to any person by any other than the owner without such owner's consent, where the buyer does not keep and permit to be inspected the record of the purchase provided for in this section and §§ 43-18-101 — 43-18-103.
History (4)
- Acts 1911, ch. 14, § 3
- Shan., § 6800a8
- Code 1932, § 11267
- T.C.A. (orig. ed.), § 43-2004.
§ 43-18-105. Persons other than producers or dealers buying or selling lint cotton under two hundred fifty pounds — Penalty. - (a) It is unlawful for any person who is not a grower or producer of cotton, or who is not engaged in the business of buying and selling cotton, to buy, sell or offer for sale, or possess for purposes of sale, any loose lint cotton or ginned cotton that is not in bales, in quantities less than two hundred fifty pounds (250 lbs.).
- (b) Any violation of this section is a Class C misdemeanor.
History (5)
- Acts 1917, ch. 88, §§ 1, 2
- Shan., §§ 6800a9, 6800a10
- Code 1932, §§ 11268, 11269
- T.C.A. (orig. ed.), § 43-2005
- Acts 1989, ch. 591, § 113.
§ 43-18-106. Additional penalty recoverable in qui tam action. - In addition to the punishment provided in § 43-18-105, and either before or after, with or without criminal prosecution, any person in interest can recover in such person's own name of any person buying loose or ginned cotton that is not baled, contrary to § 43-18-105, a penalty of two hundred fifty dollars ($250), to be recovered by civil suit in any court having jurisdiction of that amount.
History (4)
- Acts 1917, ch. 88, § 3
- Shan., § 6800a11
- Code 1932, § 11270
- T.C.A. (orig. ed.), § 43-2006.
§ 43-18-108. Hauling unbaled cotton between sunset and sunrise, where there is a lien, or undivided interest unlawful — Exception — Penalty. - (a) It is unlawful for any person to haul or carry over any highway any cotton in the seed or ginned, but not baled, on which there is a lien, mortgage, contract for supplies and merchandise, or an undivided interest, between the hours of sunset of any one (1) day and sunrise of the succeeding day; provided, that the provisions of this section shall not apply to any person or persons hauling cotton to the gin for the purpose of ginning it, or from their farms to their houses or barns; and provided, further, that this section shall not apply where the beneficiary of the lien consents in writing to the hauling.
- (b) Any person violating this section commits a Class C misdemeanor.
History (5)
- Acts 1901, ch. 3, §§ 1, 2
- Shan., §§ 6800a1, 6800a2
- Code 1932, §§ 11262, 11263
- T.C.A. (orig. ed.), § 43-2010
- Acts 1989, ch. 591, § 113.
§ 43-18-109. Liability of owner of gin or tobacco establishment for sale of product containing foreign objects. - If any person sells or otherwise disposes of cotton or tobacco fraudulently packed with wood, iron, rocks, dirt or other substance, the person at whose gin or establishment the cotton or tobacco was put up is deemed guilty of negligence, and shall, upon suit on behalf of any subsequent purchaser of the cotton or tobacco, pay double the value of the cotton or tobacco as damages, and also the cost of reshipping the cotton or tobacco from the market where the fraud was detected.
History (5)
- Acts 1859-1860, ch. 67, § 3
- Shan., § 6742
- Code 1932, § 11149
- T.C.A. (orig. ed.), § 43-2011
- Acts 1996, ch. 675, § 44.
Chapter 19 Tobacco Sales Part 1 General Provisions § 43-19-101. Warehouses — Persons operating. - Any person may open a warehouse for the inspection and sale of tobacco under the rules, regulations, and restrictions of this chapter.
History (4)
- Acts 1870-1871, ch. 65, § 2
- Shan., § 3379
- mod. Code 1932, § 6476
- T.C.A. (orig. ed.), § 43-2101.
§ 43-19-102. Proof of sufficiency of warehouse required. - Every person opening a warehouse for the inspection and sale of tobacco shall prove to the county clerk by the testimony of two (2) impartial witnesses known to the clerk to be well qualified, from knowledge and experience, that the person is the proprietor of a good and sufficient warehouse, situated so as to be exposed to no extraordinary risk from fire or flood, and furnished besides, with all the implements necessary to the accurate weighing and inspection of tobacco.
History (6)
- Acts 1870-1871, ch. 65, § 4
- impl. am. Acts 1877, ch. 109, § 1
- Shan., § 3380
- Code 1932, § 6477
- impl. am. Acts 1978, ch. 934, §§ 22, 36
- T.C.A. (orig. ed.), § 43-2102.
§ 43-19-103. Bond of tobacco warehouseman. - Such person shall also enter into bond, with good and sufficient security, to be approved by the county mayor, and payable to the state, in the sum of five thousand dollars ($5,000), conditioned to keep the warehouse in good condition and repair, so as effectually to protect the tobacco stored in the warehouse, that the person will not sell any tobacco that has been bought by the person or on the person's account, or purchase on such person's own account any tobacco stored in the warehouse, either directly or indirectly, and that the person will perform faithfully all the duties of warehouseman as prescribed by law.
History (7)
- Acts 1870-1871, ch. 65, § 4
- 1889, ch. 192, § 1
- Shan., § 3381
- Code 1932, § 6478
- impl. am. Acts 1978, ch. 934, §§ 16, 36
- T.C.A. (orig. ed.), § 43-2103
- Acts 2003, ch. 90, § 2.
§ 43-19-104. Fees uncollectible upon failure to give bond — Penalty for violations. - A proprietor who fails to execute a bond shall not be entitled to collect any fees on tobacco stored in the warehouse, under a penalty of one hundred dollars ($100) for each offense, to be recovered in the name of the state, one half (½) to go to the informer.
History (4)
- Acts 1870-1871, ch. 65, § 4
- Shan., § 3382
- Code 1932, § 6479
- T.C.A. (orig. ed.), § 43-2104.
§ 43-19-105. Suit on bond — Parties. - Any person aggrieved may sue on this bond for a breach thereof, in the name of the state, until the penalty is exhausted.
History (4)
- Acts 1870-1871, ch. 65, § 4
- Shan., § 3383
- Code 1932, § 6480
- T.C.A. (orig. ed.), § 43-2105.
§ 43-19-106. Warehouses to be floored and kept in repair. - (a) The proprietor shall fit up the warehouse with plank floors or skids, upon which to place the tobacco, so that the hogsheads may be at least four inches (4″) from the earth.
- (b) Any proprietor who fails to keep a warehouse in good repair, or to furnish it as in this section provided, shall forfeit two hundred dollars ($200) to the state, and is also liable upon the bond to an action for damages, at the instance of any planter or owner whose tobacco is injured.
History (4)
- Acts 1870-1871, ch. 65, § 6
- Shan., § 3384
- Code 1932, § 6481
- T.C.A. (orig. ed.), § 43-2106.
§ 43-19-107. Scales to be kept and tested. - The proprietor shall keep good and sufficient scales for weighing tobacco, which shall be tested at the beginning of each tobacco commerical year, and every three (3) months thereafter, by the keeper and sealer of weights for the county, and at any time when written application is made by two (2) or more planters or burghers.
History (4)
- Acts 1870-1871, ch. 65, § 7
- Shan., § 3385
- Code 1932, § 6482
- T.C.A. (orig. ed.), § 43-2107.
§ 43-19-108. Breaking irons for inspection, and screws for cooperage. - The proprietor shall also keep the necessary breaking irons for the proper inspection of tobacco, and screws for the proper cooperage and return of loose tobacco to the hogshead after inspection.
History (4)
- Acts 1870-1871, ch. 65, § 7
- Shan., § 3386
- Code 1932, § 6483
- T.C.A. (orig. ed.), § 43-2108.
§ 43-19-109. Attention to duty — Prompt delivery for shipment. - The proprietor or the proprietor's clerks shall be constant and prompt in their attendance at the warehouse for the reception and storage of tobacco, and promptly deliver tobacco to the planter or person entitled thereto, upon order for shipment.
History (4)
- Acts 1870-1871, ch. 65, § 7
- Shan., § 3387
- Code 1932, § 6484
- T.C.A. (orig. ed.), § 43-2109.
§ 43-19-110. Private warehouses. - Nothing in this chapter shall prevent any person from establishing a private warehouse for the storage of tobacco.
History (4)
- Acts 1870-1871, ch. 65, § 27
- Shan., § 3407
- Code 1932, § 6505
- T.C.A. (orig. ed.), § 43-2130.
§ 43-19-111. Tobacco commercial year. - The “tobacco commercial year” commences and ends on November 1 of each year.
History (5)
- Acts 1870-1871, ch. 65, § 26
- 1889, ch. 192, § 7
- Shan., § 3406
- Code 1932, § 6504
- T.C.A. (orig. ed.), § 43-2129.
§ 43-19-112. Prosecution for penalties — Duties of clerk and district attorney general — Fees. - The county clerk shall attend to all prosecutions for penalties under this chapter, for the use of the state, for which the county clerk shall receive ten percent (10%) on the sums collected and paid into the state treasury. The county clerk may, also, when necessary, call on the district attorney general to give attention to prosecutions for penalties under this chapter, for which service the district attorney general shall be allowed ten dollars ($10.00) to be taxed in the bill of costs, and when collected, shall be paid into the state treasury at the same time and in the same manner as other state revenue is by law required to be paid.
History (7)
- Acts 1870-1871, ch. 65, § 24
- impl. am. Acts 1897, ch. 41
- Shan., § 3404
- Code 1932, § 6503
- impl. am. Acts 1978, ch. 934, §§ 22, 36
- modified
- T.C.A. (orig. ed.), § 43-2128.
Part 2 Tobacco Inspectors—Inspections—Violations § 43-19-201. Warehouse proprietor may be inspector — Appointment of deputy inspectors — Oath — Bond. - (a) The proprietor of a warehouse, regularly authorized under this chapter, is created an inspector of tobacco, with power to appoint deputy inspectors; but, before any warehouse keeper, who may personally act as inspector, or any deputy who may act as inspector for the warehouse keeper, enters upon the duties of an inspector, that person shall go before the county clerk, and take and subscribe the following oath: “I, , do solemnly swear (or affirm) that I will carefully and diligently perform all the duties of an inspector of tobacco, according to law and to the best of my skill and judgment, without fear, favor, affection, malice, or partiality, and that I will not buy nor sell any tobacco inspected and sampled by me, nor accept any interest or profit in or from the purchase or sale of any tobacco inspected and sampled by me. So help me God.”
- (b) The person shall enter into bond, with good and sufficient security, to be approved by the county mayor, and payable to the state, in the sum of five thousand dollars ($5,000), conditioned to faithfully and honestly discharge the duties of the office, and that the person will not buy nor sell any tobacco inspected and sampled by that person, nor accept any interest or profit in or from the purchase or sale of any tobacco inspected or sampled by the person.
History (7)
- Acts 1870-1871, ch. 65, § 8
- 1889, ch. 192, § 2
- Shan., § 3388
- Code 1932, § 6485
- impl. am. Acts 1978, ch. 934, §§ 16, 22, 36
- T.C.A. (orig. ed.), § 43-2110
- Acts 2003, ch. 90, § 2.
§ 43-19-202. Duties of proprietor or deputy. - It is the duty of the proprietor or one (1) of the proprietor's regular deputies to:
- (1) Inspect the uncasing and breaking of any tobacco for inspection, and examine and classify the tobacco according to law and the proprietor's or deputy's oath of office;
- (2) Break each hogshead for inspection, in at least four (4) different places, drawing from each break at least four (4) bundles or hands of tobacco, from different courses or layers, so as to get a fair and just representation of the quality and condition of the tobacco;
- (3) Place these bundles together in one (1) sample, stamp with the following seal: “State Tobacco Inspection,” and mark with ink upon the label of the sample the name of the warehouse, the planter's name, the warehouse number of the hogshead and its approximate gross weight, the date of inspection, and the name of the sampler drawing the sample;
- (4) Mark “A,” or “Admitted,” all sound, clear, well assorted leaf tobacco, clear of lugs or trash, in good keeping order, and mark “R,” or “Refused,” all lugs or trash, or leaf mixed with lugs or trash, or clean leaf tobacco, if not in good keeping order;
- (5) Condemn all hogshead or casks that are insecure, or made of green or unsound timber, and mark, upon the label of the sample, “Cask Condemned”; the cost of putting such hogshead in proper merchantable order shall be charged to the owner of the tobacco;
- (6) Refuse to classify, and mark as “Damaged,” expressing on the label the probable amount of damage, every hogshead so damaged that the sample drawn will not show the character and extent of damage;
- (7) Refuse to classify, and to mark “Condemned,” any hogshead of tobacco that is falsely and fraudulently packed with intent to deceive, and give full information to the grand jury about such hogshead, from the proprietor's or deputy's books, when called upon to furnish the information;
- (8) Superintend the coopering and reweighing; see that each cask is replaced over the same tobacco from which it was taken; and mark the hogshead on both heads with distinct figures, specifying the correct weights;
- (9) Carefully enter in a book, to be provided and kept, for that purpose alone, an account of every hogshead of tobacco inspected, stating the planter's name, warehouse number, the gross weight, the tare, the net weight, the price at which it sold, the purchaser's name, and its quality, whether “Admitted” or “Refused”; and
- (10) Be personally present, and witness the breaking of any tobacco for inspection, and personally attach the proprietor's or deputy's seal to the sample drawn, and pay all just reclamations on tobacco improperly sampled by the proprietor or deputy.
History (5)
- Acts 1870-1871, ch. 65, § 9
- 1889, ch. 192, § 3
- Shan., § 3389
- Code 1932, § 6486
- T.C.A. (orig. ed.), § 43-2111.
§ 43-19-203. Reinspection — Making. - (a) Should any planter, or the planter's agent representing the planter, claim that the sample drawn from the planter's tobacco by an inspector does not represent fairly the hogshead from which it was taken, the planter may demand and have that hogshead reinspected.
- (b) The tobacco board of trade, where one exists, shall appoint a committee, consisting of two (2) warehousemen and one (1) buyer, who shall resample such tobacco, so as to show, as nearly as may be, the average condition and quality of the hogshead; and upon such sample so drawn by the committee, and the sample drawn by the inspector, the board of trade shall proceed to adjudge, in the same manner and in all respects as reclamations in favor of the buyer are determined, the amount, if any, the hogshead has been undersampled by the inspector, and the amount so adjudged shall be paid by the inspector to the planter.
- (c) Nothing in this section shall be construed to prevent any planter from guaranteeing the planter's tobacco to come up to the sample drawn by any inspector.
History (4)
- Acts 1889, ch. 192, § 3
- Shan., § 3389a
- Code 1932, § 6487
- T.C.A. (orig. ed.), § 43-2112.
§ 43-19-204. Responsibility of keeper. - After the tobacco is inspected, coopered, weighed, and numbered, the warehouse keeper becomes responsible to the planter or owner for the weights and proper keeping of the tobacco.
History (4)
- Acts 1870-1871, ch. 65, § 10
- Shan., § 3390
- Code 1932, § 6488
- T.C.A. (orig. ed.), § 43-2113.
§ 43-19-205. Conversion of samples or plucking leaves therefrom prohibited — Penalty. - (a) No warehouse keeper, nor anyone in the employment of the warehouse keeper, shall take or convert to that person's own use, or dispose of, any sample of tobacco, but the tobacco shall be delivered to the purchaser, and all loose tobacco shall be neatly returned to the hogshead or other container from which it came, before coopering and weighing.
- (b) No person shall willfully or wantonly pluck any leaf or leaves from any sample of tobacco to which the inspector has attached the inspector's seal, either before or after sale.
- (c) Any person violating any provision of this section commits a Class C misdemeanor.
History (6)
- Acts 1870-1871, ch. 65, § 11
- 1889, ch. 192, § 4
- Shan., § 3390a
- mod. Code 1932, § 6489
- T.C.A. (orig. ed.), § 43-2114
- Acts 1989, ch. 591, § 113.
§ 43-19-206. Erasure or counterfeiting a misdemeanor. - Any person who erases, or in any way alters or defaces, any letter, mark, number or figure put upon any hogshead or other container by an inspector, or counterfeits the letter, mark, number or figure, previous to the delivery to the purchaser, commits a Class C misdemeanor.
History (5)
- Acts 1870-1871, ch. 65, § 12
- Shan., § 3391
- mod. Code 1932, § 6490
- T.C.A. (orig. ed.), § 43-2115
- Acts 1989, ch. 591, § 113.
§ 43-19-207. Keeper not to sell tobacco until inspection — Penalty. - No warehouse keeper shall sell publicly any sample of tobacco that has not been regularly inspected under this chapter, under a penalty of five dollars ($5.00) for each hogshead so sold, to be recovered by any person suing for that amount.
History (4)
- Acts 1870-1871, ch. 65, § 13
- Shan., § 3392
- Code 1932, § 6491
- T.C.A. (orig. ed.), § 43-2116.
§ 43-19-208. Copy of sample cards with “Inspected” thereon. - Any warehouse keeper called upon to inspect a lot of tobacco shall make a copy of the original sample card, and write on it, in plain letters, “Inspected,” adding the date.
History (4)
- Acts 1870-1871, ch. 65, § 14
- Shan., § 3393
- Code 1932, § 6492
- T.C.A. (orig. ed.), § 43-2117.
§ 43-19-209. Warehouseman not to sell or buy. - (a) No proprietor of a warehouse shall sell any tobacco that has been directly or indirectly bought by that person, or on that person's account, nor directly or indirectly purchase on that person's own account any tobacco stored in that person's warehouse. This section is not to be construed as referring to the sale of crops of tobacco raised by the proprietor or any of the proprietor's agents or employees.
- (b) No proprietor of a warehouse, nor any deputy of a proprietor, who acts as inspector of tobacco, shall buy or sell any tobacco inspected and sampled by the proprietor or deputy, nor accept any interest or profit in or from the purchase or sale of any tobacco inspected and sampled by that person.
- (c) Any person violating this section shall forfeit fifty dollars ($50.00) for each hogshead so purchased or sold, or in which such interest or profit was accepted, one half (½) to the state, the other one half (½) to the informer.
History (5)
- Acts 1870-1871, ch. 65, § 15
- 1889, ch. 192, § 5
- Shan., § 3394
- Code 1932, § 6493
- T.C.A. (orig. ed.), § 43-2118.
§ 43-19-210. Accepting gratuity or reward — Penalty. - If any warehouse keeper accepts, directly or indirectly, any gratuity or reward for anything by that person done or omitted in the discharge of that person's official duties, that person shall forfeit two hundred dollars ($200) to the state, and, moreover, the warehouse keeper commits a Class C misdemeanor. The warehouse keeper shall also forfeit the office, and be forever afterward disqualified from holding the office of tobacco inspector.
History (6)
- Acts 1870-1871, ch. 65, § 16
- impl. am. Acts 1877, ch. 109, § 1
- Shan., § 3395
- mod. Code 1932, § 6494
- T.C.A. (orig. ed.), § 43-2119
- Acts 1989, ch. 591, § 113.
§ 43-19-211. Derelictions to be reported to county clerk. - Any planter or person shall inform the county clerk of any dereliction of duty on the part of the warehouse keeper.
History (5)
- Acts 1870-1871, ch. 65, § 17
- Shan., § 3396
- Code 1932, § 6495
- impl. am. Acts 1978, ch. 934, §§ 22, 36
- T.C.A. (orig. ed.), § 43-2120.
§ 43-19-212. Fraudulent packing or “nesting” a misdemeanor — Penalty. - Any person who fraudulently packs or “nests” a hogshead of tobacco with intent to deceive and obtain by the deception more than its true value commits a Class C misdemeanor.
History (5)
- Acts 1870-1871, ch. 65, § 18
- Shan., § 3397
- Code 1932, § 6496
- T.C.A. (orig. ed.), § 43-2121
- Acts 1989, ch. 591, § 113.
§ 43-19-213. Description of best hogshead to be posted in warehouse. - The warehouse keeper shall keep posted in some conspicuous place in the warehouse a description of the hogsheads or casks, length, measurement, etc., best suited to contain tobacco for market.
History (4)
- Acts 1870-1871, ch. 65, § 19
- Shan., § 3398
- Code 1932, § 6497
- T.C.A. (orig. ed.), § 43-2122.
§ 43-19-214. Fees and commissions of warehousemen. - The compensation of warehouse keepers for receiving, storing, inspecting, coopering, and selling tobacco shall be as follows, to wit:
- (1) To be paid by the seller, two dollars and fifty cents ($2.50), and one percent (1%) commission on proceeds of sale;
- (2) To be paid by buyer, one dollar and fifty cents ($1.50), and for storage after sale, after the first thirty (30) days, for each month or part of a month, twenty-five cents (25¢).
History (5)
- Acts 1870-1871, ch. 65, § 20
- 1889, ch. 192, § 6
- Shan., § 3399
- Code 1932, § 6498
- T.C.A. (orig. ed.), § 43-2123.
§ 43-19-215. Extortion a misdemeanor. - Any warehouse keeper who charges more than is allowed in § 43-19-214 commits a Class C misdemeanor, and is also liable to a penalty of ten dollars ($10.00) to the planter or person overcharged, recoverable before any judge of a court of general sessions.
History (6)
- Acts 1870-1871, ch. 65, § 21
- Shan., § 3400
- Code 1932, § 6499
- impl. am. Acts 1979, ch. 68, § 3
- T.C.A. (orig. ed.), § 43-2124
- Acts 1989, ch. 591, § 113.
§ 43-19-216. Auction bid may be refused. - Any planter, or other owner of tobacco sold at auction, may, by paying the fees, refuse at the time to take the price at which it is cried off.
History (4)
- Acts 1870-1871, ch. 65, § 22
- Shan., § 3401
- Code 1932, § 6500
- T.C.A. (orig. ed.), § 43-2125.
§ 43-19-217. Warehouseman's lien for fees and charges. - A lien is given to the proprietor of the warehouse on all tobacco and proceeds for fees and charges on the tobacco and proceeds.
History (4)
- Acts 1870-1871, ch. 65, § 22
- Shan., § 3402
- Code 1932, § 6501
- T.C.A. (orig. ed.), § 43-2126.
§ 43-19-218. Selling or shipping without inspection not prohibited. - No planter or person is prohibited from selling tobacco at private sale, with or without inspection, if such person chooses so to do, nor compelled to have tobacco, though stored in a public or authorized warehouse, inspected; but the person may sell or ship it without inspection.
History (5)
- Acts 1870-1871, ch. 65, § 23
- impl. am. Acts 1877, ch. 109, § 1
- Shan., § 3403
- Code 1932, § 6502
- T.C.A. (orig. ed.), § 43-2127.
Part 3 Sale of Tobacco § 43-19-301. Commissioner of agriculture to enforce rules and regulations. - The commissioner of agriculture is vested with the power and authority and is charged with the duty of administering and enforcing this part, and has the authority to establish and enforce reasonable rules and regulations not inconsistent with this part, for the purpose of carrying out this part.
History (3)
- Acts 1949, ch. 141, § 1
- C. Supp. 1950, § 6669.1 (Williams, § 6675.1)
- T.C.A. (orig. ed.), § 43-2131.
§ 43-19-302. Commingling of tobacco forbidden. - (a) It is unlawful for any person to commingle, mix, place on same basket with other tobacco or in any other manner or means to handle tobacco so as to lose its identity, for the purpose of sale at auction, any looseleaf tobacco grown by one (1) producer with looseleaf burley tobacco grown by any other producer, or with that of the same producer after being placed on the looseleaf floor.
- (b) After tobacco is weighed and set upon the warehouse floor for sale, no basket of tobacco shall be moved, without the consent of the owner, from its place on the floor until sale is confirmed by the owner of the tobacco.
History (3)
- Acts 1949, ch. 141, § 2
- C. Supp. 1950, § 6669.2 (Williams, § 6675.2)
- T.C.A. (orig. ed.), § 43-2132.
§ 43-19-303. Sales of burley tobacco regulated. - Sales of burley tobacco at warehouse or loosefloors shall be conducted so as to conform to one (1) of the following methods:
- (1) Sales to be at the rate of not more than ninety-seven thousand two hundred pounds (97,200 lbs.) per hour, per set of buyers; or
- (2) Sales to be at the rate of not more than three hundred sixty (360) baskets per hour, per set of buyers.
History (4)
- Acts 1949, ch. 141, § 3
- C. Supp. 1950, § 6669.3 (Williams, § 6675.3)
- Acts 1965, ch. 115, § 1
- T.C.A. (orig. ed.), § 43-2133.
§ 43-19-304. Warehouseman's record to be accurately maintained. - Any information pertaining to weights of tobacco sold, prices paid or amounts of tobacco handled, disseminated by any warehouseman, or a warehouseman's employees or agents shall be accurate and substantiated by records kept at the warehouse or loosefloor.
History (3)
- Acts 1949, ch. 141, § 4
- C. Supp. 1950, § 6669.4 (Williams, § 6675.4)
- T.C.A. (orig. ed.), § 43-2134.
§ 43-19-305. Penalty for violation. - A violation of this part or the rules and regulations promulgated under this part is a Class C misdemeanor.
History (4)
- Acts 1949, ch. 141, § 5
- C. Supp. 1950, § 6669.5 (Williams, § 6675.5)
- T.C.A. (orig. ed.), § 43-2135
- Acts 1989, ch. 591, § 113.
Chapter 21 Fairs Part 1 State Aid § 43-21-101. Disbursement of state aid grants by commissioner. - All grants of state aid to agricultural fairs by appropriation of the general assembly shall be disbursed by the commissioner of agriculture according to this chapter.
History (3)
- Acts 1949, ch. 156, § 1
- C. Supp. 1950, § 552.33 (Williams, § 552.56)
- T.C.A. (orig. ed.), § 43-2401.
§ 43-21-102. Fairs eligible for state aid grants — Use of funds — Forfeiture of privilege. - The commissioner of agriculture, for the purpose of fostering and developing agriculture within the state of Tennessee, is authorized to pay state aid from the grants made by the general assembly for such purposes to nonprofit agricultural shows held for the purpose of advancing agriculture. Fairs that receive state aid shall use their profits for future fair improvements, increasing their premium lists, and furthering the growth, expansion, and usefulness of fairs in every way possible, and to provide for a possible deficit at some future fair. Whenever a fair converts its profits into the treasury of a county, or pays dividends to stockholders, it forfeits its privilege of sharing in state aid.
History (3)
- Acts 1949, ch. 156, § 2
- C. Supp. 1950, § 552.34 (Williams, § 552.57)
- T.C.A. (orig. ed.), § 43-2402.
§ 43-21-103. Amount each fair to receive — Limitation on amount. - The amount of state aid given a community, county, district, division or other agricultural show shall be a percentage of the premiums paid by the show, except for special merit, as is provided in this section:
- (1) No community fair shall be paid more than fifty percent (50%) of its approved agricultural premiums in any one (1) year;
- (2) No county fair shall be paid more than fifty percent (50%) of its approved agricultural premiums in any one (1) year;
- (3) No district fair shall be paid more than fifty percent (50%) of its approved agricultural premiums in any one (1) year; and
- (4) No division fair shall be paid more than fifty percent (50%) of its approved agricultural premiums in any one (1) year.
History (5)
- Acts 1949, ch. 156, § 3
- C. Supp. 1950, § 552.35 (Williams, § 552.58)
- Acts 1957, ch. 261, § 1
- T.C.A. (orig. ed.), § 43-2403
- Acts 1980, ch. 670, §§ 1-4.
§ 43-21-104. Chapter definitions. - For the purpose of this chapter, unless the context otherwise requires:
- (1) “Community fair” means a fair serving an area of less than an entire county, at which are exhibited, in a manner satisfactory to the commissioner of agriculture, with cash premiums being paid to the exhibitors thereof, agricultural products produced in the area served;
- (2) “County fair” means a fair serving an entire county;
- (3) “District fair” means a fair serving at least five (5) counties but less than an entire grand division of the state and paying not less than a minimum of seven thousand dollars ($7,000) in cash premiums; and
- (4) “Division fair” means a fair serving a major region of the state and paying more than twenty thousand dollars ($20,000) in premiums.
History (5)
- Acts 1949, ch. 156, § 3
- C. Supp. 1950, § 552.35 (Williams, § 552.58)
- Acts 1957, ch. 261, § 2
- 1976, ch. 633, § 1
- T.C.A. (orig. ed.), § 43-2404.
§ 43-21-105. Aid not to exceed appropriation. - The total of state aid to be paid by the commissioner of agriculture to eligible fairs shall not exceed the appropriation made to aid agricultural fairs by the general assembly.
History (3)
- Acts 1949, ch. 156, § 4
- C. Supp. 1950, § 552.36 (Williams, § 552.59)
- T.C.A. (orig. ed.), § 43-2405.
§ 43-21-106. Premiums for enumerated exhibits may share in state aid. - The commissioner of agriculture shall grant such state aid only on cash premiums paid on approved classes of:
- (1) Cattle, swine, sheep, goats, farmwork stock, including mules shown to halter or farm vehicles, jack stock and light horses to halter;
- (2) Poultry, eggs, and dairy products;
- (3) Field, garden and horticultural products;
- (4) Home economics displays;
- (5) Junior agricultural projects; and
- (6) Agricultural educational exhibits.
History (5)
- Acts 1949, ch. 156, § 5
- C. Supp. 1950, § 552.37 (Williams, § 552.60)
- Acts 1957, ch. 261, § 3
- 1963, ch. 135, § 1
- T.C.A. (orig. ed.), § 43-2406.
§ 43-21-107. Statement of premiums to be awarded — Allotment on basis of statement — When funds paid. - On a date to be specified by the commissioner of agriculture, the president and secretary of any fair, or agricultural society wishing to share in state aid to fairs as provided for under § 43-21-102, shall file with the commissioner a sworn statement of premiums to be paid during the current fair season for entries outlined in § 43-21-106. In addition thereto and together with sworn statement, the president and secretary shall also show correctly the exact amount paid in premiums for the same entries in the preceding fair season. State aid on the basis of premiums paid during the preceding fair season will be allocated by the commissioner for the current fair season. Whenever any fair did not operate during the preceding fair season, the commissioner is authorized in that instance alone to make an allocation of state aid based upon the estimate of premiums to be paid during the current fair season.
History (4)
- Acts 1949, ch. 156, § 6
- C. Supp. 1950, § 552.38 (Williams, § 552.61)
- Acts 1955, ch. 310, § 1
- T.C.A. (orig. ed.), § 43-2407.
§ 43-21-108. List of premium winners and receipts to be furnished commissioner before payment. - Before the commissioner of agriculture pays state aid to any fair association, the association shall file with the commissioner, over the signature of the secretary, a typewritten report of approved premiums paid by the association, namely, those outlined in § 43-21-106. This report shall show the name and address of each premium winner, the amount paid to each winner, the name of each winning entry, and the total amount paid to all winners. The secretary of the fair shall send to the commissioner, together with the report outlined above, the cancelled checks, or signed receipts, used in paying the premiums listed on the report. The commissioner may accept a certified summary of premiums paid by a fair association who has paid approved agriculture premiums in excess of fifteen thousand dollars ($15,000); provided, that any fair may submit a statement prepared and certified by an accountant instead of the certified summary.
History (5)
- Acts 1949, ch. 156, § 7
- C. Supp. 1950, § 552.39 (Williams, § 552.62)
- Acts 1974, ch. 430, § 1
- 1978, ch. 596, § 1
- T.C.A. (orig. ed.), § 43-2408.
§ 43-21-109. Determination of compliance — Issuance of voucher upon compliance. - (a) The commissioner of agriculture shall determine from the evidence outlined above, namely, reports and checks or receipts, and by any inquiries that shall be considered necessary by the commissioner, whether or not the fair has been held in accordance with all the foregoing provisions of this chapter.
- (b) If, in the commissioner's judgment, the fair has complied with all the requirements of this chapter, the commissioner shall issue a state voucher according to the regular accounting procedures in effect in the department of agriculture and shall pass such voucher on to the department of finance and administration for approval; but the commissioner shall refuse to pay state aid to any fair that has not been held in accordance with this chapter.
History (5)
- Acts 1949, ch. 156, § 8
- C. Supp. 1950, § 552.40 (Williams, § 552.63)
- impl. am. Acts 1959, ch. 9, § 3
- impl. am. Acts 1961, ch. 97, § 3
- T.C.A. (orig. ed.), § 43-2409.
§ 43-21-110. Commissioner authorized to make regulations. - The commissioner of agriculture is empowered to make such rules and regulations in conformity with this chapter as, in the commissioner's judgment, may promote better agricultural fairs and agriculture in general in Tennessee.
History (3)
- Acts 1949, ch. 156, § 9
- C. Supp. 1950, § 552.41 (Williams, § 552.64)
- T.C.A. (orig. ed.), § 43-2410.
§ 43-21-111. Appropriation for state aid — Special awards for merit. - (a) There is appropriated from the general funds of the state the sum of one hundred sixty thousand dollars ($160,000) annually to be disbursed for state aid to agricultural fairs in accordance with this chapter.
- (b) The commissioner is authorized to expend a maximum of ten percent (10%) of this annual appropriation for administration of the laws contained in this chapter, including, but not limited to, education of persons conducting fairs in the state in agricultural fair administration and the salary of a full-time employee, whose duty shall be to promote and improve the operation of fairs in this state as directed by the commissioner. The employment of such person is authorized by this subsection (b).
- (c) In addition, the commissioner is authorized, in the commissioner's discretion, to grant state aid to fairs that are not under this chapter entitled to state aid and to beginning fairs needing financial assistance, but these discretionary grants shall not exceed an aggregate sum of ten thousand dollars ($10,000) annually.
- (d) The annual appropriation after the deduction of sums used as authorized in subsections (b) and (c) for administration hereof and for discretionary aid to fairs not otherwise entitled to aid shall be divided into two (2) funds, one (1) of which shall be two thirds (⅔) of the remaining total, all of which shall be used for the award of state aid to fairs provided for in § 43-21-103 et seq., and a second fund consisting of one third (⅓) of the remaining total, which shall be disbursed as provided in subsection (e) to those fairs that attain special excellence in operations.
- (e) For the purpose of determining state champion county fairs, the total sum of eligible county fairs shall be divided into three (3) classifications based upon the population of the county served by a fair as reported in the most current available census. In descending order of population, the top one third (⅓) shall be classified as triple “A” (AAA) fairs, the middle one third (⅓) as double “A” (AA) fairs, and the bottom one third (⅓) as single “A” (A) fairs. There shall be a state championship award to the champion county fair each year in each of the three (3) classifications; and there shall also be designated a first runner-up and a second runner-up each year in each classification. There shall be awarded to each fair determined worthy thereof an award to be known as the special award of merit. No fair shall be eligible for more than one (1) of the four (4) designations in each classification. The commissioner is authorized to designate as deputies or agents for the purpose of determining those fairs that are entitled to the special awards such citizens of the state as the commissioner may deem capable of this determination, including, but not limited to, the persons who shall constitute the officers and directors of any state association of fairs that may be in existence; and is authorized to adopt reasonable rules, regulations and standards to be followed in the selection of those fairs worthy of the awards.
- (1) The best county fair in each classification shall be entitled to receive out of the special awards fund a special merit award equal to one hundred percent (100%) of the state aid paid to it under § 43-21-103.
- (2) Each of the remaining eligible fairs shall share in the balance of the special awards fund in an amount equally proportionate to the state aid paid to each individual fair under § 43-21-103.
- (f) Community fairs shall not participate in the fund provided for in this section for disbursement to fairs that attain special excellence.
- (g) If any sum remains unused out of the fund provided for distribution under § 43-21-103, that sum shall be added to the special merit award fund and distributed to the fairs entitled to special merit awards.
- (h) The commissioner is empowered to reduce merit awards not to exceed twenty percent (20%) in case proper records and reports are not filed as required under the merit awards program.
History (5)
- Acts 1957, ch. 261, § 4
- 1963, ch. 135, § 2
- T.C.A., § 43-2411
- Acts 1980, ch. 670, § 5
- 1991, ch. 150, §§ 1-3.
§ 43-21-112. Limitation on amount of state aid. - No fair shall receive state aid in excess of fifty percent (50%) of its approved agricultural premiums in any one (1) year under this chapter. In no case shall a fair association in any one (1) season be paid in both state aid and merit award combined more than one half (½) the amount paid by the association in approved agricultural premiums as set out in § 43-21-106.
History (4)
- Acts 1957, ch. 261, § 4
- 1963, ch. 135, § 3
- T.C.A., § 43-2412
- Acts 1980, ch. 670, § 6.
Part 2 Youth Advisory Council § 43-21-201. Establishment. - The commissioner of agriculture is authorized to appoint and convene a youth advisory council to study and recommend to the commissioner methods of promoting the involvement of youth in Tennessee agricultural fairs and shows.
§ 43-21-202. Membership. - (a) The council may consist of up to nine (9) members, appointed in such manner as to give equal representation to each of the three (3) grand divisions of the state. The commissioner shall appoint at least one (1) member from the membership of each of the following organizations: Future Farmers of America, 4-H, and Future Homemakers of America.
- (b) Members must be sixteen (16) through twenty-one (21) years of age, and they must be recommended to serve on the council by the board of any agricultural fair.
§ 43-21-203. Meetings — Expenses. - The council may be convened as often as three (3) times annually, and expenses of council members shall be reimbursed in accordance with the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
Chapter 22 Farm Bureau § 43-22-101. Use of words “farm bureau” restricted to Tennessee Farm Bureau Federation. - The use of the words “farm bureau” by any person, firm, partnership, association, corporation, or other business enterprise doing business in the state of Tennessee, except by the Tennessee Farm Bureau Federation, or its subsidiaries, or affiliate associations, is unlawful.
History (3)
- Acts 1949, ch. 46, § 1
- C. Supp. 1950, § 552.42 (Williams, § 11412.16)
- T.C.A. (orig. ed.), § 43-2301.
§ 43-22-102. Other uses of words “farm bureau” unlawful — Exception. - The use of the words “farm bureau,” either preceded by or followed by the name of any state, county, or town, or by any word designating a product, service, activity, or enterprise in the state of Tennessee, is unlawful; provided, that this shall not limit nor affect the right of the Tennessee Farm Bureau Federation, or any of its affiliate associations, to the free use of such words.
History (3)
- Acts 1949, ch. 46, § 2
- C. Supp. 1950, § 552.43 (Williams, § 11412.17)
- T.C.A. (orig. ed.), § 43-2302.
§ 43-22-103. Federation's permission to use words — Methods of exercising. - The Tennessee Farm Bureau Federation may authorize its affiliate or associate organizations, services, or activities to use the words “farm bureau” by resolution duly adopted and spread upon the minutes of its board of directors, a certified copy of which shall be filed with the secretary of state before these words shall be used by any other than the Tennessee Farm Bureau Federation.
History (3)
- Acts 1949, ch. 46, § 3
- C. Supp. 1950, § 552.44 (Williams, § 11412.18)
- T.C.A. (orig. ed.), § 43-2303.
§ 43-22-104. Penalty for violation. - Any person, firm, partnership, association, or corporation violating any of the provisions of this chapter commits a Class C misdemeanor.
History (4)
- Acts 1949, ch. 46, § 4
- C. Supp. 1950, § 552.45 (Williams, § 11412.19)
- T.C.A. (orig. ed.), § 43-2304
- Acts 1989, ch. 591, § 113.
Chapter 25 Registration of Farm Names § 43-25-101. Names of farms and farm homes may be registered, and be placed on or near public highway. - All owners of farms and farm homes located in this state are authorized and empowered, in their discretion, to adopt suitable names for their farms or farm homes and to register the names with the department of agriculture, as provided in § 43-25-104, each name to be placed in a conspicuous place on or near a public highway.
History (4)
- Acts 1925, ch. 34, § 1
- Shan. Supp., § 320a1
- Code 1932, § 437
- T.C.A. (orig. ed.), § 43-2501.
§ 43-25-103. Application blanks to be furnished. - It is the duty of the commissioner to have printed suitable blanks upon which application for registration shall be made, and to furnish blanks to all persons desiring to comply with this chapter.
History (4)
- Acts 1925, ch. 34, § 4
- Shan. Supp., § 320a 4
- Code 1932, § 440
- T.C.A. (orig. ed.), § 43-2503.
§ 43-25-104. Application for registration of name — Contents — Form. - (a) Any person desiring to register the name of that person's farm or farm home with the department shall make application for registration to the commissioner upon forms to be furnished by the commissioner.
- (b) The application shall give the name adopted for the farm or farm home and its post office address and rural route and shall be signed by the person making the application.
History (4)
- Acts 1925, ch. 34, § 3
- Shan. Supp., § 320a3
- Code 1932, § 439
- T.C.A. (orig. ed.), § 43-2504.
§ 43-25-105. Registration books — Certificate of registration. - The commissioner shall provide a suitable book or books in which to enter the registrations provided for in this chapter; and, upon receipt of such applications for registration, shall cause the registration to be entered in the book or books by counties in compliance with this chapter, and shall issue to the person entitled thereto a certificate of registration.
History (4)
- Acts 1925, ch. 34, § 4
- Shan. Supp., § 320a5
- Code 1932, § 441
- T.C.A. (orig. ed.), § 43-2505.
Chapter 26 Right to Farm § 43-26-102. Chapter definitions. - As used in this chapter, unless the context otherwise requires:
- (1) “Farm” means the land, buildings, and machinery used in the commercial production of farm products and nursery stock as defined in § 70-8-303;
- (2) “Farm operation” means a condition or activity that occurs on a farm in connection with the commercial production of farm products or nursery stock as defined in § 70-8-303, and includes, but is not limited to: marketed produce at roadside stands or farm markets; noise; odors; dust; fumes; operation of machinery and irrigation pumps; ground and aerial seeding and spraying; the application of chemical fertilizers, conditioners, insecticides, pesticides, and herbicides; the employment and use of labor; marketing of farm products in conjunction with the production of farm products thereof; and any other form of agriculture as defined in § 43-1-113; and
- (3) “Farm product” means those plants and animals useful to man and includes, but is not limited to, forages and sod crops; grains and feed crops; dairy and dairy products; poultry and poultry products; livestock, including breeding and grazing; fruits; vegetables; flowers; seeds; grasses; hemp, as defined in § 43-27-101; trees; fish; apiaries; equine and other similar products; or any other product that incorporates the use of food, feed, fiber or fur.
- (4) [Deleted by 2019 amendment.]
History (7)
- Acts 1982, ch. 609, § 2
- 2002, ch. 592, §§ 1, 2
- 2014, ch. 581, § 3
- 2014, ch. 916, §§ 3, 4
- 2016, ch. 891, § 1
- 2017, ch. 369, § 1
- 2019, ch. 87, §§ 5, 6.
§ 43-26-103. Farms presumed not nuisances. - (a) It is a rebuttable presumption that a farm or farm operation is not a public or private nuisance. The presumption created by this subsection (a) may be overcome only if the person claiming a public or private nuisance establishes by a preponderance of the evidence that either:
- (1) The farm operation, based on expert testimony, does not conform to generally accepted agricultural practices; or
- (2) The farm or farm operation alleged to cause the nuisance does not comply with any applicable statute or rule, including without limitation statutes and rules administered by the department of agriculture or the department of environment and conservation.
- (b) [Deleted by 2019 amendment.]
- (c) [Deleted by 2019 amendment.]
- (d) [Deleted by 2019 amendment.]
- (e) [Deleted by 2019 amendment.]
History (7)
- Acts 1982, ch. 609, § 3
- 2002, ch. 604, § 1
- 2014, ch. 916, § 5
- 2016, ch. 728, § 1
- 2016, ch. 891, § 2
- 2017, ch. 369, § 2
- 2019, ch. 87, § 7.
§ 43-26-104. Applicability of chapter — Construction. - This chapter does not affect any rights or duties that exist or mature under title 44, chapter 18. This chapter shall be broadly construed to effectuate its purposes.
History (2)
- Acts 1982, ch. 609, § 4
- 2014, ch. 581, § 4.
Chapter 27 Hemp Part 1 General Provisions § 43-27-101. Chapter definitions. - As used in this chapter:
- (1) “Commissioner” means the commissioner of agriculture;
- (2) “Department” means the department of agriculture;
- (3) “Hemp” means the plant cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis;
- (4) “Hemp concentrate” means a concentrate with a delta-9 tetrahydrocannabinol (THC) concentration of not more than five percent (5%) that is derived from hemp solely for purposes of reconstitution into consumer products with a delta-9 tetrahydrocannabinol (THC) concentration of not more than three-tenths of one percent (0.3%); and
- (5) “THC” means delta-9 tetrahydrocannabinol.
History (2)
- Acts 2019, ch. 87, § 12
- 2022, ch. 907, § 1.
§ 43-27-102. Hemp license — Requirements — Records. - (a) Any person who produces hemp in this state shall obtain an annual license from the department.
- (b) In order to obtain and maintain a hemp license, a person must:
- (1) Submit to the department a description of all land on which the person produces hemp in this state, to include global positioning system coordinates and other information sufficient to identify the property;
- (2) Submit to the department any other information prescribed by rules as necessary for the efficient enforcement of this chapter;
- (3) Consent to reasonable inspection and sampling by the department of the person's hemp crop and inventory; and
- (4) Not be convicted of a state or federal felony drug offense within the previous ten (10) years.
- (c) The department shall maintain all records that the department creates, or that are submitted to the department, for regulation of hemp in this state for a period of at least five (5) years.
§ 43-27-103. Prohibited acts — Exceptions. - (a) The following acts within this state are prohibited:
- (1) Possession of rooted hemp by any person, other than a common carrier, without a valid license issued by the department;
- (2) Possession of cannabis with THC concentrations greater than three-tenths of one percent (0.3%) on a dry weight basis;
- (3) Failure to pay upon reasonable notice any license, sampling, or inspection fee assessed by the department;
- (4) Violation of this chapter or any rule promulgated under this chapter; or
- (5) Willful hindrance of the commissioner or the commissioner's authorized agent in performance of their official duties.
- (b) It is an exception to the application of subdivision (a)(2) that the only cannabis with a THC concentration greater than three-tenths of one percent (0.3%) on a dry weight basis in the person's possession was hemp concentrate and the person was transporting the hemp concentrate within this state from the location where the hemp concentrate was produced to a location where the hemp concentrate was to be reconstituted into consumer products with a THC concentration of not more than three-tenths of one percent (0.3%); provided, however, that the person transporting the hemp concentrate under this subsection (b) must maintain proof of a grower's license from the department in the transport vehicle.
History (2)
- Acts 2019, ch. 87, § 12
- 2022, ch. 907, § 2.
§ 43-27-104. Authority of commissioner. - (a) The commissioner is authorized to:
- (1) Administer this chapter;
- (2) Take all action necessary to obtain primary regulatory authority over the production of hemp in this state, as authorized by Section 297 of the Agriculture Improvement Act of 2018 (Public Law 115-334);
- (3) Promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as necessary for regulation of hemp in accordance with the federal Agriculture Improvement Act of 2018 and as determined by the commissioner to be necessary for the efficient enforcement of this chapter;
- (4) Determine requirements for and issue licenses for the production of hemp in this state;
- (5) Deny or revoke licenses and issue civil penalties up to one thousand dollars ($1,000) for each violation of this chapter or its rules;
- (6) Establish reasonable fees for hemp licenses necessary to implement and administer a hemp program in this state on an ongoing basis. All revenue collected from fees established under this subdivision (a)(6) must be used exclusively for administration of a hemp regulatory program by the department;
- (7) Require the maintenance or filing of records;
- (8) Enter during normal business hours any premises or conveyance of a person licensed under this chapter for purposes of inspection, sampling, and observation and copying of records required under this chapter; and
- (9) Provide, on at least a quarterly basis, a list of persons licensed pursuant to this chapter to the department of safety, for the department of safety's publication on its website. A licensee's inclusion on the list may be used as proof for purposes of satisfying the exception described in § 39-17-427(2).
- (b) All rules promulgated by the department prior to July 1, 2019, for regulation of industrial hemp are null and void immediately upon rules promulgated to effectuate chapter 87 of the Public Acts of 2019 taking effect. Within one hundred twenty (120) days of chapter 87 of the Public Acts of 2019 becoming law, the department shall promulgate rules necessary to effectuate the purposes of this chapter. The commissioner is authorized to file emergency rules under § 4-5-208 as necessary for compliance with this subsection (b).
History (2)
- Acts 2019, ch. 87, § 12
- 2022, ch. 907, § 5.
§ 43-27-105. Enforcement of chapter — Sample and analysis of hemp produced in state. - (a) The department shall enforce this chapter in a manner that may reasonably be expected to prevent production or distribution of cannabis with THC concentrations exceeding three-tenths of one percent (0.3%) on a dry weight basis, including random inspections and sampling of hemp licensees to ensure compliance with this chapter and rules promulgated under this chapter.
- (b) The department shall sample and analyze hemp produced in this state and hemp products distributed in this state for THC concentrations, tested according to protocols prescribed by rule under this chapter. Departmental testing methods shall employ liquid chromatography tandem mass spectrometry, in a manner similarly reliable to post-decarboxylation, to determine a cannabinoid profile of samples tested, including their THC concentrations.
§ 43-27-106. Stop movement or destruction order for plant or product exceeding authorized concentrations — Penalties — Evidence. - (a) When the commissioner or the commissioner's authorized agent finds any cannabis or cannabis product to contain THC concentrations greater than three-tenths of one percent (0.3%) on a dry weight basis, the commissioner may issue either a written stop movement order or written destruction order for the plant or product, as appropriate to best serve the public interest and purpose of this chapter.
- (b) Any person who negligently violates this chapter or rules promulgated under this chapter is subject to administrative action by the department including denial or revocation of any license issued under this chapter; issuance of stop movement orders, destruction orders, and civil penalties; and actions for injunction. Negligent violations of this chapter or rules promulgated under this chapter shall not be the basis for criminal prosecution of any person.
- (c) Any person who violates this chapter or rules promulgated under this chapter with a culpable mental state greater than negligence shall be subject to prosecution under any applicable state or federal law. If the department determines that a person has violated this chapter or rules promulgated under this chapter with a culpable mental state greater than negligence, the department shall report the matter to the Tennessee bureau of investigation and the United States attorney general.
- (d) In all proceedings brought to enforce this chapter, proof of testing consistent with rules promulgated under this chapter showing THC concentrations greater than three-tenths of one percent (0.3%), but not greater than one percent (1.0%), on a dry weight basis is prima facie evidence of a negligent violation of this chapter.
- (e) In all proceedings brought to enforce this chapter, the following are prima facie evidence of violation with a culpable mental state greater than negligence:
- (1) Proof of testing consistent with rules promulgated under this chapter showing THC concentrations greater than one percent (1.0%) on a dry weight basis;
- (2) Three (3) violations within a five-year period for possession of rooted hemp without a valid license issued by the department; or
- (3) Violation of any stop movement or destruction order issued under this chapter.
- (f) Any person whose license is revoked for violation of this chapter or rules promulgated under this chapter is ineligible for reissuance of the license for a period of at least five (5) years.
- (g) It is an exception to the application of this section that the only cannabis with a THC concentration greater than three-tenths of one percent (0.3%) on a dry weight basis in the person's possession was hemp concentrate and the person was transporting the hemp concentrate within this state from the location where the hemp concentrate was produced to a location where the hemp concentrate was to be reconstituted into consumer products with a THC concentration of not more than three-tenths of one percent (0.3%); provided, however, that the person transporting the hemp concentrate under this subsection (g) must maintain proof of a grower's license from the department in the transport vehicle.
History (2)
- Acts 2019, ch. 87, § 12
- 2022, ch. 907, § 3.
§ 43-27-107. Jurisdiction for violations. - When the commissioner has reason to believe that a person is causing or has caused a violation of this chapter or the rules promulgated under this chapter, the commissioner may initiate proceedings in either the chancery court of Davidson County or the chancery court of the county where the violation occurred, for injunctive relief to prevent the continuance of the violation or to correct the conditions resulting in the violation.
Part 2 Hemp-Derived Cannabinoid Products § 43-27-201. Purpose. - The purpose of this part is to regulate the sale and distribution of products containing a hemp-derived cannabinoid.
§ 43-27-202. Part definitions. - As used in this part, unless the context otherwise requires:
- (1) “Batch” means a single stock keeping unit with common cannabinoid input or a hemp flower of the same varietal and harvested on the same date and manufactured during a defined cycle in such a way that it could be expected to be of a uniform character and should be designated as such;
- (2) “Hemp-derived cannabinoid”:
- (A) Means:
- (i) A cannabinoid other than delta-9 tetrahydrocannabinol, or an isomer derived from such cannabinoid, that is derived from hemp in a concentration of more than one-tenth of one percent (0.1%); or
- (ii) A hemp-derived product containing delta-9 tetrahydrocannabinol in a concentration of three-tenths of one percent (0.3%) or less on a dry weight basis;
- (B) Includes, but is not limited to:
- (i) Delta-8 tetrahydrocannabinol;
- (ii) Delta-10 tetrahydrocannabinol;
- (iii) Hexahydrocannabinol;
- (iv) Tetrahydrocannabiphorol (THCp);
- (v) Tetrahydrocannabivarin (THCv); and
- (vi) Tetrahydrocannabinolic acid (THCa); and
- (C) Does not include:
- (i) Cannabichromene (CBC/CBCa/CBCv);
- (ii) Cannabicitran (CBT/CBTa);
- (iii) Cannabicyclol (CBL/CBLa);
- (iv) Cannabidiol (CBD/CBDa/CBDv/CBDp);
- (v) Cannabielsoin (CBE/CBEa);
- (vi) Cannabigerol (CBG/CBGa/CBGv/CBGm);
- (vii) Cannabinol (CBN/CBNa);
- (viii) Cannabivarin (CBV/CBVa);
- (ix) Hemp-derived feed products allowed under title 44, chapter 6;
- (x) Hemp-derived fiber, grain, or topical products; or
- (xi) A substance that is categorized as a Schedule I controlled substance on or after July 1, 2023, including a substance that may be identified in subdivision (2)(B);
- (3) “Manufacture” means to compound, blend, extract, infuse, cook, or otherwise make or prepare products containing a hemp-derived cannabinoid, including the processes of extraction, infusion, packaging, repackaging, labeling, and relabeling of products containing a hemp-derived cannabinoid;
- (4) “Proof of age” means a valid driver license or other government-issued identification card that contains a photograph of the person and confirms the person's age as twenty-one (21) years of age or older;
- (5) “Retailer” means a person or entity that sells products containing a hemp-derived cannabinoid for consumption and not for resale;
- (6) “Serving” means a quantity of a hemp-derived cannabinoid product reasonably suitable for a single person's daily use; and
- (7) “Supplier” means a person or entity that manufactures hemp-derived cannabinoids or sells products containing hemp-derived cannabinoids to retailers.
§ 43-27-203. License required for manufacturing, producing, or selling hemp-derived cannabinoid products — Offenses and penalties. - (a)
- (1) It is an offense for a person or entity to engage in the business of manufacturing, producing, or selling products containing a hemp-derived cannabinoid in this state without a valid license required by this part.
- (2) A product containing a hemp-derived cannabinoid that is sold or offered for sale in violation of subdivision (a)(1) is subject to seizure and forfeiture pursuant to § 53-11-451.
- (b)
- (1) It is an offense to knowingly sell or distribute a product containing a hemp-derived cannabinoid without having first obtained proof of age from the purchaser or recipient.
- (2) It is an offense for a person to knowingly sell or distribute a product containing a hemp-derived cannabinoid to a person who is under twenty-one (21) years of age or to purchase a product containing a hemp-derived cannabinoid on behalf of a person who is under twenty-one (21) years of age.
- (3) It is an offense for a person to knowingly assist a person who is under twenty-one (21) years of age to purchase, acquire, receive, or attempt to purchase a product containing a hemp-derived cannabinoid.
- (4) It is an offense for a person who is under twenty-one (21) years of age to knowingly purchase, possess, or accept receipt of a product containing a hemp-derived cannabinoid or to knowingly present purported proof of age that is false, fraudulent, or not actually that person's for the purpose of purchasing or receiving a product containing a hemp-derived cannabinoid.
- (5) This subsection (b) does not preclude law enforcement efforts involving:
- (A) The use of a minor if the minor's parent or legal guardian has consented to this action; or
- (B) The use of a person under twenty-one (21) years of age who is not a minor if the individual has consented to this action.
- (c) It is an offense to knowingly distribute samples of products containing a hemp-derived cannabinoid in or on a public street, sidewalk, or park.
- (d) A violation of this section is a Class A misdemeanor.
- (e) Notwithstanding this part to the contrary and except as provided in § 43-27-205, state and local law enforcement officers have concurrent jurisdiction to enforce violations of this section and § 43-27-204.
§ 43-27-204. Maintenance of hemp derived cannabinoids in retail establishments — Violations. - (a) As used in this section:
- (1) “Counter” means the point of purchase at a retail establishment; and
- (2) “Retail establishment” means a place of business open to the general public for the sale of goods or services and does not include a place of business for which entry is limited to persons twenty-one (21) years of age or older.
- (b) A product containing a hemp-derived cannabinoid must be maintained behind the counter of a retail establishment in an area inaccessible to a customer.
- (c) A violation of this section is a Class A misdemeanor.
§ 43-27-205. Responsibilities of the department of agriculture — Responsibilities of the department of revenue — Annual reports. - (a) The department of agriculture is responsible for:
- (1) Issuing licenses to suppliers and retailers under this part;
- (2) Overseeing the manufacture and distribution of hemp-derived cannabinoid products by licensed suppliers, including ensuring compliance with labeling, product testing, and transportation requirements and conducting necessary inspections, prior to a product's delivery or sale to a retailer; and
- (3) Conducting random, unannounced inspections at locations where hemp-derived cannabinoids and products containing hemp-derived cannabinoids are manufactured, distributed, or sold to ensure compliance with this part.
- (b) The department of revenue:
- (1) Is responsible for ensuring retailers are in compliance with this part and applicable tax provisions under title 67, including § 67-6-232;
- (2) Shall enforce this part in a manner that may reasonably be expected to reduce the extent to which non-compliant hemp-derived cannabinoid products are sold and shall conduct random, unannounced inspections at retail locations where such products are sold to ensure compliance with this part. The department of revenue shall determine the frequency of random, unannounced inspections required under this subdivision (b)(2); and
- (3) Is authorized to confiscate non-compliant hemp-derived cannabinoid products as contraband in the manner described in title 53, chapter 11. All products that the department of revenue confiscates under this subdivision (b)(3) are subject to seizure and forfeiture pursuant to § 53-11-451.
- (c) Each department shall submit an annual report to the general assembly describing in detail the department's compliance and enforcement efforts under this part. The report must also be published and made available to the public on each department's website.
§ 43-27-206. License to produce or sell cannabinoid products — License requirements — Prohibited retail locations — Authority of the department of agriculture. - (a) A person or entity that is in the business of manufacturing or selling products containing a hemp-derived cannabinoid in this state, including as a supplier or retailer, must obtain a license from the department of agriculture authorizing the person or entity to engage in that business prior to the commencement of business or by July 1, 2024, whichever is later.
- (b)
- (1) In order to obtain and maintain a supplier or retailer license under subsection (a), a person must:
- (A) Submit to the department of agriculture information prescribed by rules as necessary for the efficient enforcement of this part;
- (B) Pay to the department of agriculture a fee of five hundred dollars ($500) for supplier or two hundred fifty dollars ($250) per retailer per location;
- (C) Consent to reasonable inspection and sampling by the department of agriculture, or the department of revenue as applicable, of the person's inventory of products containing a hemp-derived cannabinoid; and
- (D) Submit to a criminal history background check that includes fingerprint checks against state and federal criminal records maintained by the Tennessee bureau of investigation and the federal bureau of investigation.
- (2) A person is not eligible to obtain or maintain a supplier or retailer license while serving a sentence for, or for ten (10) years following the date of conviction for, a drug-related felony offense in any state or federal jurisdiction.
- (3)
- (A) A retail location that is within one thousand feet (1,000') of a private school, public school, or charter school that serves any grades from kindergarten through grade twelve (K-12) shall not sell products containing a hemp-derived cannabinoid, unless the applicant provides the department with documentation that establishes that products containing a hemp-derived cannabinoid were being offered for sale at retail at such location on December 31, 2023.
- (B) The department shall accept business records, photographs, and video recordings as documentation for purposes of determining whether an applicant qualifies for the exception in subdivision (b)(3)(A).
- (C) For the purposes of subdivision (b)(3)(A), measurements shall be made in a straight line in all directions, without regard to intervening structures or objects, from the nearest point on the property line of a parcel containing a retail establishment to the nearest point on the property line of a parcel containing a private school, public school, or charter school that serves any grades from kindergarten through grade twelve (K-12).
- (c) A license issued pursuant to this section is valid for a period of one (1) year and may be renewed annually. The department of agriculture shall charge an annual renewal fee equal to the initial licensing fee.
- (d) The department of agriculture is authorized to:
- (1) Determine requirements for and issue licenses for the manufacture or sale of products containing a hemp-derived cannabinoid in this state; and
- (2) Deny or revoke licenses and issue civil penalties in the following manner for each violation of this part, or a rule promulgated pursuant to this part, as follows:
- (A) One thousand dollars ($1,000) for a first violation;
- (B) Two thousand five hundred dollars ($2,500) for a second violation that occurs within two (2) years of the first violation;
- (C) Five thousand dollars ($5,000) for a third violation that occurs within two (2) years of the first violation;
- (D) Revocation of the license for a fourth violation that occurs within two (2) years of the first violation; and
- (E) Require retraining of all employees of the licensee under the supervision of the department in addition to the civil penalty imposed pursuant to subdivisions (d)(2)(A)-(C).
- (e) The revenue collected from fees established under subdivision (b)(1)(B) must be deposited in the Tennessee agriculture regulatory fund, created by § 43-1-701, and used exclusively for the administration of this part.
§ 43-27-207. Product testing requirements — Department of agriculture maintenance of list of qualified testing laboratories. - (a) Testing of products and substances must be conducted as follows:
- (1) Full-panel testing on all active cannabinoid molecules must be conducted prior to final production of products containing a hemp-derived cannabinoid; and
- (2) A potency test must be conducted on finished goods to confirm potency is consistent with stated potency on the packaging.
- (b)
- (1) A supplier or retailer must contract with a third-party laboratory to provide the testing required by subsection (a).
- (2) The department of agriculture is authorized to promulgate rules specifying which types of tests may be used to satisfy the requirements of subsection (a) and the qualifications for laboratories from which the department will accept test results.
- (c) Each batch manufactured must undergo testing and obtain a certificate of analysis by a third-party laboratory qualified under subsection (b).
- (d) The department of agriculture shall:
- (1) Promulgate rules specifying pass/fail action levels for safety and toxicity with respect to the testing required by subsection (a);
- (2) Maintain and post on its website a registry of testing laboratories that are qualified to test intermediate manufactured material and finished products containing a hemp-derived cannabinoid;
- (3) Develop an application and process by which qualifying laboratories are listed on its website. The application submitted by a potentially qualifying laboratory must include a sample certificate of analysis issued by the applying laboratory; and
- (4) Sample and analyze products containing a hemp-derived cannabinoid produced, distributed, or offered for sale in this state for cannabinoid concentrations, tested according to protocols prescribed by rule under this part. Departmental testing methods must employ liquid chromatography tandem mass spectrometry, in a manner similarly reliable to post-decarboxylation, to determine a cannabinoid profile of samples tested, including their THC concentrations.
§ 43-27-208. Transportation of hemp-derived cannabinoid products — Required documentation — Exceptions. - (a) Except as provided in subsection (b), a person transporting products containing a hemp-derived cannabinoid into, within, or through this state shall carry:
- (1) Documentation sufficient to prove that the products being shipped or transported:
- (A) Were produced from hemp that was lawfully produced under a state or tribal hemp plan approved by the United States department of agriculture, under a hemp license issued by the United States department of agriculture, or otherwise in accordance with federal regulations through the state or territory of the Indian tribe, as applicable; and
- (B) Do not exceed the cannabinoid limits for hemp-derived cannabinoids; and
- (2) A bill of lading that includes:
- (A) Name and address of the owner of the products;
- (B) Point of origin;
- (C) Point of delivery, including name and address;
- (D) Kind and quantity of packages or, if in bulk, the total quantity of products in the shipment; and
- (E) Date of shipment.
- (b) Subsection (a) does not apply to a person in possession of products containing a hemp-derived cannabinoid that were purchased from a retailer that is licensed under this part.
§ 43-27-209. Safety requirements for hemp-derived cannabinoid products — Proper storage by consumer — Prohibited advertising. - (a) A product containing a hemp-derived cannabinoid that is sold at retail must:
- (1) Satisfy the child-resistant effectiveness standards under 16 CFR 1700.15(b)(1) when tested in accordance with the requirements of 16 CFR 1700.20; and
- (2) Be labeled with:
- (A) A list of ingredients and possible allergens and a nutritional fact panel;
- (B) A warning statement concerning the risk of impairment from consumption of the product, keeping the product out of the reach of children, and other warning information as required by rule of the department of agriculture;
- (C) If the product is ingestible, the amount of cannabinoid in each serving of the product, measured in milligrams;
- (D) The total amount of hemp-derived cannabinoid in the entire package, measured in milligrams;
- (E) The net weight of the product;
- (F) A quick response (QR) code that can be scanned to access a website providing the product's batch number, date received, date of completion, method of analysis for the testing report required under § 43-27-207, including information regarding results of the product's full-panel and potency tests conducted pursuant to § 43-27-207(a); and
- (G) An expiration date.
- (b) A person who obtains a product containing a hemp-derived cannabinoid that is sold at retail shall store any unconsumed portion of the product in its original packaging. It is a Class C misdemeanor offense for a person to violate this subsection (b).
- (c) A retailer or supplier of a product containing a hemp-derived cannabinoid shall not advertise, market, or offer for sale a product containing a hemp-derived cannabinoid by using, in the labeling or design of the product or product packaging or in advertising or marketing materials for the product trade dress, trademarks, branding, or other related imagery or scenery that depicts or signifies characters or symbols known to appeal primarily to persons under twenty-one (21) years of age, including, but not limited to, superheroes, comic book characters, video game characters, television show characters, movie characters, and unicorns or other mythical creatures.
- (d) An ingestible product containing a hemp-derived cannabinoid shall not:
- (1) Be sold in a serving that contains more than twenty-five (25) milligrams, in the aggregate, of one (1) or more hemp-derived cannabinoids; or
- (2) Be formed into the shape of an animal or cartoon character.
- (e) The department of agriculture is authorized to promulgate rules for the packaging, labeling, and display of products containing a hemp-derived cannabinoid that are offered for sale in this state.
§ 43-27-210. Limitations on right to use hemp-derived cannabinoid — Rights of others. - (a) This part does not permit a person to:
- (1) Undertake any task under the influence of a hemp-derived cannabinoid when doing so would constitute negligence or professional malpractice; or
- (2) Operate, navigate, or be in actual physical control of a motor vehicle, aircraft, motorized watercraft, or any other vehicle while under the influence of a hemp-derived cannabinoid.
- (b) This part does not require:
- (1) An employer to accommodate the use of a hemp-derived cannabinoid in a workplace or an employee working while under the influence of a hemp-derived cannabinoid;
- (2) An individual or establishment in lawful possession of property to allow a guest, client, customer, or other visitor to use a hemp-derived cannabinoid on or in that property; or
- (3) An individual or establishment in lawful possession of property to admit a guest, client, customer, or other visitor who is impaired as a result of the person's use of a hemp-derived cannabinoid.
- (c) This part does not exempt a person from prosecution for a criminal offense related to impairment or intoxication resulting from use of a hemp-derived cannabinoid or relieve a person from any requirement under law to submit to a breath, blood, urine, or other test to detect the presence of a controlled substance.
- (d) This part does not:
- (1) Limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy;
- (2) Create a cause of action against an employer for wrongful discharge or discrimination; or
- (3) Allow the possession, sale, manufacture, or distribution of any substance that is otherwise prohibited by title 39, chapter 17, part 4.
§ 43-27-211. Authority to promulgate rules. - The departments of agriculture and revenue are authorized to promulgate rules to effectuate this part in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Chapter 28 Timber Part 3 Branding of Timber § 43-28-301. Branding authorized — “Timber” defined. - (a) Any person, firm, or corporation dealing in timber is authorized to adopt a brand in the manner and with the effect provided by this part.
- (b) For the purposes of this part, “timber” means and includes trees, whether standing, lying down, or prepared for sale, sawlogs and other logs, cross and railroad ties, boards, planks, staves and headings, and all other timber cut or prepared for market.
History (4)
- Acts 1901, ch. 54, § 1
- Shan., § 3608a78
- Code 1932, § 6771
- T.C.A. (orig. ed.), § 68-301.
§ 43-28-302. Notice of brand — Form — Acknowledgment — Recording — Copy posted. - (a) Every timber dealer desiring to adopt a brand may do so by the execution of a writing in form and effect as follows:
- Brand notice is hereby given that I (or we, as the case may be) have adopted the following brand in my (or our, etc.) business as timber dealer or dealers, to wit: (here insert the word, letters, figures, etc., constituting the brand, or if it be any device other than the words, letters, or figures, insert the facsimile thereof). Dated this day of , A. D. .
- (b) The writing shall be acknowledged or proven for record in the same manner as deeds are acknowledged or proven, and shall be recorded in the office of the county clerk in which the principal office or place of business of the timber dealer may be. A copy thereof shall be posted up at the place where the principal business is done, and one (1) at the courthouse door in the county where the business is carried on, and at three (3) public places in the county.
History (4)
- Acts 1901, ch. 54, § 2
- Shan., § 3608a79
- Code 1932, § 6772
- T.C.A. (orig. ed.), § 68-302.
§ 43-28-303. Certificate of registration required. - Before any person, firm, or corporation can claim protection under its brands, the same shall be registered in the county of its residence, and a certificate of registration issued to those registering brand.
History (4)
- Acts 1901, ch. 54, § 11
- Shan., § 3608a88
- Code 1932, § 6781
- T.C.A. (orig. ed.), § 68-303.
§ 43-28-304. Brand becomes trademark — Infringement — Penalty — Damages. - Every brand adopted pursuant to this part shall be the exclusive trademark of the person, firm or corporation adopting the brand, and any other person, firm or corporation knowingly using or attempting to use that brand without the written consent of the owner commits a Class C misdemeanor, and is liable to the owner of the brand for all damages sustained by the owner by reason of the use of the brand.
History (5)
- Acts 1901, ch. 54, § 3
- Shan., § 3608a80
- Code 1932, § 6773
- T.C.A. (orig. ed.), § 68-304
- Acts 1989, ch. 591, § 113.
§ 43-28-305. Brand to be plainly stamped. - The proprietor of the brand shall, in using the brand, cause it to be plainly stamped, branded, or otherwise impressed upon each piece of timber upon which the brand is placed.
History (4)
- Acts 1901, ch. 54, § 4
- Shan., § 3608a81
- Code 1932, § 6774
- T.C.A. (orig. ed.), § 68-305.
§ 43-28-307. Unlawfully obliterating brand — Penalty. - Any person or persons who unlawfully cut out, cancel, obliterate, or deface any brand recorded as provided in this part that has been placed on any timber of another in this state commits a Class E felony.
History (5)
- Acts 1901, ch. 54, § 6
- Shan., § 3608a83
- Code 1932, § 6776
- T.C.A. (orig. ed.), § 68-307
- Acts 1989, ch. 591, § 36.
§ 43-28-308. Taking, concealing, destroying or converting branded timber — Penalty. - Any person who unlawfully takes, secretes, cuts, saws, splits up, or destroys any timber branded as provided in this part, or removes branded timber from the river or place on which the timber has been placed, with the intent to prevent the owner or owners from finding the timber, or in any way converts the timber to such person's use without the consent of the owner, or who receives the timber knowing it to have been stolen, commits a Class E felony.
History (5)
- Acts 1901, ch. 54, § 7
- Shan., § 3608a84
- Code 1932, § 6777
- T.C.A. (orig. ed.), § 68-308
- Acts 1989, ch. 591, § 37.
§ 43-28-310. Purchaser's brand put on timber by seller vests title in purchaser — Rights as to purchase money unaffected. - Whenever any timber is branded by the seller or another with the seller's consent, with the brand of the purchaser or other person, corporation or firm, then the title to the timber shall at once pass to the person, corporation or firm whose brand is placed upon it, but this shall not affect the rights of contracting parties with respect to the payment of the purchase money for the timber.
History (4)
- Acts 1901, ch. 54, § 9
- Shan., § 3608a86
- Code 1932, § 6779
- T.C.A. (orig. ed.), § 68-310.
§ 43-28-311. Brands and trade-marks under previous law unaffected. - Nothing in this part shall affect the validity and effect of all timber brands and trademarks that have been duly adopted and recorded under the law in force previous to April 20, 1901, but the timber brands and trademarks shall be as valid for all purposes, civil and criminal, as if duly adopted and recorded under this part.
History (4)
- Acts 1901, ch. 54, § 10
- Shan., § 3608a87
- Code 1932, § 6780
- T.C.A. (orig. ed.), § 68-311.
§ 43-28-312. Cutting timber from property of another — Civil liability. - (a)
- (1) Civil liability for the negligent cutting of timber from the property of another is in an amount double that of the current market value of the timber.
- (2) If the timber is negligently cut from the property of another because the landowner for whom the timber is being cut has marked or designated the boundary of the landowner's property incorrectly, then the landowner is jointly liable for the double damages.
- (b) Civil liability for knowingly and intentionally cutting timber from the property of another is in an amount treble that of the current market value of the timber.
- (c) Nothing in this section precludes an owner of property on which timber has been cut by another from recovering damages for loss of value other than commercial timber value, if any, of the timber negligently or intentionally cut.
- (d) “Current market value,” as used in this section, applies to the property in question that is standing timber; therefore, the current market value is that of the timber before being cut.
History (2)
- Acts 1991, ch. 455, § 1
- 1992, ch. 875, § 1.
§ 43-28-313. Tennessee Native Species Lumber Act. - (a) This section shall be known and may be cited as the “Tennessee Native Species Lumber Act.”
- (b) As used in this section:
- (1) “Agricultural building” means any structure used primarily for agricultural purposes or for forest product production;
- (2) “Commercial sawmill” means any type of sawmill that produces lumber for sale;
- (3) “End user” means any person who purchases native lumber from a commercial sawmill for the purpose of residential construction;
- (4) “Grader” means the owner of a commercial sawmill, or the owner's designated employee, who has visually inspected each piece of lumber; and
- (5) “Native timber” means any hardwood or softwood species growing within the borders of this state.
- (c)
- (1) The operator of any commercial sawmill that is certified to grade lumber pursuant to subsection (d) may, when requested by the end user of the native lumber, certify in writing to the purchaser that the quality and safe working stresses of the lumber are equal to or better than No. 2 grade, in accordance with the conditions set forth in the American Softwood Standard PS 20-70 of the United States department of commerce, as amended; provided, that the minimum grade of lumber used in load-bearing wall members shall be stud grade.
- (2) The certification provided pursuant to subdivision (c)(1) shall include:
- (A) The name of the wood species;
- (B) The quantity of wood certified;
- (C) The location where the wood is to be used;
- (D) Whether or not the wood is seasoned;
- (E) The name of the commercial sawmill where the wood was cut;
- (F) The name of the grader; and
- (G) The date on which the wood was cut at the commercial sawmill and graded.
- (3)
- (A) Upon the request of the local building official, the end user shall provide written certification of the quality and safe working stresses of the native lumber provided by the commercial sawmill operator pursuant to subdivision (c)(1), as part of the building permit application.
- (B) The certification provided pursuant to subdivision (c)(3)(A) shall be accepted by code officials in lieu of any grade stamp requirements.
- (d)
- (1) The University of Tennessee shall, through its agriculture extension service, offer a course in grading lumber to owners of commercial sawmills and the owners' designated employees. Any person who successfully completes the lumber grading course will be issued a certificate that entitles the certificate holder to grade lumber pursuant to this section. The course shall be offered biannually in each of the three (3) grand divisions of this state.
- (2) The department of agriculture shall promulgate rules to implement and administer the certification program created by subdivision (c)(1), including, but not limited to, establishing a course fee in an amount sufficient to defray the cost of implementing and administering the certification program.
- (e) Any person who uses the native timber harvested from and used entirely on the person's own property shall, if required, certify that the lumber meets the requirements of any building codes.
- (f) No certification of native lumber shall be required in the construction of an agricultural building.
History (1)
- Acts 2016, ch. 1071, § 1.
Chapter 32 Commodity Warehouses, Dealers and Producers Part 1 Commodity Dealer and Warehouse Law § 43-32-102. Chapter definitions. - As used in this chapter, unless the context otherwise requires:
- (1) “Claimant” means:
- (A) Any producer or person, possessing warehouse receipts covering commodities owned or stored by the warehouseman;
- (B) Any person with written evidence of ownership, other than warehouse receipts, disclosing a storage obligation of a commodity warehouseman, including scale tickets, settlement sheets and ledger cards;
- (C) Any person who has lent money to a commodity warehouseman and who was to receive a warehouse receipt as security for that loan, but the commodity dealer or warehouseman failed within twenty-one (21) days after receiving the loan moneys and no warehouse receipt was issued;
- (D) Any person who has surrendered warehouse receipts as a part of a commodities sale transaction, the commodity warehouseman failed within twenty-one (21) days thereafter and the person surrendering the warehouse receipt did not get fully paid therefor; or
- (E) Any producer who possesses written evidence of the sale of commodities to a failed commodity dealer not limited to scale tickets, settlement sheets, price later contracts, basis contracts or similar commodities delivery contracts, but did not get fully paid therefor and who is unable to secure satisfaction of financial obligations due from a person licensed by the department in accordance with this chapter;
- (2) “Commissioner” means the commissioner of agriculture, or the commissioner's designated representatives;
- (3) “Commodity” means grain;
- (4) “Commodity assets” means all commodities owned or stored by a failed commodity dealer or warehouseman, including commodities in transit that were shipped by the failed commodity dealer or warehouseman or failed warehouseman and for which payment has not been received; proceeds from sale or commodities due or to become due; the equity (net of any secured financing directly associated therewith) in assets in commodity exchange commodities margin accounts; any moneys due or to become due (net of any secured financing directly associated therewith) from any future contracts on any recognized commodity exchange; any other unencumbered funds or property or equity of the failed commodity dealer or warehouseman in funds or property wherever located that can be directly traced as being from the sale of commodities by the failed commodity dealer or warehouseman or failed warehouseman; provided, that any such funds, property, or equity in funds or property shall not be deemed to be encumbered unless the encumbrance results from good and valuable consideration advanced by any secured party on a bona fide basis; and provided further, that the encumbrance is not the result of the taking of the funds, property, or equity in funds or property as additional collateral for an antecedent debt; or other unencumbered funds, property, or equity in assets;
- (5) “Commodity dealer” means any person engaged in the business of buying commodities from producers thereof for resale or for milling or processing. A producer of commodities buying commodities for the producer's own use as seed or feed shall not be considered as being engaged in the business of buying commodities for resale or for milling or processing;
- (6) “Cooperative agreement” means any agreement made by the department with a person, local unit of government, or state or federal agency as may be reasonable and proper to carry out this chapter;
- (7) “Department” means the Tennessee department of agriculture;
- (8) “Failure” means:
- (A) An inability to financially satisfy a claimant in accordance with applicable statute or regulation and the time limits provided therein, if any;
- (B) A declaration of insolvency;
- (C) A revocation of license and leaving of outstanding indebtedness to claimants;
- (D) A failure to pay claimants in the ordinary course of business where a bona fide dispute does not exist between a commodity dealer or warehouseman and a customer;
- (E) A failure to apply for license renewal;
- (F) A denial of license renewal; or
- (G) A voluntary surrendering of a license;
- (9) “Grain” means corn, wheat, oats, rye, soybeans, rape seed, canola and grain sorghums;
- (10) “Incidental commodity dealer” means any commodities dealer who purchases commodities from producers and whose total purchases of commodities during any fiscal year do not exceed one hundred thousand dollars ($100,000);
- (11) “Incidental commodity dealer, nonsecured” means a commodities dealer who purchases commodities from producers and whose total purchases during any fiscal year do not exceed one hundred thousand dollars ($100,000), and who has notified the commissioner on the dealer's license application or renewal application that the dealer has opted not to maintain a security instrument;
- (12) “Person” includes an individual, corporation, partnership and all associations of two (2) or more persons having a joint or common interest;
- (13) “Producer” means the owner, tenant or operator of land in this state who has an interest in and receives all or any part of the proceeds from the sale of the commodities produced thereon;
- (14) “Program” means the Tennessee commodity producer indemnity program;
- (15) “Stored commodities” means any commodities received in any commodities warehouse, located in this state, if such commodities are not purchased and beneficially owned by the commodities warehouseman;
- (16) “United States Warehouse Act” means the United States Warehouse Act, enacted August 11, 1916, as amended;
- (17) “Valid claim” means a claim arising from a failure of a commodity dealer or warehouseman that occurs after July 1, 1989, and adjudicated valid by the commissioner, net of all credits and offsets, and in accordance with § 43-32-210;
- (18) “Warehouse” or “commodities warehouse” means any building, structure, or other protected enclosure in this state used for the purpose of storing commodities for a consideration;
- (19) “Warehouse receipt” means:
- (A) A warehouse receipt issued under this chapter in accordance with the Uniform Commercial Code; or
- (B) A warehouse receipt issued under the United States Warehouse Act; and
- (20) “Warehouseman” or “commodities warehouseman” means any person who owns, controls or manages a public commodities warehouse in which commodities are stored for compensation and who is authorized to issue warehouse receipts, and includes any grain warehouse licensed under the United States Warehouse Act that has entered into a cooperative agreement.
History (3)
- Acts 1989, ch. 232, § 2
- 1997, ch. 387, §§ 17-19
- 2006, ch. 656, § 1.
§ 43-32-103. Federally licensed commodity warehouses — Applicability. - Any commodity warehouse licensed under the United States Warehouse Act shall be subject to this chapter. However, any federally licensed commodity warehouse that meets the minimum requirements of the federal act shall be in compliance with the requirements of this part. All public commodity warehouses licensed under the United States Warehouse Act shall file with the commissioner a copy of their current license and a copy of all subsequent licenses or renewals so as to always have a copy of a current license on file with the commissioner.
§ 43-32-104. Warehouse receipts. - (a) The commissioner shall prescribe the form of all warehouse receipts, and no other character or form of warehouse receipt shall be issued except those so authorized.
- (b) Receipts must be issued for all commodities stored in a warehouse. Receipts need not be issued against nonstorage commodities, but each warehouseman shall keep accurate records of the weights, kinds, and grades, if graded, of all lots of nonstorage commodities received into and delivered from the warehouseman's warehouse.
- (c)
- (1) No warehouse receipt shall be issued except on actual delivery of commodities into storage in the warehouse from which it purports to be issued, nor shall any receipt be issued for a greater quantity of commodities than was contained in the lot or parcel so received from storage, nor shall more than one (1) receipt be issued for the same lot of commodities, except in cases where a receipt for a part of a lot is desired, and then the aggregate receipts for a particular lot shall cover that lot and no more.
- (2) No warehouseman shall issue or aid the issuance of a receipt for commodities knowing that the commodities for which the receipt is issued and has not actually been received by the warehouseman or that the commodities are not under the warehouseman's actual control at the time of issuing the receipt.
§ 43-32-105. Licensing requirements — Application. - (a) No person shall engage in business as a commodity dealer or warehouseman in the state of Tennessee without a license therefor issued by the department.
- (b) Application for a license to engage in business as a commodity dealer or warehouseman shall be filed with the department and shall contain information and be in a form as prescribed by the department by lawfully promulgated rule.
- (c) The application for an initial license may be filed at any time prior to beginning business as a commodity dealer or warehouseman. However, the license shall terminate ninety (90) days after the close of the commodity dealer's or warehouseman's fiscal year.
- (d) The application for a renewal of a license shall be filed with the department annually within ninety (90) days after the close of the commodity dealer's or warehouseman's last completed fiscal year or within such further time, not exceeding sixty (60) days, as the department, upon application, may allow.
- (e) For all commodity dealer or warehouseman licenses, with the exception of incidental commodity dealers, nonsecured, the application shall be accompanied by a financial statement setting forth information as prescribed by the commissioner by lawfully promulgated rule.
- (f) The application for a license to operate as a commodity dealer or warehouseman, as defined in this chapter, or a renewal thereof, shall be accompanied by a filing fee of one hundred fifty dollars ($150). The application for a license to operate as an incidental commodity dealer as defined in this chapter, or a renewal thereof, shall be accompanied by a filing fee of fifty dollars ($50.00).
- (g) The license or renewal thereof issued by the department under this section shall be posted in the principal office of the licensee in this state. A certificate shall be posted in each location listed on a licensee's application where the licensee engages in the business of buying or storing commodities. In the case of a licensee operating a truck or tractor trailer unit, the licensee is required to have a certificate that the license is in effect, and that a bond or certificate of deposit has been filed, carried in each truck or tractor trailer unit used in connection with the purchase of commodities from producers. Upon request of a licensee and payment of the fee therefor, the department shall issue to the licensee a certificate that a license has been issued or renewed and a bond filed as required by this chapter.
- (h) The license issued to an incidental commodity dealer, nonsecured shall clearly state: “Producers are not eligible to receive indemnification from the Tennessee grain indemnity fund if payment is not made for commodities delivered to this dealer.” Additionally, this statement shall also be posted adjacent to the license issued to the dealer in the location required by this part. The notice shall be in print no smaller than two inches (2″) in letter height. This statement shall also be placed on the receipt or scale ticket issued to the seller, with a place for the seller's signature provided on each receipt or scale ticket. The signature of the seller or the seller's representative shall be affixed to each receipt or scale ticket.
History (2)
- Acts 1989, ch. 232, § 5
- 2006, ch. 656, §§ 2, 3.
§ 43-32-106. Financial requirements — Security bonds — Insurance — Exemptions. - (a) With the exception of incidental commodity dealers, nonsecured, every person licensed as a commodity dealer or warehouseman shall have a surety bond and a fire and extended coverage insurance policy, or proof thereof, both of which shall be noncancellable for the term of the license.
- (b) The surety bond shall provide a reasonable level of protection for those persons storing commodities in the warehouse or selling commodities to a dealer in the event of bankruptcy, fraud, or other occurrence that would deprive the person storing or selling commodities from recovering its value. This surety bond shall be in an amount established by the commissioner by duly promulgated rules. These bonding requirements are subject to a twenty thousand dollar ($20,000) minimum and a five hundred thousand dollar ($500,000) maximum limit.
- (c) The fire and extended coverage insurance policy shall be in an amount set by the commissioner by rule and regulation.
- (d) The bond and insurance policy shall be for the benefit of the persons storing commodities with the warehouseman, and shall be conditioned to provide the protection described in this section.
- (e) The premiums on the bond or insurance shall be paid by the licensee.
- (f) Any commodity dealer or warehouseman may file with the department, in lieu of a surety bond, a certificate of deposit or an irrevocable letter of credit payable to the department with the commissioner as trustee. The principal amount of the certificate shall be the same as that required for a surety bond under this chapter and the interest thereon shall be made payable to the purchaser thereof.
- (g) The surety bond or certificate of deposit in effect on the date of a warehouseman's license revocation, license suspension, cessation of operation or date of default as determined by the department shall be liable for and accrue liabilities not to exceed the principal of the surety bond or certificate of deposit.
- (h) When the department determines that an applicant's or licensee's ability to pay producers for commodities purchased is in question, or when it determines that a commodity dealer or warehouseman does not meet the financial requirements of this chapter, it may require additional collateral security. Such collateral security may include, but is not limited to, irrevocable letters of credit, certificates of deposit, commercial surety bonds, and, on a negotiated basis, mortgages or deeds of trust on real property, personal or corporate guarantees or other guarantees. Failure to post collateral security shall constitute grounds for suspension or revocation of a license issued under this chapter.
- (i) Any commodity dealer or warehouseman who is of the opinion that such person's net worth and assets are sufficient to guarantee payment to producers for commodities purchased or stored by that person may request the department to be relieved of the obligation of filing a bond in excess of the minimum bond of twenty thousand dollars ($20,000). The conditions under which such requests shall be granted shall be established by the commissioner in duly promulgated rules.
- (j) A commodity dealer shall be exempt from the bonding requirements of this section if the commodity dealer paid producers in full prior to or on the date of every delivery of commodities accepted for one (1) year prior to the date the request to be exempt is submitted to the department.
- (k) A commodity dealer exempt from bonding requirements under subsection (j) who pays less than the full amount for commodities prior to or upon delivery, issues a check at the time of delivery that is later dishonored for any reason, or takes any action subsequent to delivery that causes the producer to receive less than the full amount paid at delivery, shall file and maintain a surety bond in the amount required by this section.
History (3)
- Acts 1989, ch. 232, § 6
- 2006, ch. 656, § 4
- 2014, ch. 677, § 1.
§ 43-32-107. Inspections — License suspension or revocation. - (a) The department shall examine or inspect each licensed commodity dealer or warehouseman at least once each calendar year. The department may inspect the premises used by any commodity dealer or warehouseman in the conduct of business at any time, and the books, accounts, records and papers of every licensed commodity dealer or warehouseman shall at all times during business hours be subject to inspection by the department. Each commodity dealer or warehouseman may also be required to make such reports of activities, obligations, and transactions as deemed necessary by the department to protect the producer as set forth in the rules and regulations.
- (b) If a commodity dealer or warehouseman violates any of the provisions of this chapter, that person's license and certificate of license may be removed from that person's premises by any department employee charged with the enforcement of this chapter and returned to the department. This removal shall constitute a suspension of the license, and the licensee may request a hearing before the commissioner within ten (10) days in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (c) If the department finds that a commodity dealer is licensed as a commodities warehouse under the United States Warehouse Act and does not satisfy the requirements of part 2 of this chapter, the commissioner shall suspend or revoke the dealer's license until such time as the commodities warehouse complies with the Tennessee Commodity Producer Indemnity Act, compiled in part 2 of this chapter.
- (d) If any court of competent jurisdiction issues any order restraining, overturning or modifying any order of the department that suspends or revokes a commodity dealer's or warehouseman's license, the department, its officers, employees and agents shall be held harmless from any liabilities or financial obligations arising out of the operations of the commodity dealer or warehouseman while operating under the court order.
History (2)
- Acts 1989, ch. 232, § 7
- 1997, ch. 387, § 20.
§ 43-32-108. Insolvency — Payment defaults. - (a) If it is discovered that any commodity dealer or warehouseman is insolvent, or that its continuance in business will seriously jeopardize the interest of its creditors or commodities depositors, it is the duty of the commissioner to close that dealer or warehouseman and to take charge of all the property and effects thereof, and to notify the surety. Upon taking charge of any such dealer or warehouseman, the commissioner shall, as soon as practicable, ascertain by a thorough examination into its affairs, its actual financial condition, and whenever the commissioner becomes satisfied that the commodity dealer or warehouseman cannot resume business or liquidate its indebtedness to the satisfaction of its creditors, the commissioner shall report the fact of its insolvency to the attorney general and reporter, who shall immediately upon receipt of this notice institute proper proceedings in the proper court for the purpose of having a receiver appointed.
- (b) With the exception of incidental commodity dealers, nonsecured, if a commodity dealer or warehouseman fails or refuses to make payment for or deliver to a producer for commodities when requested, the producer shall notify the commissioner in writing of the failure or refusal within one hundred sixty (160) days of the date of sale or the date of delivery of the commodities to the commodity dealer or warehouseman, whichever is later, but in case of deferred pricing, delayed pricing, priced later, or similar contractual arrangements, no more than two hundred seventy (270) days after the date of delivery. The commissioner, upon receiving this notice, shall take whatever action is necessary. The producer furnishing written notice within the prescribed length of time is entitled to the benefits of the commodity dealer's or warehouseman's bond if such bond is required in accordance with § 43-32-106. However, if a producer fails to furnish written notice to the commissioner within the prescribed time, then that producer is not entitled to any benefits under the commodity dealer's or warehouseman's bond and part 2 of this chapter. Commodity dealer liability under price later contracts, open price contracts, deferred price contracts, or similar agreements shall accrue under the bond in effect at the date of default as determined by the commissioner.
- (c) With the exception of incidental commodity dealers, nonsecured, when the commissioner has determined that a commodity dealer has defaulted payment to producers for commodities that the dealer has purchased from them, or that a warehouseman failed to deliver value for commodities stored, the commissioner shall determine through appropriate legal procedures the producers and the amount of defaulted payment, and as trustee of the bond, shall immediately after such determination call for the commodity dealer's surety bond or bonds to be paid to the commissioner for distribution to those producers who should receive the benefits. Should the defaulted amount owed producers be less than the principal amount of the bond or bonds, then the surety shall be obligated to pay only the amount of the default.
- (d) Notwithstanding subsections (b) and (c), an incidental commodity dealer, nonsecured, by opting not to maintain a security instrument, causes the producers from whom the dealer purchases commodities to be ineligible to receive indemnification from the Tennessee grain indemnity fund in the event the dealer fails to make payment for the commodities delivered to the dealer.
History (3)
- Acts 1989, ch. 232, § 8
- 2006, ch. 656, §§ 5-7
- 2014, ch. 677, § 2.
§ 43-32-109. Violations — Penalties. - (a) With the exception of incidental commodity dealers, nonsecured, failure of a commodity dealer or warehouseman to file a bond or certificate of deposit and to keep the bond or certificate of deposit in force or to maintain assets adequate to assure payment to producers for commodities purchased from or stored for them shall be grounds for the suspension or revocation of a license issued under this chapter.
- (b) Any person who engages in business as a commodity dealer or warehouseman without securing a license, or who does not have a valid license or is in violation of this chapter or the rules and regulations promulgated under this chapter, or who impedes, obstructs, hinders, or otherwise prevents or attempts to prevent the commissioner or the commissioner's duly authorized agent in the performance of that officer's duty in connection with this chapter or its rules and regulations, or any commodity dealer or warehouseman, or any officer, agent or employee of a commodity dealer or warehouseman, who refuses to permit inspection of that person's premises, books, accounts, or records as provided in this chapter commits a Class A misdemeanor. In case of a continuing violation or violations, each day that each violation occurs constitutes a separate and distinct offense.
- (c) Any commodity dealer or warehouseman, or officer, agent, or employee of a commodity dealer or warehouseman, who withholds records, keeps or files false records or who inaccurately alters records or presents to the department any materially false records commits a Class E felony.
- (d) It is the duty of each district attorney general to whom any violation is reported to cause appropriate proceedings to be instituted and prosecuted in the appropriate court without delay. Before the commissioner reports a violation for prosecution, the commissioner may give the commodity dealer or warehouseman, or the officer, agent or employee of the commodity dealer or warehouseman, an opportunity to present such person's views at a hearing.
- (e) The commissioner may file a complaint and apply for, and the appropriate court may grant, a temporary restraining order or preliminary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rules and regulations promulgated under this chapter, notwithstanding the existence of other judicial remedies. Any such injunction may be entered without notice and without bond.
- (f) The commissioner may prohibit a commodity dealer or warehouseman from disposing of any commodities owned, in whole or in part, or held or in that person's possession, whether owned in whole or in part, or may prohibit anyone from removing any commodities in which the commodity dealer or warehouseman or producers from which that person has purchased commodities have an interest; and shall have authority for the disposition of the commodities to carry out the intent of this chapter.
History (3)
- Acts 1989, ch. 232, § 9
- 1989, ch. 591, §§ 1, 6
- 2006, ch. 656, § 8.
Part 2 Commodity Producer Indemnity Law § 43-32-201. Short title. - This part shall be known and may be cited as the “Tennessee Commodity Producer Indemnity Law.”
History (1)
- Acts 1989, ch. 232, § 11.
§ 43-32-202. Purpose — Tennessee grain indemnity fund. - It is the purpose of this part to promote the state's welfare by improving the economic stability of agriculture. It is declared to be in the public interest and highly advantageous to the agricultural economy of the state that producers of grain be permitted, by referendum, to levy upon themselves an assessment of one cent (1¢) per bushel on soybeans and one-half cent (½¢) per bushel on all other grain, and provide for the collection of the assessment for the purpose of financing or contributing to the financing of the Tennessee grain indemnity fund, which is created as a separate fund within the department of agriculture to protect commodity producers in the event of the financial failure of a commodity dealer or warehouseman, and to ensure the existence of adequate funds so the commodity producers and claimants may be compensated for losses occasioned by the failure of a commodity dealer or warehouseman.
History (2)
- Acts 1989, ch. 232, § 11
- 1997, ch. 387, § 2.
§ 43-32-203. Referendum of producers — Procedure. - (a) Any qualified producer organization may make application to the commissioner requesting a referendum of producers on forms prescribed by the commissioner for the purpose of determining whether an assessment of the amount specified in § 43-32-202 can be levied, collected and disbursed under this part.
- (b) Within thirty (30) days of receipt of an application requesting a referendum, the commissioner shall make a determination of whether or not the petitioner is a qualified producer organization and, upon this determination, shall set a date for the referendum, which shall not be more than sixty (60) days after receipt of the application, and shall publish by any reasonable means, the date of the referendum, the polling places and the hours they will be open, the amount of the proposed assessment, and the date the assessment shall begin, if adopted.
- (c)
- (1) Any referendum held under this part shall be conducted statewide, under the control and direction of the commissioner. The polling place in each county shall be the offices of the University of Tennessee agriculture extension service. All ballots shall be provided at the polling place. All voting shall be by secret ballot.
- (2)
- (A) Each person seeking to vote in the referendum shall be required to file an affidavit stating that the person is a producer as defined in this chapter. Upon signing an affidavit, that person shall be eligible to vote. The question to be decided in the referendum shall be in the following form:
- Shall the producers of assess themselves at the rate of cents per of sold, and use the funds so collected by the department of agriculture solely to finance the Tennessee grain indemnity fund in order to protect commodity producers in the event of the financial failure of a commodity dealer or warehouseman?
- (B) The affirmative vote of the majority of the number of votes cast adopts the proposed assessment.
- (3) Within ten (10) days after the referendum, the commissioner shall canvass the votes and publicly announce the result of the referendum.
History (2)
- Acts 1989, ch. 232, § 12
- 1997, ch. 387, § 3.
§ 43-32-205. Applicability — Department powers. - (a) Every commodity dealer or warehouseman required to be licensed by the department, except for commodity dealers who are incidental grain dealers, unsecured, shall be subject to this part.
- (b) The department shall be empowered to enter into a cooperative agreement with any commodity warehouse licensed under the United States Warehouse Act or with any federal agency to accomplish the purposes of this part.
History (2)
- Acts 1989, ch. 232, § 14
- 2011, ch. 69, § 1.
§ 43-32-206. Assessments — Notice — Refunds — Applicability. - (a) Upon an affirmative vote in the referendum, the commissioner shall notify forthwith by certified mail all persons in this state engaged in the business of purchasing commodities from producers, except for purchasers who are incidental grain dealers, unsecured, that on and after the date specified in the letter, the assessment specified in § 43-32-202 shall be deducted from the producer's payment by the purchaser or the purchaser's agent or representative from the purchase price of the commodities. The assessment so deducted shall, on or before the twentieth day of the month following the end of the month in which the commodities are sold to the purchaser, be remitted by the purchaser to the Tennessee grain indemnity fund. The books and records of all purchasers of commodities, which shall clearly indicate the producer and the amount of the assessment, shall be at all times open for inspection by the commissioner or the commissioner's agents during regular business hours. The commissioner or the commissioner's agents may take such steps as are reasonably necessary to verify the accuracy of books and records of purchasers of commodities.
- (b) Any producer upon and against whom the assessment is levied and collected under this section, if dissatisfied with the assessment and its result, may demand of and receive from the Tennessee commodity producer indemnity fund a refund of the assessment collected from the producer. Requests for refunds shall be made within ninety (90) days of the date the amount was deducted. By voluntarily submitting to a refund, the producer foregoes any protection or compensation provided by the Tennessee grain indemnity fund.
- (c)
- (1) Producers who have requested and received a refund of an assessment pursuant to this part may re-enter the program by petitioning commissioner for approval of re-entry into the program and immediately upon mailing a petition for re-entry to the offices of the department, placing an amount equal to all previous assessment refunds plus interest to that producer in an escrow account in a local bank, the previous assessments and the terms and conditions of the escrow account to be determined by the department.
- (2) The commissioner shall review the producer's petition for re-entry and, if approved, the producer shall repay into the appropriate indemnity fund all previous assessment refunds as determined by the department. Producers re-entering the program pursuant to this section will be protected by the program ninety (90) days from the time all previous assessment refunds were placed in escrow.
- (3) No producer will be granted protection of the grain producer indemnity program who has not been a participant in the program prior to meeting the criteria of a claimant.
- (d) Commodity producers from outside Tennessee shall not be subject to the assessment if they certify to the commodity dealer or warehouseman that they are out-of-state producers. The department shall establish the form to be completed, signed and given to the commodity dealer or warehouseman in order to obtain the exemption. A copy of the form shall be kept as a part of the books and records by the commodity dealer or warehouseman and, in addition, a copy of the form shall be supplied to the department. A commodity producer from outside of Tennessee may be subject to the assessment and therefore awarded all the protection of this part if the producer so chooses and meets the requirements of this part. The commissioner may enter into a reciprocal agreement with a contiguous state having a similar program.
- (e) The assessments by the department pursuant to this part are in addition to any other fees or assessments required by law.
History (3)
- Acts 1989, ch. 232, § 15
- 1997, ch. 387, §§ 6-10
- 2011, ch. 69, § 2.
§ 43-32-207. Assessment — Suspension — Reinstatement. - (a) The assessment shall continue on grain until the Tennessee grain indemnity fund is more than three million dollars ($3,000,000). If and when the fund is more than three million dollars ($3,000,000), the commissioner shall temporarily suspend the assessment. At such time the amount in the fund drops below three million dollars ($3,000,000), the commissioner may reinstitute the assessment; however, the assessment shall not exceed the assessment rate established by this chapter. Adjustments to the assessment can be made only once annually. At such time the fund has utilized funds from the revenue fluctuation reserve fund in accordance with § 43-32-209, and if, in the opinion of the commissioner, the assessment will not pay the state back, the commissioner may institute a mandatory assessment. This mandatory assessment shall be in effect only for as long as it takes to repay the revenue fluctuation reserve fund, and shall not be applicable to producers who were ineligible to receive benefits from the Tennessee grain indemnity fund at the time of the claim that resulted in the obligation to the revenue fluctuation reserve fund.
- (b) Notwithstanding any other provisions of this part, any assessment initiated after July 1, 2011, shall continue until the balance of the fund is ten million dollars ($10,000,000), at which time the assessment shall be temporarily suspended. Assessments thereafter shall be reinstated when the fund balance is less than eight million dollars ($8,000,000).
History (2)
- Acts 1989, ch. 232, § 16
- 2011, ch. 69, § 3.
§ 43-32-208. Assessments — Collection — Fund management. - All assessments collected by the department pursuant to this part shall be in a separate fund and shall be used solely to carry out the purposes of this chapter. These funds may be invested and reinvested at the discretion of the state treasurer, and the interest from these investments shall be deposited to the credit of the fund and shall be available for the same purposes as all other money deposited in the Tennessee grain indemnity fund. The moneys in the Tennessee grain indemnity fund shall not be available for any purpose other than the payment of claims and for the administration of this chapter.
History (2)
- Acts 1989, ch. 232, § 17
- 1997, ch. 387, § 11.
§ 43-32-209. Access to reserve funds. - In the event that the amount in the Tennessee grain indemnity fund is insufficient to pay the approved claims from that fund, the commissioner of agriculture, with the approval of the commissioner of finance and administration and the appropriate standing committees of the general assembly, shall have access to the revenue fluctuation reserve fund for an amount sufficient to satisfy the unpaid claims. This access shall not exceed a maximum amount of one million five hundred thousand dollars ($1,500,000). The state shall be reimbursed, with interest, at the rate paid on ninety-day United States treasury bills, for any amounts paid under this section upon replenishment of the fund from the assessments on the appropriate commodity made pursuant to this part.
History (2)
- Acts 1989, ch. 232, § 18
- 1997, ch. 387, § 12.
§ 43-32-210. Compensation of claimants. - (a) Within ninety (90) days of the commissioner's approval of a valid claim, the department shall, in accordance with this section, compensate from the Tennessee grain indemnity fund any claimant who has incurred a financial loss due to a failure of a commodity dealer or warehouseman.
- (1) Any claimant who has incurred a financial loss due to a failure of a commodity dealer shall be entitled to be compensated for eighty-five percent (85%) of a valid claim, to a maximum of one hundred thousand dollars ($100,000), with moneys from the Tennessee grain indemnity fund. To the maximum extent that funds are or may be made available for such purpose, the remaining balance of the claims shall be paid by the department from the assets and other security of the failed dealer.
- (2) Any claimant who has incurred a financial loss due to the failure of a warehouseman and who has surrendered a warehouse receipt for payment or holds a warehouse receipt and cannot receive value shall be compensated for one hundred percent (100%) of the claim.
- (b) To the extent that the balance of the grain indemnity fund increases as a result of § 43-32-207(b), the maximum amount per claimant set forth in subsection (a) shall be adjusted proportionately, so that the maximum amount per claimant shall be maintained at three and one-third percent (3⅓%) of the balance of the grain indemnity fund at the time of a failure of a commodity dealer.
History (3)
- Acts 1989, ch. 232, § 19
- 1997, ch. 387, § 13
- 2011, ch. 69, § 4.
§ 43-32-211. Commission — Duties. - The commissioner, upon determining that a commodity dealer or warehouseman has defaulted payment or failed, has the duty under this part, in addition to any other duties granted to the commissioner by law, to:
- (1) Request the transfer of moneys from the Tennessee grain indemnity fund when necessary for the purpose of compensating claimants in accordance with § 43-32-210;
- (2) Hold in trust any assets of a failed commodity dealer or warehouseman for the purposes of repayment of the Tennessee grain indemnity fund moneys used to pay claimants; any repayment to the appropriate indemnity fund shall not exceed the principal amount paid to claimants; and
- (3) In the event that the amount in the Tennessee grain indemnity fund is insufficient to pay all valid claims in accordance with § 43-32-210, pay valid claims based on a pro rata share of available funds.
History (2)
- Acts 1989, ch. 232, § 20
- 1997, ch. 387, § 14.
§ 43-32-212. Department of agriculture — Duties. - The department has the duty under this chapter to:
- (1) Collect and deposit all fees and assessments authorized under this part into the Tennessee grain indemnity fund for investment by the fund;
- (2) Transfer, at the discretion of the commissioner, any moneys from the department to the Tennessee grain indemnity fund for investment;
- (3) Subrogate all the rights of the claimant. The claimant shall assign all rights, title and interest in any judgment to the department;
- (4) Initiate any action it may deem necessary to compel the commodity dealer or warehouseman against whom an awarded claim arose to repay the Tennessee grain indemnity fund; and
- (5) Initiate any action it may deem necessary to compel the claimant whose claim arose due to a failure to participate in any legal proceeding in relation to that claim.
History (2)
- Acts 1989, ch. 232, § 21
- 1997, ch. 387, § 15.
§ 43-32-213. Rules. - In accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the commissioner shall promulgate such rules as may be necessary to effectively and efficiently administer and enforce this chapter.
History (1)
- Acts 1989, ch. 232, § 22.
Chapter 33 Aquaculture § 43-33-126. Fish farming — Hybrid striped bass. - (a) Notwithstanding any other provision of law or proclamation to the contrary, any person, firm or corporation engaged in the business of fish farming may raise to maturity hybrid striped bass for the specific purpose of making the hybrid striped bass available for purchase by wholesalers, restaurants and members of the public. The person, firm or corporation shall comply with the applicable rules of the Tennessee fish and wildlife commission.
- (b) For the purposes of this section, “fish farming” means the rearing of artificially propagated, nonbait fish for the specific and bona fide purpose of making the fish available to persons wishing to procure the fish by purchase.
History (2)
- Acts 1991, ch. 481, § 2
- 2012, ch. 993, § 5.
Chapter 34 Agricultural District and Farmland Preservation Act § 43-34-101. Short title. - This chapter shall be known and may be cited as the “Agricultural District and Farmland Preservation Act of 1995.”
§ 43-34-102. Purpose and policy. - It is the intent and purpose of the state to encourage the conservation, protection, and responsible utilization of lands that are managed for purposes of agricultural production. It is recognized that these lands are finite, fragile, and valuable resources that contribute economically and socially to the well being of the state. It is also recognized that these lands are subject to change and conversion from agricultural production as a result of urban expansion, and similar land development measures. It is the policy of the state to provide a process for the recognition of lands dedicated to agricultural production and to assure an accurate understanding of the impacts of public policy decisions that might otherwise alter the capability of those lands to remain in agricultural production.
§ 43-34-103. Chapter definitions. - As used in this chapter, unless the context otherwise requires:
- (1) “Agricultural district” means those properties residing within a contiguous boundary and meeting appropriate criteria for designation as such by the local soil and water conservation district;
- (2) “Agricultural production” means those operations including associated land and facility management activities engaged in the commercial propagation, raising, harvesting and/or processing of any plant or animal or products thereof for purposes of consumption, utilization, goods, or service either on-site or for distribution;
- (3) “Board of supervisors” means the governing body of the local soil and water conservation district;
- (4) “Farmland” means land and associated facilities involved in agricultural production activities;
- (5) “Ownership” means any individual, family, company, corporation, or organization holding title to property within a proposed or established agricultural district;
- (6) “Petition” means the application and application process for designation of an agricultural district as submitted to the local soil and water conservation district;
- (7) “Soil and water conservation district” means that governmental body established by chapter 14, part 2, of this title; and
- (8) “Tennessee soil and water conservation commission” means that governmental body established by chapter 14, part 2, of this title.
History (2)
- Acts 1995, ch. 465, § 4
- 2021, ch. 203, §§ 7-9.
§ 43-34-104. Requirements of an agricultural district — Petition process. - (a) To qualify for designation as an agricultural district, a district shall initially contain at least two hundred fifty (250) contiguous acres and may include any number of individual property ownerships; however, no single ownership shall contain less than fifteen (15) acres. This chapter shall not alter the eligibility requirements or any other provision of the Agricultural, Forest and Open Space Land Act, compiled in title 67, chapter 5, part 10.
- (b) Agricultural districts can only include ownerships engaged in agricultural production.
- (c) Landowners must submit a petition to the local soil and water conservation district board of supervisors requesting designation of an agricultural district. The petition shall include the following information:
- (1) A general description of the proposed agricultural district including total number of ownerships, total acreage, land use information, social and economic information about the respective area of the county, and potential impacts of development on agricultural production;
- (2) Location of the proposed agricultural district boundary on a standard United States geological survey quadrangle map (1:2000 scale);
- (3) Location of the proposed agricultural district boundary on the local county tax assessor map, including location and identification of each ownership within the agricultural district as well as identification of all ownerships adjacent to the agricultural district;
- (4) A description of the type and extent of agricultural production activity for each ownership within the proposed agricultural district; and
- (5) Other pertinent information as the soil and water conservation district board of supervisors may require to evaluate the petition.
- (d) Individual ownership participation in an agricultural district is entirely voluntary, and no land shall be included in the agricultural district without the consent of the owner.
- (e) Upon receipt of a petition, the local soil and water conservation district board of supervisors shall notify the county commissioner and/or any local or regional planning or zoning body that may apply by sending a copy of the petition to such body.
- (f) In evaluating a petition for the establishment of an agricultural district, the local soil and water conservation district board of supervisors shall consider the following:
- (1) The capability of the land to support continued agricultural production as indicated by soil conditions, climate, topography, and other natural conditions;
- (2) The ability of the local, regional, state, and international markets to support continued agricultural production; and
- (3) Any matter that might be relevant to evaluation of the petition.
History (2)
- Acts 1995, ch. 465, § 5
- 2021, ch. 203, § 10.
§ 43-34-105. Approval and repeal of districts. - (a) Upon review of a petition, the local soil and water conservation district board of supervisors may approve designation of an agricultural district. A designated agricultural district shall be established for a period of five (5) years and reviewed for redesignation every five (5) years thereafter. However, the soil and water conservation district may review the status of designation at any time upon the written request and justification of the respective county mayor or city manager or upon a decision of the board of supervisors that such a review is appropriate. The soil and water conservation district board of supervisors may sustain or repeal designation of an agricultural district based upon the following:
- (1) The continued viability of the agricultural district. An agricultural district can become reduced in acreage based upon the voluntary withdrawal of any of the ownerships. However, the agricultural district shall cease to exist if the total designated acreage drops below twenty (20) acres;
- (2) The impacts and consequences of proposed land development; and
- (3) Other factors that the board of supervisors may find relevant.
- (b) Any ownership or any successor heir of the ownership within an agricultural district may withdraw from the agricultural district upon notifying the local soil and water conservation district in writing.
- (c) Landowners may resubmit petitions for designation or redesignation at any time to the local soil and water conservation district.
- (d) If a petition is rejected or the local soil and water conservation district board of supervisors repeals designation of an agricultural district, the ownerships within the agricultural district can appeal the decision of the board of supervisors to the Tennessee soil and water conservation commission. Based upon a review of all relevant information and following a public hearing, the Tennessee soil and water conservation commission may either sustain or overturn the decision of the local soil and water conservation district.
History (3)
- Acts 1995, ch. 465, § 6
- 2003, ch. 90, § 2
- 2021, ch. 203, §§ 11, 12.
§ 43-34-106. Procedures, limitations and responsibilities. - Upon establishment of an agricultural district the following procedures, limitations, and responsibilities apply:
- (1) Any ownership within an agricultural district that has received a notice of condemnation proceedings against its property may request the local soil and water conservation district to conduct a public hearing to review the project's impact on that property. The public hearing shall be held within forty-five (45) calendar days of the receipt of such summons of condemnation proceedings.
- (2) The local soil and water conservation district with the assistance of the Tennessee soil and water conservation commission shall provide appropriate notification about establishment of the agricultural district to local and state governmental agencies, local media, and other communication networks. The soil and water conservation district shall also issue appropriate certificates of recognition to the respective ownerships within the agricultural district.
- (3) The local soil and water conservation district in cooperation with the local roads superintendent, or the superintendent's counterpart, as well as the department of transportation, may erect signs as may be appropriate to recognize a designated agricultural district.
History (2)
- Acts 1995, ch. 465, § 7
- 2021, ch. 203, §§ 13, 14.
§ 43-34-107. Boundary designation. - An individual agricultural district may be comprised of ownerships residing in more than one (1) soil and water conservation district as long as the conditions of a contiguous boundary are satisfied. In such a case, each soil and water conservation district shall have the responsibility to meet the requirements of this chapter within the county of its jurisdiction.
History (2)
- Acts 1995, ch. 465, § 8
- 2021, ch. 203, § 15.
§ 43-34-108. Intent. - It is not the intent of the general assembly in adopting this chapter to in any way prohibit, restrict, inhibit, or affect municipalities and/or counties in the exercise of the specific powers delegated by title 6, chapter 51; title 13, chapter 3, parts 1, 3 and 4; title 13, chapter 4; title 13, chapter 7, parts 1 and 4; or to allow this to be done pursuant to this chapter. Furthermore, it is not the intent of the general assembly in adopting this chapter to in any way prohibit, restrict, inhibit, or affect any municipality or county in exercising any other power or authority the municipality or county may lawfully exercise, or to allow this to be done pursuant to this chapter. Nor is it the intent of the general assembly in adopting this chapter to affect a county's or municipality's power of eminent domain as provided in title 29, chapter 17, parts 1 and 2, in any way other than as described in § 43-34-106.
Chapter 35 Southern Dairy Compact § 43-35-101. Creation—General provisions. - The southern dairy compact is enacted into law by the Tennessee general assembly and is entered into on behalf of the state of Tennessee, with all other jurisdictions legally joining therein in a form substantially similar to the text adopted in this chapter. The compact shall become effective when enacted into law by at least two (2) other states within the compact group of states in a form substantially similar to the text as follows and when the consent of congress has been obtained. The text of the proposed compact is as follows:
-
- Southern Dairy Compact
- Article I. Statement of Purpose, Findings and Declaration of Policy
- § 1. Statement of purpose, findings and declaration of policy.
- The purpose of this compact is to recognize the interstate character of the southern dairy industry and the prerogative of the states under the United States constitution to form an interstate commission for the southern region. The mission of the commission is to take such steps as are necessary to assure continued viability of dairy farming in the south, and to assure consumers of an adequate, local supply of pure and wholesome milk.
- The participating states find and declare that the dairy industry is an essential agricultural activity of the south. Dairy farms, and associated suppliers, marketers, processors and retailers are an integral component of the region's economy. Their ability to provide a stable, local supply of pure, wholesome milk is a matter of great importance to the health and welfare of the region.
- The participating states further find that dairy farms are essential and they are an integral part of the region's rural communities. The farms preserve land for agricultural purposes and provide needed economic stimuli for rural communities.
- In establishing their constitutional regulatory authority over the region's fluid milk market by this compact, the participating states declare their purpose that this compact neither displace the federal order system nor encourage the merging of federal orders. Specific provisions of the compact itself set forth this basic principle.
- Designed as a flexible mechanism able to adjust to changes in a regulated marketplace, the compact also contains a contingency provision should the federal order system be discontinued. In that event, the interstate commission is authorized to regulate the marketplace in replacement of the order system. This contingent authority does not anticipate such a change, however, and should not be so construed. It is only provided should developments in the market other than establishment of this compact result in discontinuance of the order system.
- By entering into this compact, the participating states affirm that their ability to regulate the price which southern diary farmers receive for their product is essential to the public interest. Assurance of a fair and equitable price for diary farmers ensures their ability to provide milk to the market and the vitality of the southern diary industry, with all the associated benefits.
- Recent, dramatic price fluctuations, with a pronounced downward trend, threaten the viability and stability of the southern dairy region. Historically, individual state regulatory action had been an effective emergency remedy available to farmers confronting a distressed market. The federal order system, implemented by the Agricultural Marketing Agreement Act of 1937, establishes only minimum prices paid to producers for raw milk, without preempting the power of states to regulate milk prices above the minimum levels so established.
- In today's regional dairy marketplace, cooperative, rather than individual state action is needed to more effectively address the market disarray. Under our constitutional system, properly authorized states acting cooperatively may exercise more power to regulate interstate commerce than they may assert individually without such authority. For this reason, the participating states invoke their authority to act in common agreement, with the consent of congress, under the compact clause of the constitution.
- Article II. Definitions and Rules of Construction
- § 2. Definitions.
- For the purposes of this compact, and of any supplemental or concurring legislation enacted pursuant thereto, except as may be otherwise required by the context:
- (1) “Class I milk” means milk disposed of in fluid form or as a fluid milk product, subject to further definition in accordance with the principles expressed in section 3(b);
- (2) “Commission” means the southern dairy compact commission established by this compact;
- (3) “Commission marketing order” means regulations adopted by the commission pursuant to §§ 43-35-108 and 43-35-109 in place of a terminated federal marketing order or state dairy regulation. Such order may apply throughout the region or in any part or parts thereof as defined in the regulations of the commission. Such order may establish minimum prices for any or all classes of milk;
- (4) “Compact” means this interstate compact;
- (5) “Compact over-order price” means a minimum price required to be paid to producers for Class I milk established by the commission in regulations adopted pursuant to §§ 43-35-108 and 43-35-109, which is above the price established in federal marketing orders or by state farm price regulations in the regulated area. Such price may apply throughout the region or in any part or parts thereof as defined in the regulations of the commission;
- (6) “Milk” means the lacteral secretion of cows and includes all skim, butterfat, or other constituents obtained from separation or any other process. “Milk” is used in its broadest sense and may be further defined by the commission for regulatory purposes;
- (7) “Partially regulated plant” means a milk plant not located in a regulated area but having Class I distribution within such area. Commission regulations may exempt plants having such distribution or receipts in amounts less than the limits defined therein;
- (8) “Participating state” means a state which has become a party to this compact by the enactment of concurring legislation;
- (9) “Pool plant” means any milk plant located in a regulated area;
- (10) “Region” means the territorial limits of the states which are parties to this compact;
- (11) “Regulated area” means any area within the region governed by and defined in regulations establishing a compact over-order price or commission marketing order; and
- (12) “State dairy regulation” means any state regulation of dairy prices, and associated assessments, whether by statute, marketing order or otherwise.
- § 3. Rules of construction.
- (a) This compact shall not be construed to displace existing federal milk marketing orders or state dairy regulation in the region but to supplement them. In the event some or all federal orders in the region are discontinued, the compact shall be construed to provide the commission the option to replace them with one (1) or more commission marketing orders pursuant to this compact.
- (b) The compact shall be construed liberally in order to achieve the purposes and intent enunciated in article I, section 1. It is the intent of this compact to establish a basic structure by which the commission may achieve those purposes through the application, adaptation and development of the regulatory techniques historically associated with milk marketing, and to afford the commission broad flexibility to devise regulatory mechanisms to achieve the purposes of this compact. In accordance with this intent, the technical terms which are associated with market order regulation and which have acquired commonly understood general meanings are not defined herein but the commission may further define the terms used in this compact and develop additional concepts and define additional terms as it may find appropriate to achieve its purposes.
- Article III. Commission Established
- § 4. Commission established.
- There is hereby created a commission to administer the compact, composed of delegations from each state in the region. The commission shall be known as the southern dairy compact commission. A delegation shall include not less than three (3) nor more than five (5) persons. Each delegation shall include at least one (1) dairy farmer who is engaged in the production of milk at the time of appointment or reappointment, and one (1) consumer representative. Delegation members shall be residents and voters of, and subject to such confirmation process as is provided for in, the appointing state. Delegation members shall serve no more than three (3) consecutive terms with no single term of more than four (4) years, and be subject to removal for cause. In all other respects, delegation members shall serve in accordance with the laws of the state represented. The compensation, if any, of the members of a state delegation shall be determined and paid by each state, but their expenses shall be paid by the commission.
- § 5. Voting requirements.
- All actions taken by the commission, except for the establishment or termination of an over-order price or commission marketing order, and the adoption, amendment or rescission of the commission's bylaws, shall be by majority vote of the delegations present. Each state delegation shall be entitled to one (1) vote in the conduct of the commission's affairs. Establishment or termination of an over-order price or commission marketing order shall require at least a two-thirds (⅔) vote of the delegations present. The establishment of a regulated area which covers all or part of a participating state shall require also the affirmative vote of that state's delegation. A majority of the delegations from the participating states shall constitute a quorum for the conduct of the commission's business.
- § 6. Administration and management.
- (a) The commission shall elect annually from among the members of the participating state delegations a chair, a vice chair, and a treasurer. The commission shall appoint an executive director and fix the executive director's duties and compensation. The executive director shall serve at the pleasure of the commission, and together with the treasurer, shall be bonded in an amount determined by the commission The commission may establish through its bylaws an executive committee composed of one (1) member elected by each delegation.
- (b) The commission shall adopt bylaws for the conduct of its business by a two-thirds (⅔) vote, and shall have the power by the same vote to amend and rescind these bylaws. The commission shall publish its bylaws in convenient form with the appropriate agency or officer in each of the participating states. The bylaws shall provide for appropriate notice to the delegations of all commission meetings and hearings and of the business to be transacted at such meetings or hearings. Notice also shall be given to other agencies or officers of participating states as provided by the laws of those states.
- (c) The commission shall file an annual report with the secretary of agriculture of the United States, and with each of the participating states by submitting copies to the governor, both houses of the legislature, and the head of the state department having responsibilities for agriculture.
- (d) In addition to the powers and duties elsewhere prescribed in this compact, the commission has the power to:
- (1) Sue and be sued in any state or federal court;
- (2) Have a seal and alter the same at pleasure;
- (3) Acquire, hold, and dispose of real and personal property by gift, purchase, lease, license, or other similar manner, for its corporate purposes;
- (4) Borrow money and issue notes, to provide for the rights of the holders thereof and to pledge the revenue of the commission as security therefor, subject to the provisions of article VII, section 18;
- (5) Appoint such officers, agents, and employees as it may deem necessary, prescribe their powers, duties and qualifications; and
- (6) Create and abolish such offices, employments and positions as it deems necessary for the purposes of the compact and provide for the removal, term, tenure, compensation, fringe benefits, pension, and retirement rights of its officers and employees. The commission may also retain personal services on a contract basis.
- § 7. Rulemaking power.
- In addition to the power to promulgate a compact over-order price or commission marketing orders as provided by this compact, the commission is further empowered to make and enforce such additional rules and regulations as it deems necessary to implement any provisions of this compact, or to effectuate in any other respect the purposes of this compact.
- Article IV Powers of the Commission
- § 8. Powers to promote regulatory uniformity, simplicity, and interstate cooperation.
- The commission is hereby empowered to:
- (1) Investigate or provide for investigations or research projects designed to review the existing laws and regulations of the participating states, to consider their administration and costs, to measure their impact on the production and marketing of milk and their effects on the shipment of milk and milk products within the region;
- (2) Study and recommend to the participating states joint or cooperative programs for the administration of the dairy marketing laws and regulations and to prepare estimates of cost savings and benefits of such programs;
- (3) Encourage the harmonious relationships between the various elements in the industry for the solution of their material problems;
- (4) Conduct symposia or conferences designed to improve industry relations, or a better understanding of problems;
- (5) Prepare and release periodic reports on activities and results of the commission's efforts to the participating states;
- (6) Review the existing marketing system for milk and milk products and recommend changes in the existing structure for assembly and distribution of milk which may assist, improve or promote more efficient assembly and distribution of milk;
- (7) Investigate costs and charges for producing, hauling, handling, processing, distributing, selling and for all other services performed with respect to milk;
- (8) Examine current economic forces affecting producers, probable trends in production and consumption, the level of dairy farm prices in relation to costs, the financial conditions of dairy farmers, and the need for an emergency order to relieve critical conditions on dairy farms;
- § 9. Equitable farm prices.
- (a) The powers granted in this section and section 10 of this article shall apply only to the establishment of a compact over-order price, so long as federal milk marketing orders remain in effect in the region. In the event that any or all such orders are terminated, this article shall authorize the commission to establish one (1) or more commission marketing orders, as herein provided, in the region or parts thereof as defined in the order.
- (b) A compact over-order price established pursuant to this section shall apply only to Class I milk. Such compact over-order price shall not exceed one dollar and fifty cents ($1.50) per gallon at Atlanta, Georgia; however, this compact over-order price shall be adjusted upward or downward at other locations in the region to reflect differences in minimum federal order prices. Beginning in 1990, and using that year as a base, the foregoing one dollar and fifty cents ($1.50) per gallon maximum shall be adjusted annually by the rate of change in the consumer price index as reported by the bureau of labor statistics of the United States department of labor. For purposes of the pooling and equalization of an over-order price, the value of milk used in other use classifications shall be calculated at the appropriate class price established pursuant to the applicable federal order or state dairy regulation, and the value of unregulated milk shall be calculated in relation to the nearest prevailing class price in accordance with and subject to such adjustments as the commission may prescribe in regulations.
- (c) A commission marketing order shall apply to all classes and uses of milk.
- (d) The commission is hereby empowered to establish a compact over-order price for milk to be paid by pool plants and partially regulated plants. The commission is also empowered to establish a compact over-order price to be paid by all other handlers receiving milk from producers located in a regulated area. This price shall be established either as a compact over-order or by one (1) or more commission marketing orders. Whenever such a price has been established by either type of regulation, the legal obligation to pay such price shall be determined solely by the terms and purpose of the regulation without regard to the situs of the transfer of title, possession or any other factors not related to the purposes of the regulation and this compact. Producer-handlers as defined in an applicable federal market order shall not be subject to a compact over-order price. The commission shall provide for similar treatment of producer-handlers under commission marketing orders.
- (e) In determining the price, the commission shall consider the balance between production and consumption of milk and milk products in the regulated area, the costs of production including, but not limited to, the price of feed, the cost of labor including the reasonable value of the producer's own labor and management, machinery expense, and interest expense, the prevailing price for milk outside the regulated area, the purchasing power of the public and the price necessary to yield a reasonable return to the producer and distributor.
- (f) When establishing a compact over-order price, the commission shall take such other action as is necessary and feasible to help ensure that the over-order price does not cause or compensate producers so as to generate local production of milk in excess of those quantities necessary to assure consumers of an adequate supply for fluid purposes.
- (g) The commissions shall whenever possible enter into agreements with state or federal agencies for exchange of information or services for the purpose of reducing regulatory burden and cost of administering the compact. The commission may reimburse other agencies for the reasonable cost of providing these services.
- § 10. Optional provisions for pricing order.
- Regulations establishing a compact over-order price or a commission marketing order may contain, but shall not be limited to, any of the following:
- (1) Provisions classifying milk in accordance with the form in which or purpose for which it is used, or creating a flat pricing program;
- (2) With respect to a commission marketing order only, provisions establishing or providing a method for establishing separate minimum prices for each use classification prescribed by the commission, or a single minimum price for milk purchased from producers or associations of producers;
- (3) With respect to an over-order minimum price, provisions establishing or providing a method for establishing such minimum price for Class I milk;
- (4) Provisions for establishing either an over-order price or a commission marketing order may make use of any reasonable method for establishing such price or prices including flat pricing and formula pricing. Provision may also be made for location adjustments, zone differentials and for competitive credits with respect to regulated handlers who market outside the regulated area;
- (5) Provisions for the payment to all producers and associations of producers delivering milk to all handlers of uniform prices for all milk so delivered, irrespective of the uses made of such milk by the individual handler to whom it is delivered, or for the payment of producers delivering milk to the same handler of uniform prices for all milk delivered by them. The prices required by this provision shall not apply to milk marketed, diverted or otherwise delivered to a plant located outside the compact region;
- (A) With respect to regulations establishing a compact over-order price, the commission may establish either:
- (i) Provisions for each handler for the payment of uniform prices to producers for all milk delivered to such handler; or
- (ii) One (1) equalization pool within the regulated area for the sole purpose of equalizing returns to producers throughout the regulated area.
- (B) With respect to any commission marketing order, as defined in article II, § 2(9), which replaces one (1) or more terminated federal orders or state dairy regulations, the marketing area of now separate state or federal orders shall not be merged without the affirmative consent of each state, voting through its delegation, which is partly or wholly included within any such new marketing area.
- (6) Provisions requiring persons who bring Class I milk into the regulated area to make compensatory payments with respect to all such milk to the extent necessary to equalize the cost of milk purchased by handlers subject to a compact over-order price or commission marketing order. No such provisions shall discriminate against milk producers outside the regulated area. The provisions for compensatory payments may require payment of the difference between the Class I price required to be paid for such milk in the state of production by a federal milk marketing order or state dairy regulation and the Class I price established by the compact over-order price or commission marketing order;
- (7) Provisions specially governing the pricing and pooling of milk handled by partially regulated plants;
- (8) Provisions requiring that the account of any person regulated under the compact over-order price shall be adjusted for any payments made to or received by such persons with respect to a producer settlement fund of any federal or state milk marketing order or other state dairy regulation within the regulated area;
- (9) Provisions requiring the payment by handlers of an assessment to cover the costs of the administration and enforcement of such order pursuant to article VII, section 18(a);
- (10) Provisions for reimbursement to participants of the Women, Infants and Children Special Supplemental Food Program of the United States Child Nutrition Act of 1966; and
- (11) Other provisions and requirements as the commission may find are necessary or appropriate to effectuate the purposes of this compact and to provide for the payment of fair and equitable minimum prices to producers.
- Article V. Rulemaking Procedure
- Before promulgation of any regulations establishing a compact over-order price or commission marketing order, including any provision with respect to milk supply under article IV, section 9(f), or amendment thereof, as provided in article IV, the commission shall conduct an informal rulemaking proceeding to provide interested persons with an opportunity to present data and views. Such rulemaking proceeding shall be governed by section 4 of the federal Administrative Procedure Act, as amended (5 U.S.C. § 553). In addition, the commission shall, to the extent practicable, publish notice of rulemaking proceedings in the official register of each participating state. Before the initial adoption of regulations establishing a compact over-order price or a commission marketing order and thereafter before any amendment with regard to prices or assessments, the commission shall hold a public hearing. The commission may commence a rulemaking proceeding on its own initiative or may in its sole discretion act upon the petition of any person including individual milk producers, any organization of milk producers or handlers, general farm organizations, consumer or public interest groups, and local, state or federal officials.
- § 12. Findings and referendum.
- In addition to the concise general statement of basis and purpose required by section 4(b) of the federal Administrative Procedure Act, as amended (5 U.S.C. § 553(c)), the commission shall make findings of fact with respect to:
- (1) Whether the public interest will be served by the establishment of minimum milk prices to dairy farmers under article IV;
- (2) What level of prices will assure that producers receive a price sufficient to cover their costs of production and will elicit an adequate supply of milk for the inhabitants of the regulated area and for manufacturing purposes;
- (3) Whether the major provisions of the order, other than those fixing minimum milk prices, are in the public interest and are reasonably designed to achieve the purposes of the order; and
- (4) Whether the terms of the proposed regional order or amendment are approved by producers as provided in section 13 of this article;
- § 13. Producer referendum.
- (a) For the purpose of ascertaining whether the issuance or amendment of regulations establishing a compact over-order price or a commission marketing order, including any provision with respect to milk supply under article IV, section 9(f), is approved by producers, the commission shall conduct a referendum among producers. The referendum shall be held in a timely manner, as determined by regulation of the commission. The terms and conditions of the proposed order or amendment shall be described by the commission in the ballot used in the conduct of the referendum, but the nature, content, or extent of such description shall not be a basis for attacking the legality of the order or any action relating thereto.
- (b) An order or amendment shall be deemed approved by producers if the commission determines that it is approved by at least two-thirds (⅔) vote of the voting producers who, during a representative period determined by the commission, have been engaged in the production of milk, the price of which would be regulated under the proposed order or amendment.
- (c) In order to ensure that all milk producers are informed regarding the proposed order, the commission shall notify all milk producers that an order is being considered and that each producer may register the producer's approval or disapproval with the commission directly.
- (d) Any producer may obtain a ballot from the commission in order to register approval or disapproval of the proposed order. No form of block voting will be allowed.
- § 14. Termination of over-order price or marketing order.
- (a) The commission shall terminate any regulations establishing an over-order price or commission marketing order issued under this article whenever it finds that such order or price obstructs or does not tend to effectuate the declared policy of this compact.
- (b) The commission shall terminate any regulations establishing an over-order price or a commission marketing order issued under this article whenever it finds that such termination is favored by a majority of the producers who, during a representative period determined by the commission, has been engaged in the production of milk, the price of which is regulated by such order; but such termination shall be effective only if announced on or before such date as may be specified in such marketing agreement or order.
- (c) The termination or suspension of any order or provision thereof shall not be considered an order within the meaning of this article and shall require no hearing, but shall comply with the requirements for informal rulemaking prescribed by section 4 of the federal Administrative Procedure Act, as amended (5 U.S.C. § 553).
- Article VI Enforcement
- § 15. Records; reports; access to premises.
- (a) The commission may by rule and regulation prescribe record keeping and reporting requirements for all regulated persons. For purposes of the administration and enforcement of this compact, the commission is authorized to examine the books and records of any regulated person relating to the regulated person's milk business and for that purpose, the commission's properly designated officers, employees, or agents shall have full access during normal business hours to the premises and records of all regulated persons.
- (b) Information furnished to or acquired by the commission officers, employees, or its agents pursuant to this section shall be confidential and not subject to disclosure except to the extent that the commission deems disclosure to be necessary in any administrative or judicial proceeding involving the administration or enforcement of this compact, an over-order price, a compact marketing order, or other regulations of the commission. The commission may promulgate regulations further defining the confidentiality of information pursuant to this section. Nothing in this section shall be deemed to prohibit:
- (1) The issuance of general statements based upon the reports of a number of handlers, which do not identify the information furnished by any person; or
- (2) The publication by direction of the commission of the name of any person violating any regulation of the commission, together with a statement of the particular provisions violated by such person.
- (c) No officer, employee, or agent of the commission shall intentionally disclose information, by inference or otherwise, which is made confidential pursuant to this section. Any person violating the provisions of this section, upon conviction, commits a Class E felony, and shall be removed from office. The commission shall refer any allegation of a violation of this section to the appropriate state enforcement authority or United States attorney.
- § 16. Subpoena; hearings and judicial review.
- (a) The commission is hereby authorized and empowered by its members and its properly designated officers to administer oaths and issue subpoenas throughout all signatory states to compel the attendance of witnesses and the giving of testimony and the production of other evidence.
- (b) Any handler subject to an order may file a written petition with the commission stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. The handler shall thereupon be given an opportunity for a hearing upon such petition, in accordance with regulations made by the commission. After such hearing, the commission shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law.
- (c)
- (1) The district courts of the United States in any district in which such handler is an inhabitant, or has a principal place of business, are hereby vested with jurisdiction to review such ruling, provided a complaint for that purpose is filed within thirty (30) days from the date of the entry of such ruling. Service of process in such proceedings may be had upon the commission by delivering to it a copy of the complaint. If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the commission with directions either to:
- (A) Make such ruling as the court shall determine to be in accordance with law; or
- (B) Take such further proceedings as, in its opinion, the law requires.
- (2) The pendency of proceedings instituted pursuant to subdivision (c)(1) shall not impede, hinder, or delay the commission from obtaining relief pursuant to section 17. Any proceedings brought pursuant to section 17, except where brought by way of counterclaim in proceedings instituted pursuant to this section, shall abate whenever a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this section.
- § 17. Enforcement with respect to handlers.
- (a) Any violation by a handler of the provisions of regulations establishing an over-order price or a commission marketing order, or other regulations adopted pursuant to this compact shall:
- (1) Constitute a violation of the laws of each of the signatory states. Such violation shall render the violator subject to a civil penalty in an amount as may be prescribed by the laws of each of the participating states, recoverable in any state or federal court of competent jurisdiction. Each day such violation continues constitutes a separate violation; and
- (2) Constitute grounds for the revocation of license or permit to engage in the milk business under the applicable laws of the participating states.
- (b) With respect to handlers, the commission shall enforce the provisions of this compact, regulations establishing an over-order price, a commission marketing order or other regulations adopted hereunder by:
- (1) Commencing an action for legal or equitable relief brought in the name of the commission of any state or federal court of competent jurisdiction; or
- (2) Referral to the state agency for enforcement by judicial or administrative remedy with the agreement of the appropriate state agency of a participating state.
- (c) With respect to handlers, the commission may bring an action for injunction to enforce the provisions of this compact or the order or regulations adopted thereunder without being compelled to allege or prove that an adequate remedy of law does not exist.
- Article VII. Finance
- § 18. Finance of start-up and regular costs.
- (a) To provide for its start-up costs, the commission may borrow money pursuant to its general power under article III, section 6(d)(4). In order to finance the costs of administration and enforcement of this compact, including payback of start-up costs, the commission is hereby empowered to collect an assessment from each handler who purchases milk from producers within the region. If imposed, this assessment shall be collected on a monthly basis for up to one (1) year from the date the commission convenes, in an amount not to exceed $.015 per hundred weight of milk purchased from producers during the period of the assessment. The initial assessment may apply to the projected purchases of handlers for the two-month period following the date the commission convenes. In addition, if regulations establishing an over-order price or a compact marketing order are adopted, they may include an assessment for the specific purpose of their administration. These regulations shall provide for establishment of a reserve for the commission's ongoing operating expenses.
- (b) The commission shall not pledge the credit of any participating state or of the United States. Notes issued by the commission and all other financial obligations incurred by it shall be its sole responsibility and no participating state or the United States shall be liable therefor.
- § 19. Audit and accounts.
- (a) The commission shall keep accurate accounts of all receipts and disbursements, which shall be subject to the audit and accounting procedures established under its rules. In addition, all receipts and disbursements of funds handled by the commission shall be audited yearly by a qualified public accountant and the report of the audit shall be included in and become part of the annual report of the commission.
- (b) The accounts of the commission shall be open at any reasonable time for inspection by duly constituted officers of the participating states and by any persons authorized by the commission.
- (c) Nothing contained in this article shall be construed to prevent commission compliance with laws relating to audit or inspection of accounts by or on behalf of any participating state or of the United States.
- Article VIII. Entry and Force; Additional Members and Withdrawal
- § 20. Entry into force; additional members.
- The compact shall enter into force effective when enacted into law by any three (3) states of the group of states composed of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia and West Virginia and when the consent of congress has been obtained.
- § 21. Withdrawal from compact.
- Any participating state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until one (1) year after notice in writing of the withdrawal is given to the commission and the governors of all other participating states. No withdrawal shall affect any liability already incurred by or chargeable to a participating state prior to the time of such withdrawal.
- § 22. Severability.
- If any part or provision of this compact is adjudged invalid by any court, such judgment shall be confined in its operation to the part or provision directly involved in the controversy in which such judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this compact. In the event congress consents to this compact subject to conditions, the conditions shall not impair the validity of this compact when the conditions are accepted by three (3) or more compacting states. A compacting state may accept the conditions of congress by implementation of this compact.
§ 43-35-102. Delegates from Tennessee to the southern dairy compact. - (a) Five (5) delegates from Tennessee shall be appointed by the governor to represent the state on the southern dairy compact commission, created and provided for in article III of the compact contained in § 43-35-101. The delegates shall include two (2) dairy producers who are engaged in the production of milk at the time of appointment or reappointment, one (1) consumer representative, one (1) dairy processor, and one (1) delegate at large.
- (b) Each delegate shall serve for a term of four (4) years and shall serve diligently and conscientiously and shall strive to achieve the purposes of the southern dairy compact.
- (c) Each appointment shall be submitted to the house of representatives and the senate for confirmation. Confirmation shall be accomplished by the passage of a joint resolution originating in either house.
- (d) Vacancies in delegate positions shall be filled in the same manner as the original appointments for the unexpired portion of the vacant delegate's position.
- (e) Delegates shall receive a per diem not to exceed fifty dollars ($50.00) per day for service incurred in the performance of their duties as delegates. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
- (f) The delegation shall establish procedures determining how its vote will be cast in the conduct of the commission's affairs.
§ 43-35-103. Violations. - (a) No person shall violate this part, the southern dairy compact, or any rules or regulations adopted pursuant to either this chapter or the compact.
- (b) In addition to any other penalties provided by law, a civil penalty of one thousand dollars ($1,000) may be imposed for each violation, licenses may be revoked or suspended, or an additional civil penalty may be imposed in lieu of revocation or suspension.
- (c) Each day on which a violation occurs is a separate violation.
§ 43-35-104. Effective date of compact. - (a) This compact shall become effective when all of the following have occurred:
- (1) When the governor has executed the compact on behalf of this state and has caused a verified copy of the compact to be filed with the secretary of state;
- (2) When the commissioner of agriculture has certified to the governor and to the general assembly that two (2) or more of the other states named in § 43-35-101 article VII, section 20 have ratified the compact in a form substantially similar to this enactment; and
- (3) When the consent of congress has been obtained.
- (b) The governor is authorized and directed to take such action as may be necessary to complete the exchange of official documents between this state and any other state ratifying this compact.
§ 43-35-105. Compact administrator. - (a) The compact administrator for this state shall be the commissioner of agriculture. The duties of the compact administrator shall be deemed a regular part of the duties of the commissioner's office and the commissioner's expenses as compact administrator become a charge upon the funds of the department of agriculture.
- (b) The commissioner, as compact administrator, shall be vested with all powers provided for in the compact and all the powers necessary or incidental to the carrying out of the compact in every particular.
§ 43-35-106. Acquisition of information pertaining to the dairy industry. - The commissioner of agriculture may, by lawful means, obtain information pertaining to the dairy industry that the commissioner deems necessary to carry out the purposes of this part and the southern dairy compact. Such information may be utilized by the commissioner, the delegates, and the commission.
§ 43-35-107. Rules and regulations. - The commissioner of agriculture is authorized to promulgate such rules and regulations, in accordance with the Uniform Administrative Procedures Act, compiled at title 4, chapter 5, as are necessary to carry out the purposes of this part and the southern dairy compact.
§ 43-35-110. Obligations in excess of appropriations—Unlawful. - It is unlawful for the compact administrator or the commissioner's representative, and/or the members of the commission representing the state of Tennessee, to make any agreement, to create any obligation, or to commit the state for any funds, moneys or property in excess of the amounts on hand and/or the amount of appropriation for the biennium. Any such agreement, obligation or commitment shall be null and void. Such agreements, obligations or commitments shall be approved by the attorney general and reporter prior to their execution by the proper officials of the state of Tennessee.
History (1)
- Acts 1998, ch. 749, § 11.
Chapter 36 Tennessee Tobacco Farmers Certifying Board [Repealed] § 43-36-101. [Repealed]
History (2)
- Acts 1999, ch. 175, § 2
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
§ 43-36-102. [Repealed]
History (2)
- Acts 1999, ch. 175, § 3
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
§ 43-36-103. [Repealed]
History (2)
- Acts 1999, ch. 175, § 4
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
§ 43-36-104. [Repealed]
History (2)
- Acts 1999, ch. 175, § 5
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
§ 43-36-105. [Repealed]
History (2)
- Acts 1999, ch. 175, § 6
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
§ 43-36-106. [Repealed]
History (2)
- Acts 1999, ch. 175, § 7
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
§ 43-36-107. [Repealed]
History (2)
- Acts 1999, ch. 175, § 8
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
§ 43-36-108. [Repealed]
History (2)
- Acts 1999, ch. 175, § 9
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
§ 43-36-109. [Repealed]
History (2)
- Acts 1999, ch. 175, § 10
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
§ 43-36-110. [Repealed]
History (2)
- Acts 1999, ch. 175, § 11
- repealed by Acts 2014, ch. 503, § 2, effective February 28, 2014.
Chapter 37 Biobased Products for Farmers and Rural Development § 43-37-101. Short title. - This act shall be known and may be cited as the “Biobased Products for Farmers and Rural Development Act of 2000.”
§ 43-37-102. Chapter definitions. - As used in this chapter, unless the context clearly requires otherwise:
- (1) “Ag Fiber Technology” means a unique public/private sector coalition organized by Agro-Tech Communications of Memphis, Tennessee and based at Agricenter International in Memphis, Tennessee. Ag Fiber Technology is comprised of environmental organizations, universities, research institutions, and private corporations that share the goal of advancing biobased products through the commercialization of agricultural fibers;
- (2) “Agricultural biomass” means crop residues from commodity crops such as wheat, corn, cotton and new crops such as switchgrass. “Agricultural biomass” has unique and strategic positioning in expanding markets for power, fuel and chemicals;
- (3) “Agricultural fiber” means any fiber material derived from an agricultural crop including, but not limited to, corn stover, cotton, kenaf, rice straw, switchgrass, and wheat straw. Agricultural fibers are the building blocks of biobased products and contain cellulose, lignocellulose and other properties desired by industry;
- (4) “Bast fiber crop” means crops such as kenaf that are comprised of an outer fiber “bast” and an inner fiber “core” or “hurd”. Bast fiber crops are utilized in new markets including building materials, pulp and paper, and absorbency products;
- (5) “Biobased product” means a commercial or industrial product (other than food or feed) that utilizes biological products or renewable domestic agricultural (plant, animal, and marine) or forestry materials. “Biobased product” includes building products, chemicals, fuels, lubricants, plastics, and paper derived from agricultural materials;
- (6) “Bioenergy initiative” means a national partnership coordinated by the United States department of energy to develop an integrated industry to produce power, fuel and chemicals from sources including agricultural biomass; and
- (7) “Industrial utilization” means the products and processes that utilize agricultural materials in non-food, non-feed commercial products. Industrial utilization projects in the United States have included a thirty-five million dollar ($35,000,000) kenaf auto component facility in Indiana; building materials from wheat straw in Idaho and North Dakota; and the expanded use of ethanol in the mid-west.
§ 43-37-103. Unauthorized plants and substances. - Nothing in this chapter shall be construed to authorize the development of or research relative to any strain or variety of cannabis other than hemp, as defined in § 43-27-101.
History (3)
- Acts 2000, ch. 838, § 3
- 2014, ch. 916, § 6
- 2019, ch. 87, § 8.
§ 43-37-104. Findings of general assembly. - (a) The general assembly finds that the development of biobased products, agricultural biomass, bast fiber crops and industrial utilization is in the best interest of Tennessee's economy and agriculture. The general assembly recognizes the importance of agricultural fibers as the basic building blocks for biobased products.
- (b) The general assembly finds that the development of biobased products, agricultural biomass, bast fiber crops and industrial utilization would reduce dependence on foreign oil imports; enhance energy security; reduce environmental emissions of harmful pollutants; decrease greenhouse gas emissions; increase profitability for agricultural biomass commercial activities; revitalize rural areas with new markets and revenue streams; and would provide greater consumer choices for power, fuel and commercial products.
- (c) The general assembly finds that cooperation with the United States department of energy and United States department of agriculture's bioenergy initiative, Oak Ridge national laboratory, Tennessee State University, the University of Tennessee and other entities in Tennessee that are developing biobased products, agricultural biomass, bast fiber crops and industrial utilization is in the best interest of Tennessee's economy, environment and agriculture.
- (d) The general assembly finds that the Ag Fiber Technology program at Agricenter International has a strategic role in the development of biobased products, agricultural biomass, bast fiber crops and industrial utilization through its focus on commercializing agricultural fibers as the basic building blocks for biobased products.
- (e) The purpose of this chapter is to promote the economy, agriculture, public safety, health and welfare of the citizens of Tennessee, while promoting new opportunities for farmers and rural economies.
§ 43-37-105. Authority of commissioner. - The commissioner of agriculture is authorized to promulgate rules and regulations to effectuate the purposes of this chapter. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Chapter 38 Tennessee Processing Cooperative Law Part 1 General Provisions § 43-38-103. Chapter definitions. - As used in this chapter, unless the context otherwise requires:
- (1) “Address” means mailing address, including a zip code. In the case of a registered address, the term means the mailing address and the actual office location, which may not be a post office box;
- (2) “Articles” or “articles of organization” means articles of organization as originally filed and subsequently amended;
- (3) “Association” means an organization conducting business under a cooperative plan under the laws of this state;
- (4) “Board” or “board of directors” means the board of directors of a cooperative;
- (5) “Business entity” means a corporation, limited liability company, limited liability partnership or other legal entity, association or body vested with the power or function of a legal entity;
- (6) “Bylaws” means a written agreement described in § 43-38-301 among the members concerning the cooperative;
- (7) “Commissioner” means the commissioner of agriculture;
- (8) “Cooperative” means an association organized under this title conducting business on a cooperative plan as provided under this chapter;
- (9) “Distribution” means a direct or indirect transfer of money or other property, except its own membership interests, with or without consideration, or an incurrence or issuance of indebtedness, whether directly or indirectly, including through a guaranty, by a cooperative to or for the benefit of any of its members in respect of membership interests. A distribution may be in the form of an interim distribution or a liquidation distribution; a purchase, redemption, or other acquisition of its membership interests; a distribution of indebtedness, which includes the incurrence of indebtedness, whether directly or indirectly, including through a guaranty, for the benefit of the members, or otherwise;
- (10) “Domestic business entity” means a business entity organized under the laws of this state;
- (11) “Filed with the secretary of state” means that a document meeting the applicable requirements of this chapter, signed and accompanied by the required filing fee, has been delivered to the secretary of state of this state. The secretary of state shall endorse on the document the word “Filed” or a similar word determined by the secretary of state and the month, day, and year of filing, record the document in the office of the secretary of state, and return the document to the person or entity who delivered it for filing;
- (12) “Financial rights” means a member's right to:
- (A) Share in profits and losses as provided in §§ 43-38-901 and 43-38-902; and
- (B) Share in distributions as provided in §§ 43-38-901 and 43-38-902;
- (13) “Governance rights” means a right to vote on one (1) or more matters and all a member's rights as a member in the cooperative other than financial rights;
- (14) “Majority” means, with respect to a vote of the members, if voting on a per capita basis, a majority in number of the members entitled to vote on a specific matter, or if the voting is determined otherwise, a majority of the voting interest, which may be expressed as a percentage, entitled to vote on a specific matter, and with respect to a vote of the directors, a majority in number of the directors entitled to vote on a specific matter;
- (15) “Member” means a person or entity reflected on the books of the cooperative as the owner of governance rights of a membership interest of the cooperative and includes patron and nonpatron members;
- (16) “Membership interest” means a member's interest in a cooperative consisting of a member's financial rights, a member's right to assign financial rights, a member's governance rights and a member's right to assign governance rights. Membership interest includes patron membership interests and nonpatron membership interests;
- (17) “Members' meeting” means a regular or special members' meeting;
- (18) “Nonpatron membership interest” means a membership interest that does not require the holder to conduct patronage business for or with the cooperative to receive financial rights or distributions;
- (19) “Patron” means a person or entity who conducts patronage business with the cooperative;
- (20) “Patron member” means a member holding a patron membership interest;
- (21) “Patron membership interest” means the membership interest requiring the holder to conduct patronage business for or with the cooperative, as specified by the cooperative to receive financial rights or distributions;
- (22) “Patronage” means business, transactions, or services done for or with the cooperative as defined by the cooperative;
- (23) “Required records” are those records required to be maintained under § 43-38-118;
- (24) “Secretary of state” means the person who holds the office of secretary of state of Tennessee. A filing with the secretary of state occurs by a proper filing with the office of the secretary of state. An action required by the secretary of state may be performed by employees or agents of the office of the secretary of state;
- (25) “Signed” means that the signature of a person has been written on a document, and, with respect to a document required by this chapter to be filed with the secretary of state, means that the document has been signed by a person authorized to do so by this chapter, the articles or bylaws, or by a resolution approved by the directors or the members. A signature on a document may be a facsimile affixed, engraved, printed, placed, stamped with indelible ink, transmitted by facsimile or electronically or in any other manner reproduced on the document;
- (26) “Surviving entity” means the entity resulting from a merger;
- (27) “Termination” means the end of a cooperative's existence as a legal entity and occurs when the articles of termination are filed with the secretary of state under § 43-38-1014 or is considered filed with the secretary of state under § 43-38-122; and
- (28) “Written action” means a written document signed by those persons required to take the action described.
§ 43-38-104. Notice. - (a) Notice under this chapter shall be in writing, except that oral notice is effective if it is reasonable under the circumstances and not prohibited by the articles or bylaws.
- (b) Notice may be communicated in person, by telephone, telegraph, teletype, or other form of wire or wireless communication, or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published, or by radio, television, or other form of public broadcast communication.
- (c) Written notice by a domestic cooperative to its members, if in a comprehensible form, is effective when mailed, if mailed postpaid and correctly addressed to the member's address shown in the cooperative's current record of members.
- (d) Written notice to a domestic cooperative may be addressed to its registered agent at its registered office or to the cooperative or its secretary at its principal office shown in its most recent annual report.
- (e) Except as provided in subsection (c), written notice, if in a comprehensible form, is effective at the earliest of the following:
- (1) When received;
- (2) Five (5) days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed;
- (3) On the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; or
- (4) Twenty (20) days after its deposit in the United States mail, as evidenced by the postmark if mailed correctly addressed, and with other than first class, registered or certified postage affixed.
- (f) Oral notice is effective when communicated if communicated in a comprehensible manner.
- (g) If this chapter prescribes notice requirements for particular circumstances, those requirements govern. If the articles or bylaws prescribe notice requirements not inconsistent with this section or other provisions of this chapter, those requirements govern.
§ 43-38-105. Name of cooperative. - (a) The name of a cooperative shall distinguish the cooperative upon the records in the office of the secretary of state from the name of a domestic or foreign business entity, authorized or registered to do business in this state or a name the right to which is, at the time of organization, reserved or provided for by law.
- (b) A cooperative may apply to the secretary of state for authorization to use a name that is not distinguishable upon the secretary of state's records from one (1) or more of the names described in subsection (a). The secretary of state shall authorize use of the indistinguishable name applied for if:
- (1) The other cooperative or business entity consents to the use in writing and submits an undertaking in a form satisfactory to the secretary of state to waive its reservation or change its name to a name that is distinguishable upon the records of the secretary of state from the name of the applying cooperative;
- (2) The applicant delivers to the secretary of state a certified copy of the final judgment of a court of competent jurisdiction establishing the applicant's right to use the name applied for in this state; or
- (3) The other cooperative or business entity is under common control with the cooperative, consents to the use in writing, and both the other cooperative or business entity and the applicant consent in a form satisfactory to the secretary of state to use the same registered agent.
- (c) A domestic cooperative may elect to adopt an assumed name that complies with the requirements of subsections (a) and (b).
- (1) As used in this chapter, “assumed name” means any name used by the cooperative, other than the cooperative true name, except that the following shall not constitute the use of an assumed name:
- (A) The identification by a cooperative of its business with a trademark or service mark of which it is the owner or licensed user; and
- (B) The use of a name of a division, not separately organized; provided, that the cooperative also clearly discloses its name.
- (2) Before transacting any business in this state under an assumed name or names, the cooperative shall, for each assumed name, pursuant to resolution by its board of directors, execute and file in accordance with §§ 43-38-1101 and 43-38-1103, an application setting forth:
- (A) The true cooperative name;
- (B) The state or country under the laws of which it is organized;
- (C) That it intends to transact business under an assumed name; and
- (D) The assumed name that it proposes to use.
- (3) The right to use an assumed name shall be effective for five (5) years from the date of filing by the secretary of state. A cooperative may reserve or use no more than five (5) assumed names during the same period.
- (4) A cooperative shall renew the right to use its assumed name or names, if any, within the two (2) months preceding the expiration of such right, for a period of five (5) years, by filing an application to renew each assumed name and paying the renewal fee as prescribed by § 43-38-1103(a).
- (d) Any domestic cooperative may, pursuant to resolution by its governing body, change or cancel any or all of its assumed names by executing and filing, in accordance with §§ 43-38-1101 and 43-38-1103, an application setting forth:
- (1) The true cooperative name;
- (2) The state or country under the laws of which it is organized;
- (3) That it intends to cease transacting business under an assumed name by changing or canceling it;
- (4) The assumed name to be changed from or cancelled; and
- (5) If the assumed name is to be changed, the assumed cooperative name that the cooperative proposes to use.
- (e) Upon the filing of an application to change an assumed name, the cooperative shall have the right to use such assumed name for the period authorized by subsection (b).
- (f) The right to a domestic cooperative to use an assumed name shall be cancelled by the secretary of state if:
- (1) The cooperative fails to renew an assumed name;
- (2) The cooperative has filed an application to change or cancel an assumed name; or
- (3) A domestic cooperative has been dissolved.
- (g) Nothing in this section or in § 43-38-106 shall abrogate or limit the law as to unfair competition or unfair trade practice, or derogate from the common law, the principles of equity, or the statutes of this state or of the United States with respect to the right to acquire and protect trade names and trademarks.
§ 43-38-106. Reservation of cooperative name with secretary of state. - (a) A person may reserve the exclusive use of a cooperative name, including an assumed cooperative name, by delivering an application to the secretary of state for filing. The application must set forth the name and address of the applicant and the name proposed to be reserved. If the secretary of state finds that the cooperative name applied for meets the requirements of § 43-38-105 and is available, the secretary of state shall reserve the name for the applicant's exclusive use for a four-month period. Upon the expiration of the four-month period, the same or any other party may apply to reserve the same name.
- (b) The owner of a reserved cooperative name, including an assumed cooperative name, may transfer the reservation to another person by delivering to the secretary of state a notice of the transfer signed by the owner that states the name and address of the transferee.
- (c) The reservation of a specific name may be cancelled by filing with the secretary of state a notice, executed by the applicant or transferee, specifying the name reservation to be cancelled and the name and address of the applicant or transferee.
§ 43-38-107. Registered office and registered agent. - (a) Each cooperative shall have and continuously maintain in this state:
- (1) A registered office, which may be, but need not be, the same as its place of business;
- (2) A registered agent, which agent may be either an individual resident in this state whose business office is identical with the registered office, or a domestic or foreign business entity authorized to transact business in the state having a business office identical with the registered office.
- (b) If a registered agent resigns or is unable to perform the agent's duties, the domestic cooperative shall promptly designate another registered agent to the end that it shall at all times have a registered agent in this state.
§ 43-38-108. Change of registered office or registered agent. - (a) A cooperative may change its registered office or agent, or both, upon filing in the office of the secretary of state a statement of change setting forth:
- (1) The name of the cooperative;
- (2) If the address of its current registered office is to be changed, the address to which the registered office is to be changed, and the zip code for the office, and the county in which the office is located;
- (3) If its current registered agent is to be changed, the name of its new registered agent; and
- (4) That the address of its registered office and the address of the business office of its registered agent, as changed, will be identical.
- (b) If a registered agent changes the street address of the registered agent's business office, the registered agent may change the street address of the registered office of any cooperative for which that registered agent is the registered agent by notifying the cooperative in writing of the change, either manually or in facsimile, and delivering to the secretary of state for filing a statement that companies with the requirement of subsection (a) and states that the cooperative has been notified of the change. The statement shall be signed and delivered to the secretary of state. If the secretary of state finds that the statement conforms to this chapter, the secretary of state shall file the statement in the secretary of state's office, and upon filing the change of address of the registered office or the appointment of a new registered agent or both, as the case may be is effective.
§ 43-38-109. Resignation of registered agent. - (a) Any registered agent of a cooperative may resign as the registered agent's agency appointment by signing and filing with the secretary of state an original statement of resignation accompanied by the registered agent's certification that the registered agent has mailed a copy of the original statement of resignation to the principal office by certified mail.
- (b) The agency appointment is terminated, and the registered office discontinued, if so provided, on the date on which the statement is filed by the secretary of state.
§ 43-38-110. Service on cooperative. - (a) A domestic cooperative's registered agent is the cooperative's agent for service of process, notice, or demand required or permitted by law to be served on the cooperative.
- (b) Whenever a domestic cooperative fails to appoint or maintain a registered agent in this state, or whenever its registered agent cannot be found with reasonable diligence, then the secretary of state shall be an agent of such cooperative on whom any such process, notice or demand may be served.
- (c) This section does not prescribe the only means, or necessarily the required means, of service on a domestic cooperative.
§ 43-38-111. Service — Role of secretary of state. - (a) Service on the secretary of state, when the secretary of state is an agent for a domestic cooperative as provided in § 43-38-110(b), of any process, notice or demand shall be made by delivering to the office of the secretary of state the original and one (1) copy of such process, notice, or demand, duly certified by the clerk of the court in which the suit or action is pending or brought, together with the proper fee. A statement that identifies which of the grounds, as listed in § 43-38-104(b), for service on the secretary of state is applicable, must be included. The office of the secretary of state shall endorse the time of receipt upon the original and copy and immediately shall send the copy, along with a written notice that service of the original was also made, by registered or certified mail, with return receipt requested, addressed to the cooperative at its registered office or principal office as shown in the records on file in the secretary of state's office or as shown in the official registry of the state or country in which the cooperative is organized. If none of the previously mentioned addresses is available to the secretary of state, service may be made on any one (1) of the organizers at the address set forth in the articles. The secretary of state may require the plaintiff, or complainant, as the case may be, or plaintiff's attorney to furnish the latter address.
- (b) The refusal or failure of a cooperative to accept delivery of the registered or certified mail provided for in subsection (a), or the refusal or failure to sign the return receipt, shall not affect the validity of such service; and any such cooperative refusing or failing to accept delivery of such registered or certified mail shall be charged with knowledge of the contents of any process, notice or demand contained in the registered or certified mail.
- (c) When the registered or certified mail return receipt is received by the office of the secretary of state or when a domestic cooperative refuses or fails to accept delivery of the registered or certified mail and it is returned to the office of the secretary of state, the office of the secretary of state shall forward the receipt or the refused or undelivered mail to the clerk of the court in which the suit or action is pending, together with the original process, notice or demand, a copy of the notice the secretary of state sent to the defendant cooperative and the secretary of state's affidavit setting forth the secretary of state's compliance with this section. Upon receipt thereof, the clerk shall copy the affidavit on the rule docket of the court and shall mark it, the receipt or refused or undelivered mail, and the copy of notice as of the day received and place them in the file of the suit or action where the process and pleadings are kept, and such receipt or refused or undelivered mail, affidavit and a copy of the notice shall be and become a part of the technical record in the suit or action, and thereupon service on the defendant shall be complete. Service made under this section shall have the same legal force and validity as if the service had been made personally in this state.
- (d) Subsequent pleadings or papers permitted or required to be served on the defendant domestic cooperative may be served on the secretary of state as agent for the defendant cooperative in the same manner, at the same cost and with the same effect as process, notice or demand are served on the secretary of state as agent for the defendant cooperative under this section.
- (e) No appearance shall be required in the suit or action by the defendant domestic cooperative, nor shall any judgment be taken against the defendant domestic cooperative, in less than one (1) month after the date service is completed under this section.
- (f) The secretary of state shall keep a record of all processes, notices and demands served upon the secretary of state under this section, which record shall include the time of such service and the secretary of state's action with reference thereto.
§ 43-38-112. Fees and taxes. - Cooperatives created pursuant to this chapter shall be subject to the same fees and taxed in the same manner as nonprofit cooperative associations established pursuant to chapter 16 of this title.
History (1)
- Acts 2004, ch. 534, § 10.
§ 43-38-113. Powers of cooperative. - (a) In addition to the other powers listed in this section, unless the articles of organization provide otherwise, a cooperative as an agent or otherwise:
- (1) May perform every act and thing necessary or proper to the conduct of the cooperative's business or the accomplishment of the purposes of the cooperative;
- (2) Has other rights, powers, or privileges granted by the laws of this state to other cooperatives, except those that are inconsistent with the express provisions of this chapter; and
- (3) Has the powers given in this section.
- (b) A cooperative may:
- (1) Buy, sell, or deal in its own products, the products of the cooperative's individual members, patrons or nonmembers, the products of another cooperative association, or of its members or patrons, or the products of another person or entity. A cooperative may negotiate the price at which the products the cooperative is selling may be sold;
- (2) Enter into or become a party to a contract or agreement for the cooperative or for the cooperative's individual members or patrons or between the cooperative and its members;
- (3) Purchase and hold, lease, mortgage, encumber, sell, exchange and convey as a legal entity real estate, buildings and personal property as the business of the cooperative may require, including the sale or other disposition of assets required by the business of the cooperative as determined by the board;
- (4) Erect buildings or other structures or facilities on the cooperative's owned or leased property or on a right-of-way legally acquired by the cooperative;
- (5) Issue bonds or other evidence of indebtedness and may borrow money to finance the business of the cooperative;
- (6) Make advances to the cooperative's members or patrons on products delivered by the members or patrons to the cooperative;
- (7) Accept deposits of money from other cooperatives, associations or members from which it is constituted;
- (8) Loan or borrow money to or from individual members, cooperatives or associations from which it is constituted with security that it considers sufficient in dealing with the members, cooperatives, or associations;
- (9) Purchase, acquire, hold, or dispose of the ownership interests of another business entity, whether organized under the laws of this state or another state, and assume all rights, interests, privileges, responsibilities and obligations arising out of the ownership interests;
- (10) Acquire and hold ownership interests in another business entity organized under the laws of this state or another state of the United States, including a business entity organized:
- (A) As a federation of associations;
- (B) For the purpose of forming a district, state, or national marketing, sales or service agency; or
- (C) For the purpose of acquiring marketing facilities at terminal or other markets in this state or other states;
- (11) Purchase, own, and hold ownership interests, including stock and other equity interests, memberships, interests in nonstock capital, evidences of indebtedness of any domestic business entity when reasonably necessary or incidental to accomplish the purposes stated in the articles;
- (12) Exercise any and all fiduciary powers in relations with members, cooperatives, associations or business entities from which it is constituted;
- (13) Take, receive, and hold real and personal property, including the principal and interest of money or other funds and rights in a contract, in trust for any purpose not inconsistent with the purposes of the cooperative in its articles and may exercise fiduciary powers in relation to taking, receiving, and holding the real and personal property;
- (14) Sue and be sued, complain and defend in its corporate name;
- (15) Have a corporate seal, which may be altered at will, and use it, or a facsimile of it, by impressing or affixing it or in any other manner reproducing it;
- (16) Make and amend bylaws, not inconsistent with its articles of organization or with the laws of this state, for managing the business and regulating the affairs of the cooperative;
- (17) Make donations for the public welfare or for charitable, scientific or educational purposes;
- (18) Make payments or donations, or do any other act, not inconsistent with law, that furthers the business and affairs of the cooperative;
- (19) Procure insurance on the life of the directors, officers, and employees of the cooperative;
- (20) Accept gifts; and
- (21) Accept contributions under § 43-38-501.
History (1)
- Acts 2004, ch. 534, § 11.
§ 43-38-114. Marketing contracts. - (a) A cooperative and its patron member or patron may make and execute a marketing contract, requiring the patron member or patron to sell a specified portion of the patron member's or patron's agricultural product or specified commodity produced from a certain area exclusively to or through the cooperative or facility established by the cooperative.
- (b) If a sale is contracted to the cooperative, the sale shall transfer title to the product absolutely, except for a recorded lien or security interest, to the cooperative on delivery of the product or at another specified time if expressly provided in the contract. The contract may allow the cooperative to sell or resell the product of its patron member or patron with or without taking title to the product, and to pay the resale price to the patron member or patron, after deducting all necessary selling, overhead and other costs and expenses, including other proper reserves and interest.
- (c) A single term of a marketing contract shall not exceed ten (10) years, but a marketing contract may be made self-renewing for periods not exceeding five (5) years each, subject to the right of either party to terminate by giving written notice of the termination during a period of the current term as specified in the contract.
- (d) The bylaws or the marketing contract, or both, may set a specific sum as liquidated damages to be paid by the patron member or patron to the cooperative for breach of any provision of the marketing contract regarding the sale or delivery or withholding of a product and may provide that the member or patron shall pay the costs, premiums for bonds, expenses and fees if an action is brought on the contract by the cooperative. The remedies for breach of contract are valid and enforceable in the courts of this state. The provisions shall be enforced as liquidated damages and are not to be considered or regarded as a penalty.
- (e) If there is a breach or threatened breach of a marketing contract by a patron member or patron, the cooperative is entitled to an injunction to prevent the further breach of the contract and to a decree of specific performance of the contract. Pending the adjudication of the action after filing a certified complaint showing the breach or threatened breach and filing a sufficient bond, the cooperative is entitled to a temporary restraining order and preliminary injunction against the patron member or patron.
- (f) Any person who knowingly induces or attempts to induce any member or patron of a cooperative organized under this chapter to breach a marketing contract with the cooperative, or who maliciously and knowingly spreads false reports about the finances or management of the finances, shall be guilty of a Class B misdemeanor and subject to a fine only of not more than five hundred dollars ($500), for each such offense; provided however, that this section shall not apply to a bona fide creditor of such cooperative, or the agent or attorney of any such bona fide creditor, endeavoring to make collections of the indebtedness.
- (g) In addition to the penalty provided in subsection (f), the person, corporation or other entity may be liable to the cooperative for civil damages for any violation of subsection (f). Each violation shall constitute a separate offense and is subject to the penalties in this subsection (g) and subsection (f).
History (1)
- Acts 2004, ch. 534, § 12.
§ 43-38-115. Unclaimed property. - (a) A cooperative may, in lieu of paying or delivering to the state the unclaimed property specified in its report of unclaimed property, distribute the unclaimed property to a corporation or organization that is exempt from taxation. A cooperative making the election to distribute unclaimed property shall file with the secretary of state:
- (1) A verified written explanation of the proof of claim of an owner establishing a right to receive the abandoned property;
- (2) Any error in the presumption of abandonment;
- (3) The name, address, and exemption number of the corporation or organization to which the property was or is to be distributed; and
- (4) The approximate date of distribution.
- (b) This section does not alter the procedure provided by law for cooperatives to report unclaimed property to the state and the requirement that claims of owners are made to the cooperatives for a period following the publication of lists of abandoned property.
- (c) The right of an owner to unclaimed property held by a cooperative is extinguished when the property is disbursed by the cooperative to a tax-exempt organization in accordance with this section.
History (1)
- Acts 2004, ch. 534, § 12.
§ 43-38-116. Challenge of cooperative action. - (a) Except as provided in subsection (b), the validity of a cooperative's action may not be challenged on the ground that the cooperative lacks or lacked the power to act.
- (b) A cooperative power to act may be challenged in a proceeding by:
- (1) A member against the cooperative to enjoin the act;
- (2) The cooperative directly, derivatively, or through a receiver, trustee, or other legal representative, against an incumbent or former director, officer, employee or agent of the cooperative; or
- (3) The attorney general and reporter under § 43-38-1017.
- (c) In a member's proceeding under subdivision (b)(1) to enjoin an unauthorized cooperative act, the court may enjoin or set aside the act, if equitable and if all affected persons are parties to the proceeding, and may award damages for loss, other than anticipated profits, suffered by the cooperative or another party because of enjoining the unauthorized act.
History (1)
- Acts 2004, ch. 534, § 13.
§ 43-38-117. Limitation of liability. - (a)
- (1) Except as provided in subsections (e) and (f), a member, holder of financial interest, director, officer, employee or other agent of a cooperative does not have any personal obligation and is not otherwise personally liable for the acts, debts, liabilities, or obligations of the cooperative, whether they arise in contract, tort or otherwise.
- (2) A member, holder of financial interest, director, officer, employee or other agent of a cooperative does not have any personal obligation and is not otherwise personally liable for the acts or omissions of any other member, officer, director, employee or other agent of the cooperative.
- (3) Notwithstanding subsection (a), a member, holder of financial interest, director, officer, employee or other agent may become personally liable in contract, tort or otherwise by reason of that person's own acts or conduct.
- (b) The limited liability described in subsection (a) continues in full force regardless of any dissolution, winding up, and termination of a cooperative.
- (c) A member, holder of financial interest, director, or officer of a cooperative is not a proper party to a proceeding by or against a cooperative except:
- (1) Where the object of the proceeding is to enforce the person's right against or liability to the cooperative;
- (2) In a derivative action brought pursuant to this chapter, the articles or the bylaws; or
- (3) Where the proceeding asserts personal liability of the member, holder of financial interest, director or officer described in subdivision (a)(3).
- (d) Notwithstanding any other provision of this chapter to the contrary, each person, member, or employee required to collect or truthfully account for, and pay over to the department of revenue any tax collected from the customers of a cooperative shall be personally liable for such taxes in the manner as responsible persons of a corporation under § 67-1-1443.
- (e) The failure of a cooperative to observe the usual company formalities or requirements relating to the exercise of its cooperative powers or management of its business is not a ground for imposing personal liability upon the members, directors, officers, employees or other agents of the cooperative.
- (f)
- (1) Notwithstanding any provision to the contrary, the articles may provide that one (1) or more specifically identified members, as named in the articles, shall be personally liable for all of the debts, obligations and liabilities of the cooperative, and, if so, each such specifically identified member shall be liable to the same extent as a general partner in a general partnership; provided however, that:
- (A) In order to be effective, each member so identified must sign the articles, or an amendment to the articles containing this provision; and
- (B) Each member shall continue to be personally liable for debts, obligations and liabilities of the cooperative until the articles are amended to strike such member's name, but the amendment must be signed by the chief manager or secretary and any remaining members who continue to be identified in the articles as being personally liable for the debts, obligations and liabilities of the cooperative.
- (2) A member who is identified in the articles as being personally liable has the power to withdraw from the cooperative by filing an amendment to the articles stating that the member has withdrawn from the cooperative and shall not be liable for any future debts, obligations and liabilities of the cooperative; provided, that such an amendment to the articles shall be effective immediately, except with respect to parties that have reasonably relied upon the articles naming the person as individually liable for the debts, obligations and liabilities of the cooperative.
- (3) An amendment to the articles filed pursuant to subdivisions (f)(1) and (f)(2) is not effective against parties reasonably relying upon the articles until the passage of ninety (90) days from the filing of the amendment to the articles. Notwithstanding this subdivision (f)(3), the member or former member will continue to be liable for all debts and obligations of the cooperative incurred by the cooperative while the member assumed liability.
History (1)
- Acts 2004, ch. 534, § 16.
§ 43-38-118. Required records and information. - A cooperative shall keep at its principal executive office, or at another place or places within the United States determined by the board:
- (1) A current list of the full names and last-known business, residence or mailing addresses of the chief manager, secretary and each member and governor;
- (2) A current list of the full name and last-known business, residence, or mailing address of each assignee of financial rights and a description of the rights assigned;
- (3) A copy of the articles and all amendments to the articles;
- (4) Copies of the currently effective bylaws and any agreements concerning classes or series of membership interests;
- (5) Copies of the cooperative's federal, state, and local income tax returns and reports, if any, for the three (3) most recent years;
- (6) Financial statements required by § 43-38-119 and accounting records of the cooperative;
- (7) Records of all proceedings of members, if any;
- (8) Any written consents obtained from members under this chapter;
- (9) Records of all proceedings of the board of directors for the last three (3) years;
- (10) A statement of all contributions accepted under § 43-38-501, the identity of the contribution and the agreed value of the contribution;
- (11) A copy of all contribution agreements and contribution allowance agreements; and
- (12) A copy of the cooperative's most recent annual report delivered to the secretary of state under § 43-38-120.
History (1)
- Acts 2004, ch. 534, § 23.
§ 43-38-119. Preparation of annual reports. - (a) A cooperative shall prepare financial statements at least annually, which may be consolidated or combined statements of the cooperative and one (1) or more of its subsidiaries, as appropriate, that include a balance sheet as of the end of the reporting period and an income statement for that period. If financial statements are prepared for the cooperative on the basis of generally accepted accounting principles, the financial statements of any subsidiary must also be prepared on that basis. If requested in writing by any member or holder of financial rights, the cooperative shall furnish the statements to such person as set out in subsection (c).
- (b) If the annual financial statements are reported by a public accountant, the accountant's report must accompany them. If not, the statements must be accompanied by a statement of the chief manager or the person responsible for the cooperative's accounting records:
- (1) Stating that person's reasonable belief whether the statements were prepared on the basis of generally accepted accounting principles and, if not, describing the basis of preparation; and
- (2) Describing any respects in which the statements were not prepared on a basis for accounting consistent with the statements prepared for the preceding year.
- (c) A cooperative shall mail the annual financial statements to each requesting member or holder of financial rights, within one (1) month after notice of the request; provided however, that with respect to the financial statements for the most recently completed fiscal year, the statements shall be mailed to the member within four (4) months after the close of the fiscal year.
History (1)
- Acts 2004, ch. 534, § 23.
§ 43-38-120. Filing of annual reports — Required information — Currency of report — Time of filing. - (a) Each domestic cooperative shall deliver to the secretary of state for filing an annual report that sets forth:
- (1) The name of the cooperative and the jurisdiction under whose law it is incorporated;
- (2) The street address and zip code of its registered office and the name of its registered agent at that office in this state;
- (3) The street address, including the zip code, of its principal executive office;
- (4) The names and business addresses, including the zip code, of its board;
- (5) The names and business addresses, including the zip code, of its managers or equivalent;
- (6) The federal employer identification number (FEIN) of the cooperative, or if such number has not been obtained, a representation that it has been applied for; and
- (7) The number of members of the cooperative at the date of filing.
- (b) Information in the annual report shall be current as of the date the annual report is executed on behalf of the cooperative.
- (c) Every cooperative shall file the annual report with the secretary of state on or before the first day of the fourth month following the end of the close of the cooperative's fiscal year.
History (1)
- Acts 2004, ch. 534, § 23.
§ 43-38-121. Indemnification. - Subject to such standards and restrictions, if any, as are set forth in its articles or bylaws, a cooperative may, and shall have the power to, indemnify and hold harmless any member or officer or other person from and against any and all claims and demands whatsoever.
History (1)
- Acts 2004, ch. 534, § 30.
§ 43-38-122. Merger and consolidation. - (a) Unless otherwise prohibited, cooperatives organized under the laws of this state may merge or consolidate with each other or other business entities organized under the laws of this state or another state by complying with this section or the law of the state where the surviving or new business entity will exist.
- (b) To initiate a merger or consolidation of a cooperative, a written plan of merger or consolidation shall be prepared by the board or by a committee selected by the board to prepare a plan. The plan shall state:
- (1) The names of the constituent cooperatives and other business entities;
- (2) The name of the surviving or new cooperative or other business entity;
- (3) The manner and basis of converting membership or ownership interests of the constituent cooperatives or business entities into membership or ownership interests in the surviving or new cooperative or business entity;
- (4) The terms of the merger or consolidation;
- (5) The proposed effect of the consolidation or merger on the members and patron members of the cooperative;
- (6) For a consolidation, the plan shall contain the articles of the entity or organizational documents to be filed with the state in which the entity is organized; and
- (7) Any other provisions required by the laws under which any party to the merger is organized.
- (c) The following shall apply to notice:
- (1) The board shall mail a merger or consolidation or otherwise transmit or deliver notice to each member. The notice shall contain:
- (A) The full text of the plan; and
- (B) The time and place of the meeting at which the plan will be considered; and
- (2) A cooperative with more than two hundred (200) members may provide the merger or consolidation notice in the same manner as a regular members' meeting notice.
- (d) The following shall apply to the adoption of a plan of merger or consolidation:
- (1) A plan of merger or consolidation is adopted if:
- (A) The directors recommend the plan of merger or consolidation be approved by the members, unless the directors determine that, because of conflict of interest or due to the special circumstances, it should make no recommendation, in which case the directors shall submit the plan of merger or consolidation to the members of the cooperative for approval without recommendation and, in connection with the submission, shall communicate the basis for its determination that the plan be submitted for approval without any recommendation;
- (B) A quorum of the members is registered as being present or represented by mail vote at the meeting; and
- (C) The plan is approved by two-thirds (⅔) of the votes cast, or for a cooperative with articles or bylaws requiring more than two-thirds (⅔) of the votes cast or other conditions for approval, the plan is approved by a proportion of the votes cast or a number of total members as required by the articles or bylaws and the conditions for approval in the articles or bylaws have been satisfied;
- (2) After the plan has been adopted, articles of merger or consolidation stating the plan and that the plan was adopted according to this chapter shall be signed by the chair, vice-chair, records officer or documents officer of each cooperative merging or consolidating;
- (3) The articles of merger or consolidation shall be filed in the office of the secretary of state and must set forth:
- (A) The name, jurisdiction and date of formation or organization of each of the cooperatives or other entities that are a party to the merger;
- (B) That a plan of merger has been approved and executed by each of the cooperatives and other business entities that are a party to the merger;
- (C) The name and address of the principal executive office or equivalent thereof, of the surviving or resulting entity into which the other entities will merge;
- (D) The future effective date or time, which shall be a date or time certain and which shall comply with § 43-38-1109(b) of the merger, if it is not to be effective upon the filing of the plan of merger;
- (E) That the plan of merger is on file at a place of business of the surviving or resulting entity, and shall state the address thereof;
- (F) That a copy of the plan of merger will be furnished by the surviving or resulting entity, on request and without cost, to any member of any domestic cooperative or any persons holding an interest in any other entity that is or was a party to the merger; and
- (G) If the surviving or resulting entity is not a domestic cooperative, a statement that such surviving or resulting entity agrees that it may be served with process in this state in any action, suit or proceeding for the enforcement of any obligation of any entity that is a party to the merger, irrevocably appointing the secretary of state as its agent to accept service of process in any such action, suit or proceeding and specifying the address to which a copy of the process shall be mailed to it by the secretary of state. In the event of service hereunder upon the secretary of state, the procedures set forth in § 43-38-111 shall be applicable, except that the plaintiff in any such action, suit or proceeding shall furnish the secretary of state with the address specified in the certificate of merger provided for in this section and any other address that the plaintiff may elect to furnish, together with copies of such process as required by the secretary of state, and the secretary of state shall notify such surviving or resulting other business entity at all addresses furnished by the plaintiff in accordance with the procedures set forth in § 43-38-111;
- (4) For a merger, the articles of the surviving cooperative subject to this chapter are deemed amended to the extent provided in the articles of merger; and
- (5) Unless a later date is provided in the plan, the merger or consolidation is effective when the articles of merger or consolidation are filed in the office of the secretary of state.
- (e) The following shall apply to the effect of a merger:
- (1) After the effective date, the cooperatives or other business entities that are parties to the plan become a single entity. For a merger, the surviving business entity is the business entity designated in the plan. For a consolidation, the new cooperative or other business entity is the business entity provided for in the plan. Except for the surviving or new business entity, the separate existence of all business entities that are parties to the plan cease on the effective date of the merger or consolidation. The articles of merger as filed with the office of the secretary of state shall act as notice of dissolution and articles of termination for a domestic cooperative that is not the surviving or resulting entity in the merger;
- (2) The surviving or new business entity possesses all of the rights and property of each of the merged or consolidated business entities and is responsible for and assumes all their obligations and duties. The title to property of the merged or consolidated business entity is vested in the surviving or new business entity without reversion or impairment of title caused by the merger or consolidation. All liens upon any property of any of the merged business entities shall be preserved unimpaired and may be enforced against the surviving or resulting entity to the same extent as if the debts, liabilities and duties had been incurred or contracted by the surviving or resulting party; and
- (3) The right of a creditor may not be impaired by the merger or consolidation without the creditor's consent.
- (f) The fee to be paid to the secretary of state for filing articles of merger or consolidation shall conform with § 43-38-1103.
History (1)
- Acts 2004, ch. 534, § 31.
§ 43-38-123. Management of property and assets. - (a) A cooperative may, by affirmative vote of a majority of the board present, upon those terms and conditions and for those considerations, which may be money, securities, or other instruments for the payment of money or other property, as the board of directors considers expedient, and without member approval:
- (1)
- (A) Sell, lease, transfer, or otherwise dispose of all or substantially all of its property and assets in the usual and regular course of its business;
- (B) Grant a security interest in all or substantially all of its property and assets whether or not in the usual and regular course of its business; or
- (C) Transfer any or all of its property to a business entity all the ownership interests of which are owned by the cooperative.
- (2) Unless the articles require it, approval by the members of a transaction described in subdivision (a)(1) is not required.
- (b) A cooperative, by affirmative vote of a majority of the board of directors present, may sell, lease, transfer, or otherwise dispose of all or substantially all of its property and assets, including its good will, not in the usual and regular course of its business, upon those terms and conditions and for those considerations, which may be money, securities, or other instruments for the payment of money or other property, as the board of directors considers expedient, when approved at a regular or special meeting of the members by the affirmative vote of the owners of a majority of the voting power of the interests entitled to vote. Written notice of the meeting must be given to all members whether or not they are entitled to vote at the meeting. The written notice must state that a purpose of the meeting is to consider the sale, lease, transfer, or other disposition of all or substantially all of the property and assets of the cooperative.
- (c) Confirmatory deeds, assignments, or similar instruments to evidence a sale, lease, transfer, or other disposition may be signed and delivered at any time in the name of the transferor by its current chair of the board of directors or authorized agents.
- (d) The transferee is liable for the debts, obligations, and liabilities of the transferor only to the extent provided in the contract or agreement between the transferee and the transferor or to the extent provided by the statutes of this state.
History (1)
- Acts 2004, ch. 534, § 31.
§ 43-38-124. Promulgation of rules and regulations — Destruction of records. - The secretary of state has the authority and is empowered to perform the duties required of the secretary of state by this chapter including, without limitation, the authority to promulgate necessary and appropriate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and the power to destroy any records in the secretary of state's office concerning a cooperative ten (10) years after such cooperative has dissolved, withdrawn from the state or has had its certificate of authority revoked.
History (1)
- Acts 2004, ch. 534, § 33.
§ 43-38-125. Deputies of the secretary of state. - An act of a duly authorized deputy of the secretary of state in the secretary of state's behalf under this chapter is the equivalent of the act of the secretary of state; provided, however, that the deputy signs the name of the secretary of state by the deputy as deputy.
History (1)
- Acts 2004, ch. 534, § 33.
Part 2 Organization of Cooperative § 43-38-201. Organizational purpose. - A cooperative may be formed and organized on a cooperative plan as provided under this title, to market, process, or otherwise change the form or marketability of crops, livestock and other agricultural products, including manufacturing and further processing of those products and other purposes that are necessary or convenient to facilitate the production or marketing of agricultural products by patron members and other purposes that are related to the business of the cooperative; to provide supplies and services to its members; and for purposes that cooperatives are authorized by law.
§ 43-38-202. Organizers — Date of formation. - (a) A cooperative may be organized by one (1) or more individuals who are adult natural persons, who may act for themselves as individuals or as the agents of other entities, by filing with the secretary of state articles for the cooperative that contain the information required by § 43-38-203. The organizers forming the cooperative need not be members of the cooperative. Unless a delayed effective date is specified in the articles, the cooperative is formed and its existence begins when the articles are filed with the secretary of state.
- (b) If the date of formation is the date of filing of the articles, the secretary of state's acceptance for filing of the articles is conclusive proof that the organizers satisfied all conditions precedent to formation, except in a proceeding by the state to cancel or revoke the formation or existence of the cooperative or to dissolve the cooperative involuntarily.
- (c) If the date of formation of the cooperative is later than the date of filing of the initial articles with the secretary of state, the organizers or any member may, within thirty (30) days after the date of actual formation, file a certificate of formation that states that the cooperative was formed and the date of formation. If a certificate of formation is not filed within one hundred twenty (120) days from the date of initial filing of the articles, the presumed effective date of the formation shall be on the ninetieth day following the date of filing of the articles. The presumption, however, can be rebutted.
- (d) If the date of formation of the cooperative is later than the date of filing of the initial articles with the secretary of state, the secretary of state's acceptance for filing of the certificate of formation is conclusive proof that the organizers satisfied all conditions precedent to formation, except in a proceeding by the state to cancel or revoke the formation or existence of the cooperative or to dissolve the cooperative involuntarily.
§ 43-38-203. Articles of organization — Preparing and filing — Approval — Hearing on rejection of articles. - (a) The organizers shall prepare the articles, which shall include:
- (1) The name of the cooperative that satisfies the requirements of § 43-38-105;
- (2) The purpose of the cooperative;
- (3) The name and address of each organizer;
- (4) The street address and zip code of the principal place of business for the cooperative and the county in which the office is located;
- (5) The period of duration for the cooperative, if the duration is not to be perpetual;
- (6) The capital structure of the cooperative, including a statement of the classes and relative rights, preferences, and restrictions granted to or imposed upon each class of member interests, the rights to share in profits or distributions of the cooperative, and the authority to issue member interests, which may be designated to be determined by the board;
- (7) A provision designating the voting and governance rights, including which membership interests have voting power and any limitations or restrictions on the voting power, which shall be in accordance with this chapter;
- (8) A statement that patron membership interests with voting power shall be restricted to one (1) vote for each member, regardless of the amount of patron membership interests held in the affairs of the cooperative, or a statement describing the allocation of voting power allocated as prescribed in this chapter;
- (9) A statement that membership interests held by a member are transferable only with the approval of the board or as provided in the bylaws;
- (10) The names, post office addresses, and terms of office of the directors of the first board;
- (11) A statement as to how profits and losses will be allocated and cash will be distributed between patron membership interests collectively and nonpatron membership interests collectively, a statement that net income allocated to patron membership interests as determined by the board in excess of dividends and additions to reserves shall be distributed on the basis of patronage, and that the records of the cooperative shall include the interests of patron membership interests and nonpatron membership interests that may be further described in the bylaws, of any classes, and in the reserves; and
- (12) The street address and the zip code of the initial registered office of the cooperative, the county in which the office is located, and the name of its initial registered agent in that office.
- (b) The articles shall contain the provisions in subsection (a), except that the names, post office addresses of the directors of the first board may be omitted after their successors have been elected by the members or the articles are amended or restated in their entirety.
- (c) The articles may contain any other lawful provision.
- (d) The articles shall be signed by the organizers.
- (e) The original articles shall be filed with the secretary of state. The fee for filing the articles with the secretary of state shall be subject to § 43-38-1103(a).
- (f) When the articles of organization have been filed with the secretary of state and the required fee has been paid to the secretary of state, it shall be presumed that all conditions precedent that are required to be performed by the organizers have been met.
- (g) Articles of organization for a cooperative shall not be accepted for filing by the secretary of state unless the articles of organization have been approved in writing by the commissioner. Approval by the commissioner shall be based on a determination by the commissioner that the cooperative will provide new or improved markets for agriculture products in Tennessee or that the cooperative will provide opportunities for patron members of the cooperative to participate in the processing of agricultural products in Tennessee.
- (h) The commissioner shall either approve or reject the proposed articles of organization within thirty (30) days after all information required by the commissioner has been submitted.
- (i) If a submission of the articles of organization is rejected by the commissioner, the person or persons submitting the articles of organization may request a hearing to be conducted as a contested case hearing in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. There shall be no right to a hearing pursuant to this subsection (i) unless a written request for a hearing is received by the commissioner within thirty (30) days of the commissioner's rejection of the proposed articles of organization.
§ 43-38-204. Existence — Duration. - (a) The existence of a cooperative shall begin when the articles are filed with the secretary of state.
- (b) A cooperative shall have a perpetual duration unless the cooperative provides for a limited period of duration in the articles of organization.
Part 3 Bylaws § 43-38-301. Bylaws — Provisions —Amendments. - (a) A cooperative shall have bylaws in writing governing the cooperative's business affairs, structure, the qualifications, classification, rights and obligations of members, and the classifications, allocations and distributions of membership interests.
- (b) The bylaws of a cooperative may be adopted or amended by the board of directors as provided in subsection (c), or at a regular or special members' meeting if:
- (1) The notice of the regular or special meeting contains a statement that the bylaws or restated bylaws will be voted upon and copies are included with the notice, or copies are available upon request from the cooperative and summary statement of the proposed bylaws or amendment is included with the notice;
- (2) A quorum is registered as being present or represented by mail or alternative voting method if the mail or alternative voting method is authorized by the board; and
- (3) The bylaws or amendment is approved by a majority vote cast, or, for a cooperative with articles or bylaws requiring more than majority approval or other conditions for approval, the bylaws or amendment is approved by a proportion of the vote cast or a number of the total members as required by the articles or bylaws and the conditions for approval in the articles or bylaws have been satisfied.
- (c) Until the next annual or special members' meeting, the majority of directors may adopt and amend bylaws for the cooperative that are consistent with subsection (d). Bylaws may be further amended or repealed by the members at an annual or special members' meeting.
- (d) Bylaws may contain any provision relating to the management or regulation of the affairs of the cooperative that are not inconsistent with law or the articles, and shall include the following:
- (1) The number of directors, and the qualifications, manner of election, powers, duties, and compensation, if any, of directors;
- (2) The qualifications of members and any limitations on their number;
- (3) The manner of admission, withdrawal, suspensions, and expulsion of members; and
- (4) Generally, the governance rights, financial rights, assignability of governance and financial rights, and other rights, privileges and obligations of members and their membership interests, which may be further described in member control agreements.
§ 43-38-302. Approval of and agreement to bylaws — Vote to amend — Enforcement. - (a) Except as otherwise provided in the articles, the bylaws must initially be agreed to by all members or the organizer or organizers. Any person becoming a member after the bylaws have been adopted by the organizers or the members will be deemed to have agreed to the bylaws.
- (b) Unless otherwise provided in the articles or the bylaws, the amendment of the bylaws shall require the vote of members necessary to amend the articles.
- (c)
- (1) A court of equity may enforce the bylaws by injunction or by such other equitable relief as the court in its discretion determines to be fair and appropriate in the circumstances.
- (2) As an alternative to injunctive or other equitable relief, when § 43-38-1015 is applicable, a court of equity may conduct or continue the dissolution and winding up of the cooperative.
- (3) Notwithstanding any provision of law to the contrary, any agreement to give dissolution avoidance consent, whether or not contained in the articles, the bylaws or other agreement entered into before the event of dissolution, is not specifically enforceable.
§ 43-38-303. Emergency bylaws. - (a) Unless the article provides otherwise, the board of directors or the organizers of a cooperative may adopt bylaws to be effective only in an emergency. The emergency bylaws, which are subject to amendment or repeal by the members, may make all provisions necessary for managing the cooperative during the emergency, including:
- (1) Procedures for calling a meeting of the board of directors;
- (2) Quorum requirements for the meeting; and
- (3) Designation of additional or substitute directors.
- (b) All provisions of the regular bylaws consistent with the emergency bylaws remain effective during the emergency. The emergency bylaws are not effective after the emergency ends.
- (c) Action taken in good faith in accordance with the emergency bylaws:
- (1) Binds the cooperative; and
- (2) May not be used to impose liability on a director, officer, employee or agent of the cooperative.
Part 4 Articles of Cooperative § 43-38-401. Amendment of articles — No vested property rights conferred. - (a) A cooperative may amend its articles at any time to add or change a provision that is required or permitted in the articles or to delete a provision not required in the articles. Whether a provision is required or permitted in the articles is determined as of the effective date of the amendment.
- (b) A member of a cooperative does not have a vested property right resulting from any provision in the articles or bylaws, including provisions relating to management control, capital structure, distribution, entitlement or purpose or duration of the cooperative.
§ 43-38-402. Procedure for amending articles. - (a) The articles of a cooperative shall be amended as follows:
- (1) The board by majority vote shall pass a resolution stating the text of the proposed amendment. The text of the proposed amendment and an attached mail ballot, if the board has provided for a mail ballot in the resolution or alternative method approved by the board and stated in the resolution, shall be mailed or distributed with a regular or special meeting notice to each member. The notice shall designate the time and place of the meeting for the proposed amendment to be considered and voted on; and
- (2) If a quorum of the members is registered as being present or represented by alternative vote at the meeting, the proposed amendment is adopted:
- (A) If approved by a majority of the votes cast; or
- (B) For a cooperative with articles or bylaws requiring more than majority approval or other conditions for approval, the amendment is approved by a proportion of the votes cast or a number of total members as required by the articles or bylaws and the conditions for approval in the articles or bylaws have been satisfied.
- (b) After an amendment has been adopted by the members, the amendment shall be signed by the chair, vice-chair, records officer, or assistant records officer and a copy of the amendment filed in the office of the secretary of state.
- (c) A certificate shall be prepared stating:
- (1) The vote and meeting of the board adopting a resolution of the proposed amendment;
- (2) The notice given to members of the meeting at which the amendment was adopted;
- (3) The quorum registered at the meeting; and
- (4) The vote cast adopting the amendment.
- (d) The certificate shall be signed by the chair, vice-chair, records officer or financial officer and filed with the records of the cooperative.
- (e) A majority of directors may amend the articles if the cooperative does not have any members with voting rights.
§ 43-38-403. Filing of amendments. - A cooperative amending its articles of organization shall deliver to the secretary of state for filing articles of amendment setting forth:
- (1) The name of the cooperative;
- (2) The text of each amendment adopted;
- (3) The date of each amendment's adoption;
- (4) If an amendment was duly adopted by the board of directors without member action, a statement to that effect and that member action was not required; and
- (5) If an amendment was duly adopted by the members, a statement to that effect.
§ 43-38-404. Restatement of articles. - (a) A cooperative's board of directors may restate its articles at any time with or without member action.
- (b) The restatement may include one (1) or more amendments to the articles. If the restatement includes an amendment requiring member approval, it shall be adopted as provided in § 43-38-402.
- (c) If the board of directors submits a restatement for member action, the cooperative shall notify each member, whether or not entitled to vote, of the proposed members' meeting in accordance with § 43-38-512. The notice shall also state that the purpose, or one (1) of the purposes, of the meeting is to consider the proposed restatement and contain or be accompanied by a copy of the restatement that identifies any amendment or other change it would make in the articles.
- (d) A cooperative restating its articles shall deliver to the secretary of state the restated articles, setting forth the name of the cooperative and the text of the restated articles, together with a certificate setting forth:
- (1) Whether the restatement contains an amendment to the articles requiring member approval and, if it does not, that the board of directors adopted the restatement; or
- (2) If the restatement contains an amendment to the articles requiring member approval, the information required by § 43-38-403.
- (e) If the restatement contains an amendment to the articles, it shall be designated in the heading “Amended and Restated Articles”.
- (f) The restated articles must contain all the requirements of articles as set forth in § 43-38-203.
- (g) Duly adopted and restated articles supersede the original articles and all prior amendments to the articles.
- (h) The secretary of state may certify restated articles as the articles currently in effect without including the certificate information required by subsection (d).
§ 43-38-405. Court ordered plan of reorganization. - (a) A cooperative's articles may be amended without action by the board of directors or members to carry out a plan of reorganization ordered or decreed by a court of competent jurisdiction under federal statute, if the articles after amendment contain only provisions required or permitted by § 43-38-203.
- (b) The individual or individuals designated by the court shall deliver to the secretary of state for filing articles of amendment setting forth:
- (1) The name of the cooperative;
- (2) The text of each amendment approved by the court;
- (3) The date of the court's order or decree approving the articles of amendment;
- (4) The title of the reorganization proceeding in which the order or decree was entered; and
- (5) A statement that the court had jurisdiction of the proceeding under federal statute.
- (c) Members of a cooperative undergoing reorganization do not have dissenters' rights, except as and to the extent provided in the reorganization plan.
- (d) This section does not apply after entry of a final decree in the reorganization proceedings, even though the court retains jurisdiction of the proceeding for limited purposes unrelated to consummation of the reorganization plan.
§ 43-38-406. Effect of amendment on cause of action. - An amendment to the articles does not affect a cause of action existing against or in favor of the cooperative, a proceeding to which the cooperative is a party or the existing rights of persons other than members of the cooperative. An amendment changing a cooperative's name does not abate a proceeding brought by or against the cooperative in its former name.
Part 5 Membership § 43-38-501. Amount and division of membership of interests — Selling and transferring interests — Purchasing interests — Dissent. - (a) The authorized amount and divisions of patron membership interests and nonpatron membership interests may be increased or decreased or established or altered, in accordance with the restrictions in this chapter by amending the articles at a regular members' meeting or at a special members' meeting called for the purpose of the amendment.
- (b) Authorized membership interests may be issued pursuant to contribution agreements containing the terms and conditions prescribed in the articles or bylaws, or if authorized in the articles or bylaws as determined by the board. The cooperative shall disclose to any person or entity acquiring membership interests to be issued by the cooperative, the organization, capital structure and known business prospects and risks of the cooperative, the nature of the governance and financial rights of the membership interest being acquired and of other classes of membership and membership interests. The cooperative shall notify all members of the membership interests being offered by the cooperative. A membership interest may not be issued until the subscription price of the membership interest has been paid for in cash or a cash equivalent or property with the value of the property to be contributed approved by the board.
- (c) The patron membership interests collectively shall have not less than fifteen percent (15%) of the cooperative's financial rights to profit allocations and distributions.
- (d) After issuance by the cooperative, membership interests in a cooperative may only be sold or transferred in accordance with §§ 43-38-504 and 43-38-505, in each instance, with the approval of the board.
- (e) The cooperative may solicit and issue nonpatron membership interests on terms and conditions determined by the board and disclosed in the articles, bylaws or by separate disclosure to the members. Each member acquiring nonpatron membership interests shall sign a member control agreement or agree to the conditions of the bylaws, either of which shall describe the rights and obligations of the member as it relates to the nonpatron membership interests, the financial and governance rights, the transferability of the nonpatron membership interests, the division and allocations of profits and losses among the membership interests and membership classes, and financial rights upon liquidation. If the bylaws do not otherwise provide for the allocation of the profits and losses between patron membership interests and nonpatron membership interests, then the allocation of profits and losses among nonpatron membership interests individually and patron membership interests collectively shall be allocated on the basis of the value of contributions to capital made according to the patron membership interests collectively and the nonpatron membership interests individually to the extent the contributions have been accepted by the cooperative. Distributions of cash or other assets of the cooperative shall be allocated among the membership interests as provided in the articles and bylaws, subject to this chapter. If not otherwise provided, distributions shall be made on the basis of value of the capital contributions of the patron membership interests collectively and the nonpatron membership interests to the extent the contributions have been accepted by the cooperative.
- (f) The bylaws may provide that the cooperative or the patron members, individually or collectively, have the first privilege of purchasing the membership interests of any class of membership interests offered for sale. The first privilege to purchase membership interests may be satisfied by notice to other members that the membership interests are for sale and a procedure by which members may proceed to attempt to purchase and acquire the membership interests. A membership interest acquired by the cooperative may be held to be reissued or may be retired and cancelled.
- (g) Subject to the provisions in the bylaws, a member may dissent from and obtain payment for the fair value of the member's nonpatron membership interests in the cooperative if the articles or bylaws are amended in a manner that materially and adversely affects the rights and preferences of the nonpatron membership interests of the dissenting member. The dissenting member shall file a notice of intent to demand fair value of the membership interest with the records officer of the cooperative within thirty (30) days after the amendment of the bylaws and notice of the amendment to members; otherwise, the right of the dissenting member to demand payment of fair value for the membership interest is deemed to be waived. If a proposed amendment of the articles or bylaws shall be approved by the members, a member who is entitled to dissent and who wishes to exercise dissenter's rights shall file a notice to demand fair value of the membership interest with the records officer of the cooperative before the vote on the proposed action and shall not vote in favor of the proposed action; otherwise, the right to demand fair value for the membership interest by the dissenting member is deemed waived. After receipt of the dissenting member's demand notice and approval of the amendment, the cooperative has sixty (60) days to rescind the amendment or otherwise the cooperative shall remit the fair value for the one (1) member's interest to the dissenting member by one hundred eighty (180) days after receipt of the notice. Upon receipt of the fair value for the membership interest, the member has no further member rights in the cooperative.
History (1)
- Acts 2004, ch. 534, § 14.
§ 43-38-502. Termination of membership. - (a) A member always has the power to terminate membership by withdrawing at any time. Unless otherwise provided in this chapter, the articles or the bylaws, any other withdrawal or termination shall be deemed wrongful.
- (b) Unless otherwise provided in the articles, a member may not be expelled.
- (c) If, for any reason, the continued membership of a member is terminated:
- (1) If the existence and business of the cooperative is continued, then the member whose membership has terminated loses all governance rights and will be considered merely an assignee of the financial rights, owned before the termination of membership; or
- (2) Unless the articles or bylaws provide otherwise, if the existence and business of the cooperative is not continued, the member whose continued membership has terminated, except through wrongful withdrawal or wrongful termination, retains all governance rights owned before the termination of the membership and may exercise those rights through the winding up and termination of the cooperative.
- (d) If a member withdraws in contravention of the articles or bylaws, then:
- (1) The member who has wrongfully withdrawn forfeits governance rights in the winding up and termination process or in the continued business; and
- (2) The member who has wrongfully withdrawn is liable to all the other members and to the cooperative to the extent damaged, including the loss of foregone profits, by the wrongful withdrawal. These damages may be offset against any amount to be paid to the wrongfully withdrawing or terminating by the cooperative.
- (e) If the business and existence of the cooperative are continued, any withdrawing or terminating member, whether the withdrawal or termination was wrongful or otherwise, is entitled to receive, subject to subsection (d), the lesser of the fair market value of the withdrawing or terminating member's interest determined on a going concern basis or the fair market value of the withdrawing member's interest determined on a liquidated basis.
- (f) Except as provided in subsection (d), if the business and existence of the cooperative are not continued, then any withdrawing or terminating member, whether the withdrawal or termination was wrongful or otherwise, is entitled to receive that member's distribution under § 43-38-1009.
- (g) Except as provided in the articles or bylaws, any amount to which a withdrawing or terminating member is entitled under subsection (e) or (f) shall be paid to the withdrawing or terminating member within six (6) months of the determination of the amount.
- (h) Notwithstanding other provisions in this section, the articles or bylaws may establish the amount to be paid a withdrawing or terminating member or a method for establishing the amount and may also establish the terms of payment of the amount. The established amount, or the method of determining the amount, and the established terms of payment shall control.
History (1)
- Acts 2004, ch. 534, § 15.
§ 43-38-503. Assignment of member's financial rights. - (a) Except as provided in subsection (c), a member's financial rights are transferable in whole or in part.
- (b) An assignment of a member's financial rights entitles the assignee to receive, to the extent assigned, only the share of profits and losses and the distributions to which the assignor would otherwise be entitled. An assignment of a member's financial rights does not dissolve the cooperative and does not entitle or empower the assignee to become a member, to cause a dissolution, to exercise any governance rights, or, except as specifically provided by this chapter, to receive any notices from the cooperative, or to cause dissolution. The assignment may not allow the assignee to control the member's exercise of governance rights, and any attempt to do so shall be void.
- (c)
- (1) A restriction on the assignment of financial rights may be imposed in the articles, in the bylaws, by a written resolution adopted by the members, or by a written agreement among, or other written action by, members, or among them and the cooperative.
- (2) A restriction on the assignment of financial rights referenced in subdivision (c)(1) that is not manifestly unreasonable under the circumstances is enforceable against the owner of the restricted financial rights. A written restriction on the assignment of financial rights that is not manifestly unreasonable under the circumstances and is noted in the articles or bylaws may be enforced against a successor or transferee of the owner of the restricted financial rights, including a pledge or a legal representative, whether or not the successor or transferee of the owner had actual notice of the restriction. Unless noted in the articles or bylaws, a restriction, even though permitted by this section, is ineffective against a person without knowledge of the restriction.
History (1)
- Acts 2004, ch. 534, § 17.
§ 43-38-504. Assignment of governance rights — Consequence of ineffective assignment. - (a) A member may assign the member's full membership interest only by assigning all of the member's governance rights coupled with an assignment to the same assignee of all the member's financial rights. A member's governance rights are assignable only as provided in this section. A member or holder of a financial right has no power to assign all or any part of the member's membership interest or financial rights, except as provided in § 43-38-503 and this section.
- (b)
- (1) Except as otherwise provided in the articles or the bylaws, a member may, without the consent of any other member, assign governance rights to another member.
- (2)
- (A) Except as provided in subdivisions (b)(2)(B) and (b)(2)(C), any other assignment of any governance rights is effective only if all the directors, other than the director who is also a member seeking to make the assignment, approve the assignment by unanimous consent or otherwise if the articles or bylaws so permit. The consent may be evidenced in any manner specified in the articles or bylaws, but in the absence of specification, consent shall be evidenced by a written instrument, dated and signed by the person. The giving of consent is at the discretion of the consenting party and may be unreasonably withheld.
- (B) If the articles or bylaws so provide, the directors who are members may approve, by a majority or greater in number of the nonassigning directors who are members, the assignment of governance rights to a nonmember. In the event there are no nonassigning governors who are members, the assignment must be approved by unanimous consent of the governors, or, if the articles or bylaws so permit, the assignment shall be approved by at least a majority vote of the members, exclusive of the member seeking to make the assignment.
- (C) If permitted in the articles or bylaws, the governance rights associated with membership interests or classes of membership interests may be assigned without the consent of the members or the directors who are members.
- (c) When an assignment of governance rights is effective under subsection (b):
- (1) The assignee becomes a member, if not already a member; and
- (2) An assignee who has become a member has, to the extent assigned, the rights and powers and is subject to the restrictions and liabilities, of a member under the articles, any bylaws and this chapter.
- (d) When an assignment is effective under subsection (a):
- (1) The assignee is liable for any obligations of the assignor existing at the time of transfer, except to the extent that, at the time the assignee became a member, the liability was unknown to the assignee, and could not be ascertained from the required records of the cooperative;
- (2) Notwithstanding subdivision (d)(1), the assignee shall not be liable for the obligations of the assignor under § 43-38-904; and
- (3) The assignor is not released from liability to the cooperative for obligations of the assignor existing at the time of transfer, except as provided in subdivision (d)(1).
- (e) Unless otherwise provided in the articles or bylaws, the pledge or granting of a security interest, lien or other encumbrance in or against any or all of the membership interest of a member is not an assignment and shall not cause the member to cease to be a member or to cease to have the power to exercise any rights or powers of a member.
- (f) If any purported or attempted assignment of governance rights is ineffective for failure to obtain the consent required in subsection (b):
- (1) The purported or attempted assignment is ineffective in its entirety; and
- (2) Any assignment of financial rights that accompanied the purported or attempted assignment of governance rights is void.
History (1)
- Acts 2004, ch. 534, § 17.
§ 43-38-505. Restrictions on assignment of governance rights. - In addition to restrictions set forth in this chapter, restrictions on the assignment of governance rights may be imposed in accordance with the procedures and under the same conditions as stated in § 43-38-503(c) for restricting the assignment of financial rights.
History (1)
- Acts 2004, ch. 534, § 17.
§ 43-38-506. When assignment of financial and governance rights effective. - Any permissible assignment of financial rights under § 43-38-503 and of governance rights under § 43-38-504 will be effective as to and binding upon the cooperative only when the assignee's name, address, social security or taxpayer identification number and the nature and extent of the assignment are reflected in the required records of the cooperative.
History (1)
- Acts 2004, ch. 534, § 17.
§ 43-38-507. Judgment creditors of members. - On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the member's financial rights with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the member's financial rights under § 43-38-503. This section does not deprive any member or assignee of financial rights of the benefit of any exemption laws applicable to the membership interest. This section is the sole and exclusive remedy of a judgment creditor with respect to the judgment debtor's membership interest.
History (1)
- Acts 2004, ch. 534, § 17.
§ 43-38-508. Death, incompetence, or bankruptcy of member — Member that is dissolved, terminated, or in receivership. - (a) If a member who is an individual dies, a court of competent jurisdiction adjudges the member to be incompetent to manage the member's person or property, or the court places the individual in bankruptcy, the member's executor, administrator, guardian, conservator, trustee, or other legal representative, except as otherwise provided in the articles or bylaws, may exercise all of the member's rights, except voting rights, for the purpose of settling the estate or administering the member's property. If a member is a cooperative, trust, or other entity and is dissolved, terminated, or placed by a court in receivership or bankruptcy, the powers of that member, except as otherwise provided in the articles or bylaws, may be exercised by its legal representative or successor, except the interest shall be a non-voting interest.
- (b) If an event referred to in subsection (a) causes the termination of a member's interest, then:
- (1) As provided in § 43-38-502(c), the terminated member's interest will be considered to be merely that of an assignee of the financial rights owned before the termination of membership; and
- (2) The rights to be exercised by the legal representative of the successor will be limited accordingly.
History (1)
- Acts 2004, ch. 534, § 18.
§ 43-38-509. Contribution agreements or contribution allowance agreements — Preemptive rights. - (a) Unless otherwise specifically provided in the articles or bylaws, members or parties, other than the cooperative, to a contribution agreement or a contribution allowance agreement shall not have preemptive rights. If the articles or bylaws provide for the possibility of preemptive rights, these rights shall be granted on the terms and conditions prescribed in the articles or bylaws to provide a fair and reasonable opportunity to exercise the rights to acquire additional proportional interests.
- (b) A preemptive right is the right of a member to make contributions of a certain amount or to make a contribution allowance agreement specifying future contributions of a certain amount before the cooperative may accept new contributions from other persons or to make contribution allowance agreements with other persons.
- (c) No preemptive rights arise as to contributions to be accepted from others or as to contribution allowance agreements to be made with others when the contribution is to be made:
- (1) In a form other than money;
- (2) Reflected pursuant to a plan of merger or exchange;
- (3) Reflected pursuant to an employee or incentive benefit plan approved at a meeting by the affirmative vote of the owners of a majority of the voting power of all membership interests entitled to vote;
- (4) Pursuant to a previously made contribution allowance agreement; or
- (5) Reflected pursuant to a plan of reorganization approved by a court of competent jurisdiction pursuant to a statute of this state or of the United States.
History (1)
- Acts 2004, ch. 534, § 19.
§ 43-38-510. Annual members' meetings. - (a) Regular members' meetings shall be held annually at a time determined by the board, unless otherwise provided for in the bylaws.
- (b) The regular members' meeting shall be held at the principal place of business of the cooperative or at another conveniently located place as determined by the bylaws or the board.
- (c) The officers shall submit reports to the members at the regular members' meeting covering the business of the cooperative for the previous fiscal year that show the condition of the cooperative at the close of the fiscal year.
- (d) All directors shall be elected at the regular members' meeting for the terms of office prescribed in the bylaws, except for directors elected at district or unit meetings.
- (e) The cooperative shall give notice of regular members' meetings by mailing the regular members' meeting notice to each member at the member's last known post office address or by other notification approved by the board and agreed to by the members. The notice must contain the date, time, and place of the meeting, and any other information required by this section. The regular members' meeting notice shall be published or otherwise given by approved method at least two (2) weeks before the date of the meeting or mailed at least fifteen (15) days before the date of the meeting.
History (1)
- Acts 2004, ch. 534, § 20.
§ 43-38-511. Special members' meetings. - (a) Special members' meetings of the members may be called by:
- (1) A majority vote of the board; or
- (2) The written petition of at least twenty percent (20%) of the patron members, twenty percent (20%) of the nonpatron members or twenty percent (20%) of all members collectively, submitted to the chair.
- (b) The cooperative shall give notice of a special members' meeting by mailing the special members' meeting notice to each member personally at the person's last known post office address or an alternative method approved by the board and the member individually or the members generally. For a member that is an entity, notice mailed or delivered by an alternative method shall be to an officer of the entity. The special members' meeting notice shall state the time, place, and purpose of the special members' meeting. The special members' meeting notice shall be issued within ten (10) days from and after the date of the presentation of a members' petition, and the special members' meeting shall be held within thirty (30) days after the date of the presentation of the members' petition.
History (1)
- Acts 2004, ch. 534, § 20.
§ 43-38-512. Notice of meetings. - (a)
- (1) Except as otherwise provided in this chapter or in the articles, written notice to all meetings of members must be given to every member entitled to vote on the matters to be considered, unless:
- (A) The meeting is an adjourned meeting and the date, time, and place of the meeting were announced at the time of adjournment; or
- (B) The following have been mailed by first class, certified or registered mail to a member at the address in the cooperative records and returned undeliverable:
- (i) Two (2) consecutive meeting notices; and
- (ii) All payments of distributions for the greater of a twelve-month period or two (2) distributions.
- (2) An action or meeting that is taken or held without notice under subdivision (a)(1)(B) has the same force and effect as if notice was given. If the member delivers a written notice of the member's current address to the cooperative, the notice requirement is reinstated.
- (3) Unless otherwise provided in the articles or bylaws, the record date for the determination of the owners of membership interests entitled to notice of and to vote at any meeting of members is the close of business and the date before the first notice is sent to the members.
- (b) The notice must contain the date, time and place of the meeting, and any other information required by this chapter. In the case of a meeting, other than the required annual meeting of the board of directors, the notice must contain a statement of the purposes of the meeting. The notice may also contain any other information required by the articles or bylaws or considered necessary or desirable by the person or persons calling the meeting.
- (c) A certificate of the secretary or other person giving notice that the notice required by this section has been given, in the absence of fraud, shall be prima facie evidence of the facts stated therein.
- (d) Notwithstanding provisions in the articles or bylaws to the contrary, all members and parties to contribution agreements or contribution allowance agreements, or both, shall be entitled to receive notices of the annual meetings of the members of a board-managed cooperative and notices of all meetings of a cooperative called for the purpose of considering any of the following actions:
- (1) Dissolution;
- (2) Liquidation;
- (3) Sale of all or substantially all of the assets of the cooperative outside the ordinary course of business; or
- (4) Merger.
- (e) The failure of the cooperative to properly notify the parties not entitled to vote on a matter shall not invalidate or void any action described in this section taken at the meeting.
History (1)
- Acts 2004, ch. 534, § 20.
§ 43-38-513. Certificate and statement of notice. - (a) After mailing special or regular members' meeting notices or otherwise delivering the notices, the cooperative shall execute a certificate containing the date of mailing or delivery of the notice and a statement that the special or regular members' meeting notices were mailed or delivered as prescribed by law.
- (b) The certificate shall be made a part of the record of the meeting.
History (1)
- Acts 2004, ch. 534, § 20.
§ 43-38-514. Failure to receive notice. - Failure of a member to receive a special or regular members' meeting notice does not invalidate an action that is taken by the members at a members' meeting.
History (1)
- Acts 2004, ch. 534, § 20.
§ 43-38-515. Waiver of notice. - (a) A member may waive any notice required by this section. Except as otherwise provided in this section, a waiver of notice by a member entitled to notice is effective, whether given before or after the meeting or other balloting, if notice is given in writing, signed by the member entitled to the notice, and filed with the minutes or corporate records.
- (b) A member's attendance at or participation in a meeting waives any required notice to the member of the meeting, unless the member, at the beginning of the meeting or promptly upon the member's arrival, objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. The secretary is required to note the objection in the minutes of the meeting.
History (1)
- Acts 2004, ch. 534, § 20.
§ 43-38-516. Action without a meeting on written consent. - (a) Unless the articles provide otherwise, any action required or permitted to be taken at a meeting of the members may be taken without a meeting by action on written consent as provided in § 43-38-517 or on recommendation of the board of directors as provided in § 43-38-518. Any action taken pursuant to § 43-38-517 or § 43-38-518 has the effect of a meeting and vote and may be described as such in any document. Any requirement in this chapter for action at a meeting will be satisfied by an action taken in accordance with § 43-38-517 or § 43-38-518.
- (b) If this chapter, the articles or bylaws require that notice of proposed action be given to members and the action is to be taken by members pursuant to § 43-38-517 or § 43-38-518, then the cooperative must give its members who would not be entitled to vote on the matter a written notice of the proposed action at least ten (10) days before action is taken on written consent or at the same time notice is given to the members entitled to vote under § 43-38-518. The notice must contain or be accompanied by the same material that would have been required to be sent to members in a notice of meeting at which the proposed action would have been submitted to the members for action.
History (1)
- Acts 2004, ch. 534, § 21.
§ 43-38-517. Procedure for taking action without a meeting on written consent. - (a) To take action on written consent:
- (1) A written waiver of acting at a meeting must be signed by all members, or a smaller number or percentage interest as provided for in the articles or bylaws, but not less than a majority in voting power; and
- (2) A written consent must be signed by members who own membership interests with voting power equal to the voting power that would be required to take the same action at a meeting of the members at which all members are present.
- (b) The action must be evidenced by one (1) or more instruments evidencing the waiver and consent, which shall be delivered to the secretary for inclusion in the records of the cooperative. All such instruments may be signed in counterparts.
- (c) If not otherwise determined under § 43-38-526, the record date for determining members entitled to take action without a meeting is the date the first member signs the consent under subsection (a).
- (d) Unless otherwise provided in the articles or the bylaws, the action on written consent is effective when the last required member signs the waiver and written consent, unless a different effective time is provided in the instrument evidencing the written consent itself.
History (1)
- Acts 2004, ch. 534, § 21.
§ 43-38-518. Proposal to take action without a meeting — Notice — Procedure for calling a meeting. - (a) Except with respect to dissolution, liquidation or merger, the board of directors may, acting on the board's initiative, make a proposal to the members to take an action without a meeting. All members entitled to vote shall be given written notice of the proposal. The notice shall require a written response within a specified time, but not less than thirty (30) days from the effective date of the notice and shall contain the recommendation of the board of directors. The failure of a member to respond within the time specified in the notice shall constitute a vote in favor of the recommendation of the board of directors, as the case may be. The notice shall contain a statement concerning the voting effect of the failure of a member to timely respond to the proposal. Except as provided in subsection (b), if the voting power of the members responding in favor of the recommendation as to the proposal, combined with the voting power of the members failing to respond, is equal to the voting power that would be required to take the same action at a meeting of the members at which all members are present, then the proposal shall become the action of the members of the cooperative effective as of the expiration of the notice period.
- (b) Notwithstanding subsection (a), if members with twenty percent (20%) of the aggregate voting power of the cooperative or the class, series, or group of the members entitled to vote on the specific matter notify the secretary in writing within fifteen (15) days of the giving of the notice that a meeting should be called to consider one (1) or more of the matters on which the board of directors has made recommendation, the vote may not be taken as provided in this section, but a meeting of the members shall be called to consider and to take action on the matter.
History (1)
- Acts 2004, ch. 534, § 21.
§ 43-38-519. Quorum requirements. - (a) The quorum for a members' meeting to transact business shall be:
- (1) Ten percent (10%) of the total number of members for a cooperative with five hundred (500) or fewer members; or
- (2) Fifty (50) members for cooperatives with more than five hundred (500) members.
- (b) In determining a quorum at a meeting, on a question submitted to a vote by mail or an alternative method, members present in person or represented by mail vote or the alternative voting method shall be counted. The attendance of a sufficient number of members to constitute a quorum shall be established by a registration of the members of the cooperative present at the meeting. The registration shall be verified by the chair or the records officer of the cooperative and shall be reported in the minutes of the meeting.
- (c) An action by a cooperative is not valid or legal in the absence of a quorum at the meeting at which the action was taken.
History (1)
- Acts 2004, ch. 534, § 22.
§ 43-38-520. Action of members after vote — Class or series of memberships. - (a) The members shall take action by the affirmative vote of the owners of the greater of:
- (1) A majority of the voting power of the membership interests present and entitled to vote on that item of business in a meeting in which a quorum is present; or
- (2) A majority of the voting power that would constitute a quorum for the transaction of business at the meeting, except where this chapter, the articles of organization, or a member control agreement, requires a larger proportion. If the articles, bylaws, or a member control agreement requires a larger proportion than is required by this chapter for a particular action, the articles, bylaws, or the member control agreement controls.
- (b) In any case where a class or series of membership interests is entitled to vote as a class or series by this chapter, the articles of organization, bylaws, a member control agreement, or the terms of the membership interests, the matter being voted upon must also receive the affirmative vote of the owners of the same proportion of the membership interests present of that class or series; or of the total outstanding membership interests of that class or series, as the proportion required pursuant to subsection (a), unless the articles, bylaws, or the member control agreement require a larger proportion. Unless otherwise stated in the articles, bylaws, or a member control agreement, in the case of voting as a class or series, the minimum percentage of the total voting power of membership interests of the class or series that must be present is equal to the minimum percentage of all membership interests entitled to vote required to be present under § 43-38-516.
History (1)
- Acts 2004, ch. 534, § 22.
§ 43-38-522. Number of votes allowed — Time for voting — Method of voting — Members represented by delegates — Absentee ballots. - (a) A patron member of a cooperative is only entitled to one (1) vote on an issue to be voted upon by members holding patron membership interests, except that a patron member of a cooperative described in § 43-38-523 may be entitled to more than one (1) vote as provided in that section. On any matter of the cooperative, the entire patron members voting power shall be voted collectively based upon the vote of the majority of patron members' voting on the issue. A nonpatron member has the voting rights in accordance to the nonpatron membership interests as granted in the bylaws, subject to this chapter.
- (b) A member or delegate may exercise voting rights on any matter that is before the members as prescribed in the articles or bylaws at a members' meeting from the time the member or delegate arrives at the members' meeting, unless the articles or bylaws specify an earlier and specific time for closing the right to vote.
- (c) A member's vote at a members' meeting shall be in person or by mail if a mail vote is authorized by the board or by alternative method if authorized by the board, and not by proxy, except as provided in subsection (d).
- (d) The following shall apply to members represented by delegates:
- (1) A cooperative may provide in the articles or bylaws that units or districts of members are entitled to be represented at members' meetings by delegates chosen by the members of the unit or district. The delegates may vote on matters at the members' meeting in the same manner as a member. The delegates may only exercise the voting rights on a basis and with the number of votes as prescribed in the articles or bylaws;
- (2) If the approval of a certain portion of the members is required for adoption of amendments, dissolution, merger, consolidation, or the sale of assets, the votes of delegates shall be counted as votes by the members represented by the delegate;
- (3) Patron members may be represented by the proxy of other patron members; and
- (4) Nonpatron members may be represented by proxy if authorized in the bylaws.
- (e) The following shall apply to absentee ballots:
- (1) A member who is or will be absent from a members' meeting may vote by mail or by an approved alternative method on the ballot prescribed in this subsection (e) on any motion, resolution or amendment that the board submits for vote by mail or alternative method to the members;
- (2) The ballot shall be in the form prescribed by the board and contain:
- (A) The exact text of the proposed motion, resolution or amendment to be acted on at the meeting; and
- (B) The text of the motion, resolution or amendment for which the member may indicate an affirmative or negative vote;
- (3) The member shall express a choice by marking an appropriate choice on the ballot and mail, deliver or otherwise submit the ballot to the cooperative in a plain, sealed envelope inside another envelope bearing the member's name or by an alternative method approved by the board; and
- (4) A properly executed ballot shall be accepted by the board and counted as the vote of the absent member at the meeting.
History (1)
- Acts 2004, ch. 534, § 22.
§ 43-38-523. Voting for cooperative constituted of other cooperatives or associations — Cooperative organized into units or districts of patron members. - (a) A cooperative that is constituted entirely or partially of other cooperatives or associations may authorize by the articles or the bylaws for affiliated cooperative patron members to have an additional vote for:
- (1) A stipulated amount of business transacted between the patron member cooperative and the central cooperative organization;
- (2) A stipulated number of patron members in the member cooperative;
- (3) A certain stipulated amount of equity allocated to or held by the patron member cooperative in the cooperative central organization; or
- (4) A combination of methods in subdivisions (a)(1) through (a)(3).
- (b) A cooperative that is organized into units or districts of patron members, may, by the articles or the bylaws, authorize the delegates elected by its patron members or have an additional vote for:
- (1) A stipulated amount of business transacted between the patron members in the units or districts and the cooperative;
- (2) A certain stipulated amount of equity allocated to or held by the patron members of the units or districts of the cooperative; or
- (3) A combination of methods in subdivisions (b)(1) and (b)(2).
History (1)
- Acts 2004, ch. 534, § 22.
§ 43-38-524. Written member control agreements. - (a) A written agreement among persons who are then members, including a sole member, or who have signed subscription or contribution agreements, relating to the control of any phase of the business and affairs of the cooperative, its liquidation, dissolution and termination, or the relations among members or persons who have signed subscription or contribution agreements is valid as provided in subsection (b). Wherever this chapter provides that a particular result may or must be obtained through a provision in the articles of organization or bylaws, the same result can be accomplished through a member control agreement valid under this section or through a procedure established by a member control agreement valid under this section.
- (b) Other than patron member voting control under § 43-38-522 and patron member allocation and distribution provisions under §§ 43-38-901 and 43-38-902, a written agreement among persons described in subsection (a) that relates to the control of or the liquidation, dissolution and termination of the cooperative, the relations among them, or any phase of the business and affairs of the cooperative, including, without limitation, the management of its business, the declaration and payment of distributions, the sharing of profits and losses, the election of directors, the employment of members by the cooperative, or the arbitration of disputes, is valid, if the agreement is signed by all persons who are then the members of the cooperative, whether or not the members all have voting power, and all those who have signed contribution agreements, regardless of whether those signatories will, when members, have voting power.
- (c) This section does not apply to, limit, or restrict agreements otherwise valid, nor is the procedure set forth in this section the exclusive method of agreement among members or between the members and the cooperative with respect to any of the matters described.
- (d) Any assignee of any member's financial rights may not be a party to an agreement under subsection (a), unless that assignee is also a member or person or entity bound by a binding contribution agreement at the time the agreement is entered into.
- (e) Unless otherwise provided in the articles, bylaws or the member control agreement, the member control agreement will not terminate if the cooperative is combined into a new cooperative pursuant to merger, whether by a merger in dissolution or otherwise. Any other termination of the cooperative's existence will automatically terminate the member control agreement.
History (1)
- Acts 2004, ch. 534, § 22.
§ 43-38-526. Determination of the owners of membership interests. - (a) The articles or bylaws may fix a “record date” for the determination of the owners of membership interests entitled to notice of and entitled to vote at a meeting, to demand a meeting, to vote or to take any other action. When a date is so fixed, only members on that date are entitled to notice of and permitted to vote at that meeting of members or to take any other action on the subject of this notice. If no date is so fixed, the record date is the close of business the business day before the first notice is sent.
- (b) The secretary of the cooperative shall prepare a list of the names of all members who are entitled to vote at the meeting of the members and show the address of and membership interest or interests held by each member as reflected in the records of the cooperative.
- (c) The list must be available for inspection and copying by any member, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the cooperative's principal executive office or at a place identified in the meeting notice in the city where the meeting will be held. A violation of this subsection (c) entitles any member seeking to inspect the list to equitable relief under § 43-38-705.
History (1)
- Acts 2004, ch. 534, § 22.
§ 43-38-527. Grouping of members. - (a) A cooperative may group members and patron members into districts, units or another basis, if and as authorized in its articles and bylaws, which may include authorization for the board to determine the groupings.
- (b) The board may do things necessary to implement the use of districts or units, including setting the time and place and prescribing the rules of conduct for holding meetings by districts or units to elect delegates to members' meetings.
History (1)
- Acts 2004, ch. 534, § 22.
§ 43-38-528. Violations of articles, bylaws, member control agreements or marketing contracts — Surrender of financial rights — Surrender of voting rights. - (a) A member who knowingly, intentionally, or repeatedly violates a provision of the articles, bylaws, member control agreement or marketing contract with the cooperative, may be required by the board to surrender the financial rights of membership interest of any class owned by the member.
- (b) The cooperative shall refund to the member for the surrendered financial rights of membership interest the lesser of the book value or market value of the financial right of the membership interest payable in not more than seven (7) years from the date of surrender, or the board may transfer all of any patron member's financial rights to a class of financial rights held by members who are not patron members, or to a certificate of interest that carries liquidation rights on par with membership interests and is redeemed within seven (7) years after the transfer as provided in the certificate.
- (c) Membership interests required to be surrendered may be reissued or retired and cancelled by the board.
- (d) A member who knowingly, intentionally or repeatedly violates a provision of the articles, bylaws, member control agreement, or a marketing contract, may be required by the board to surrender voting power in the cooperative.
History (1)
- Acts 2004, ch. 534, § 22.
§ 43-38-529. Member liability. - A member is not, merely on account of that status, personally liable for the acts, debts, liabilities, or obligations of a cooperative. A member is liable for any unpaid subscription for the membership interest, unpaid membership fees, or a debt for which the member has separately contracted with the cooperative.
History (1)
- Acts 2004, ch. 534, § 22.
§ 43-38-530. Inspection and copying of records by members. - (a) A member of the cooperative is entitled to inspect and copy, during regular business hours at the cooperative's principal executive office, any of the records of the cooperative described in § 43-38-118, if the member gives the cooperative written notice of the demand at least five (5) business days before the date on which the member wishes to inspect and copy.
- (b) The right of inspection granted by this section may not be abolished or limited by a cooperative's articles or bylaws.
- (c) This section does not affect:
- (1) The right of a member to inspect records, if the member is in litigation with the cooperative, to the same extent as any other litigant; or
- (2) The power of a court to compel the production of records for examination.
History (1)
- Acts 2004, ch. 534, § 23.
§ 43-38-531. Inspection and copying of records by member's agent or attorney. - (a) A member's agent or attorney has the same inspection and copying rights as the member the agent or attorney represents.
- (b) The right to copy records under § 43-38-530 includes, if reasonable, the right to receive copies made by photographic, xerographic, or other means.
- (c) The cooperative may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the member. The charge may not exceed the estimated cost of production or reproduction of the records.
History (1)
- Acts 2004, ch. 534, § 23.
§ 43-38-532. Enforcement of right to inspect and copy records. - (a) If a cooperative does not allow a member who complies with § 43-38-530(a) to inspect and copy any records required by that subsection to be available for inspection, a court in the county where the cooperative's principal executive office, or, if none in this state, its registered office, is located may summarily order inspection and copying of the records demanded at the cooperative's expense upon application of the member.
- (b) If the court orders inspection and copying of the records demanded, it shall also order the cooperative to pay the member's costs, including reasonable counsel fees, incurred to obtain the order, if the member proves that the cooperative refused inspection without a reasonable basis for doubt about the right of the member to inspect the records demanded.
- (c) If the court orders inspection and copying of the records demanded, it may impose reasonable restrictions on the use or distribution of the records by the demanding member.
History (1)
- Acts 2004, ch. 534, § 23.
Part 6 Board of Directors and Officers § 43-38-601. Powers. - (a) All powers shall be exercised by or under the authority of, and the business and affairs of the cooperative shall be managed by or under the direction of the board of directors, subject to subsection (b) and any limitations set forth in the articles or bylaws agreement. A cooperative shall be board-managed, as designated in its articles. Unless otherwise provided in the articles or bylaws, each director shall have equal voting power per capita with each other director.
- (b) For convenience, one (1) or more officers, members or directors may be designated in the articles as persons authorized to execute instruments transferring real property held in the name of the cooperative and may set forth any limitations on this authority. This designation, however, in the absence of a clear statement that the named person or persons are the only person or persons authorized to execute instruments transferring real property, does not imply that other members, officers or directors do not have the authority to execute such instruments under § 43-38-602. A grant of authority contained in the current articles is conclusive in favor of a person who gives value without knowledge to the contrary.
History (1)
- Acts 2004, ch. 534, § 24.
§ 43-38-602. Agency of members in the cooperative. - (a) Unless the articles provide otherwise, no member is an agent of the cooperative for the purpose of its business, other than a member designated by the board of directors, including the execution in the cooperative name of any instrument, for apparently carrying on in the usual way the business of the cooperative of which the person is a member, and a member does not bind the cooperative, unless the member so acting has in fact the authority to act for the cooperative in the particular matter.
- (b) Unless the articles provide otherwise, the following persons are agents of the cooperative and may legally bind the cooperative, subject to the limitation on these persons contained in this chapter:
- (1) The president;
- (2) A person designated in the articles or the bylaws as being so authorized; or
- (3) A person designated in writing by action of the directors as being so authorized.
History (1)
- Acts 2004, ch. 534, § 24.
§ 43-38-603. Goverance of cooperative. - A cooperative shall be governed by its board of directors, which shall take all action for and on behalf of the cooperative, except those actions reserved or granted to members.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-604. Qualifications of directors. - The articles of organization or bylaws may prescribe qualifications for directors. A director need not be a resident of this state or a member of the cooperative, unless the articles of organization or bylaws so prescribe.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-606. Election of directors — Alternative voting. - (a) Directors shall be elected for the term, at the time, and in the manner provided in this section and the bylaws. A majority of the directors shall be members and at least one (1) director shall be elected exclusively by the members holding patron membership interests. The voting authority of the directors shall be as prescribed in the bylaws; provided however, that at least fifty-one percent (51%) of the voting power on general matters of the cooperative shall be allocated to one (1) or more directors elected by members holding patron membership interests, or, in the alternative, one (1) or more directors elected by members holding patron membership interests shall have at least fifty-one percent (51%) voting power on general matters of the cooperative.
- (b) Directors shall be elected at the regular members' meeting for the terms of office prescribed in the bylaws. Except for directors elected at district meetings, all directors shall be elected at the regular members' meeting.
- (c) For a cooperative with districts or other units, members may elect directors on a district or unit basis, if provided in the bylaws. The directors may be nominated or elected at district meetings, if provided in the bylaws. Directors who are nominated at district meetings shall be elected at the annual regular members' meeting by vote of the entire membership, unless the bylaws provide that directors who are nominated at district meetings are to be elected by vote of the members of the district, at the district meeting or the annual regular members' meeting.
- (d) The following shall apply to alternative voting:
- (1) A member may not vote for a director other than by the member's presence at a meeting or by mail ballot authorized by the board of directors, unless alternative voting is authorized for election of directors by the articles or bylaws;
- (2) The ballot shall be in a form prescribed by the board;
- (3) The member shall mark the ballot for the candidate chosen and mail the ballot to the cooperative in a sealed plain envelope inside another envelope bearing the member's name, or shall vote in the alternative manner prescribed by the board; and
- (4) If the ballot of the member is received by the cooperative on or before the date of the regular members' meeting, the ballot shall be accepted and counted as the vote of the absent member.
- (e) If a member of a cooperative is not a natural person, and the bylaws do not provide otherwise, the member may appoint or elect one (1) or more natural persons to be eligible for election as a director to the board.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-607. Filling vacancies. - If a patron member director's position becomes vacant for a director who was elected by patron members, the board shall appoint a patron member of the cooperative to fill the director's position until the next regular or special members' meeting; provided however, that if there is only one (1) patron member director, a special members' meeting shall be called to fill the patron member director vacancy. If the vacating director was not a patron member, the board shall appoint a patron member or a patron member's representative to fill the vacant position. At the next regular or special members' meeting, the members or patron members shall elect a director to fill the unexpired term of the vacant director's position.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-608. Resignation of directors. - (a) A director may resign at any time by delivering written notice to the board of directors, its chair or president, or to the corporation.
- (b) A resignation is effective when the notice is delivered, unless the notice specifies a later effective date.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-609. Removal of directors. - (a) The members electing a director may remove the director at a members' meeting for cause related to the duties of the position of director and fill the vacancy caused by the removal.
- (b) If a director is elected exclusively by the members holding patron membership interests, only the patron members may participate in the vote to remove the director.
- (c) A director may be removed by the members or directors only at a meeting called for the purpose of removing the director, and the meeting notice must state that the purpose, or one (1) of the purposes, of the meeting is removal of directors.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-611. Limitation of director's liability. - (a) A director's personal liability to the cooperative or members for monetary damages for breach of fiduciary duty as a director may be eliminated or limited in the articles, except as provided in subsection (b).
- (b) The articles may not eliminate or limit the liability of a director for:
- (1) A breach of the director's duty of loyalty to the cooperative or its members;
- (2) Acts or omissions that are not in good faith or involve intentional misconduct or a knowing violation of law;
- (3) A transaction from which the director derived an improper personal benefit; or
- (4) An act or omission occurring before the date when the provision in the articles eliminating or limiting liability becomes effective.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-612. Meetings of the board of directors — Place — Electronic communication — Special meetings — Notice — Waiver of notice. - (a) Meetings of the board of directors may be held from time to time as provided in the articles or bylaws at any place within or without the state that the board of directors may select or by any means described in subsection (b). If the board of directors fails to select a place for a meeting, the meeting must be held at the principal executive office, unless the articles or bylaws provide otherwise.
- (b)
- (1) Unless the articles or bylaws provide otherwise, the board of directors may permit any or all directors to participate by or conduct the meeting through the use of any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting and the minutes may reflect this.
- (2) A meeting held by electronic communication shall be deemed held at the location required by this section, articles or bylaws.
- (c) Unless the articles or bylaws provide otherwise, the chief manager or the lesser of a majority of the directors or two (2) directors may call a special meeting of the board of directors by giving two (2) days' notice to all directors of the date, time and place of the meeting. The notice need not state the purpose of the meeting, unless this chapter, the articles or the bylaws require it.
- (d) If the day or date, time, and place of a board of directors' meeting have been provided in the articles or bylaws, or a regular meeting date, time and place have been established by the board of directors, no notice of the meeting is required. Notice of an adjourned meeting need not be other than by announcement at the meeting at which adjournment is taken; provided, that the period of adjournment does not exceed one (1) month for any one (1) adjournment.
- (e)
- (1) A director may waive any notice required by this section, the articles or bylaws before or after the date and time stated in the notice. Except as provided in subdivision (e)(2), the waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes or other records of the cooperative.
- (2) A director's attendance at or participation in a meeting waives any required notice to the director of the meeting, unless the director at the beginning of the meeting, or promptly upon arrival, objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to any action taken at the meeting.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-613. Quorum of the board. - (a) Unless the articles or bylaws require a different number, a quorum of a board of directors consists of:
- (1) A majority of the fixed number of directors, if the cooperative has a fixed board size; or
- (2) A majority of the number of directors prescribed under the articles or bylaws, or if no number is prescribed, the number in office immediately before the meeting begins, if the cooperative has a variable-range board.
- (b) The articles or bylaws may authorize a quorum of a board of directors to consist of no fewer than one third (⅓) of the fixed or prescribed number of directors determined under subsection (a).
- (c) If a quorum is present, the affirmative vote of a majority of directors present is the act of the board of directors, unless the act, articles or bylaws require the vote of a greater number of directors.
- (d) If a quorum is present when a duly called or held meeting is convened, the directors present may continue to transact business until adjournment, even though the withdrawal of a number of directors originally present leaves less than the proportion or number otherwise required for a quorum.
- (e) A director who is present at a meeting of the board of directors when cooperative action is taken is deemed to have assented to the action taken unless:
- (1) The director objects at the beginning of the meeting, or promptly upon the director's arrival, to holding the meeting or transacting business at the meeting;
- (2) The director's dissent or abstention from the action taken is entered in the minutes of the meeting; or
- (3) The director delivers written notice of dissent or abstention to the presiding officer of the meeting before its adjournment or to the cooperative immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-614. Action without a meeting of the board of directors. - (a)
- (1) Unless the articles or bylaws provide otherwise, an action required or permitted to be taken at a board of directors' meeting may be taken without a meeting. If all directors consent to taking the action without a meeting, the affirmative vote for the number of directors that would be necessary to authorize or take the action at a meeting is the act of the board of directors. The action must be evidenced by one (1) or more written consents describing the action taken, signed by each director in one (1) or more counterparts, indicating the signing director's vote or abstention on the action, and shall be included in the minutes or filed with the cooperative's records reflecting the action taken.
- (2) Notwithstanding subdivision (a)(1), the articles or bylaws may provide for written director action to be taken without all directors consenting to the waiver of actual meeting, but this consent must be of at least two thirds (⅔) of the directors.
- (b) The written action is effective when the last required director signs the action, unless a different effective time is provided in the written action.
- (c) If the articles or bylaws permit written action and waiver of meetings by less than all directors, all directors must be notified immediately of the action's text and effective date. Failure to provide the notice does not invalidate the written action. A director who does not sign or consent to the written action has no liability for the action or actions taken by this written action.
- (d) A consent signed under this section has the effect of a meeting vote and may be described as such in any document. Any action requiring a meeting by the board of directors is satisfied by a consent signed under this section.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-615. Creation of committees. - (a) Unless the articles or bylaws provide otherwise, the board of directors may create one (1) or more committees. A committee may consist of one (1) member. All members of committees of the board of directors who exercise powers of the board of directors must be members of the board of directors and serve at the pleasure of the board of directors.
- (b) The creation of a committee and appointment of a member or members to it must be approved by the greater of:
- (1) A majority of all the directors in office when the action is taken; or
- (2) The number of directors required by the articles or bylaws to take action under § 43-38-613.
- (c) Sections 43-38-612 — 43-38-614, which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the board of directors, apply to committees and their members as well.
- (d) To the extent specified by the board of directors or in the articles or bylaws, each committee may exercise the authority of the board of directors under § 43-38-603.
- (e) A committee may not:
- (1) Authorize distributions, except according to a formula or method prescribed by the board of directors;
- (2) Fill vacancies on the board of directors or on any of its committees;
- (3) Adopt, amend, or repeal bylaws; or
- (4) Authorize or approve the issuance or sale or contract for sale of shares or determine the designation and relative rights, preferences, and limitation of a class or series of shares, except that the board of directors may authorize a committee, or senior executive officer of the cooperative, to do so within limits specifically prescribed by the board of directors.
- (f) The creation of, delegation of authority to, or action by a committee does not alone constitute compliance by a director with the standards of conduct described in § 43-38-616.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-616. Standards for directors. - (a) A director shall discharge the duties of the position as a director, including duties as a member of a committee, in good faith, in a manner the director reasonably believes to be in the best interests of the cooperative, and with the care an ordinary prudent person in a like position would exercise under similar circumstances.
- (b)
- (1) A director is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, prepared or presented by:
- (A) One (1) or more officers or employees of the cooperative whom the director reasonably believes to be reliable and competent in the matters presented;
- (B) Legal counsel, public accountants, or other persons as to matters that the director reasonably believes are within the person's professional or expert competence; or
- (C) A committee of the board of directors of which the director is not a member, if the director reasonably believes the committee merits confidence.
- (2) A director is not acting in good faith if the director has knowledge concerning the matter in question that makes reliance otherwise permitted by subdivision (b)(1) unwarranted.
- (c) A director is not liable for any action taken as a director, or any failure to take action, if the director performed the duties of the office in compliance with subsections (a) and (b).
- (d) A director's personal liability to the cooperative or its members for monetary damages for breach of fiduciary duty as a director may be eliminated or limited in the articles or bylaws; such provisions shall not eliminate or limit the liability of a director for the following:
- (1) For any breach of the director's duty or loyalty to the cooperative or its members; however, the articles or bylaws may define the duty loyalty in a manner to reflect the understanding of the parties; provided, that this definition is not manifestly unreasonable under the circumstances;
- (2) For acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
- (3) Under § 43-38-904; or
- (4) For any act or omission occurring before the date when the provision in the articles eliminating or limiting liability becomes effective.
- (e) Notwithstanding anything to the contrary in this section, the articles or bylaws may define the standard of conduct for directors in a manner to reflect the understanding of the parties; provided, that this definition is not manifestly unreasonable under the circumstances.
- (f) A person alleging a violation of this section has the burden of proving the violation.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-617. Conflict of interest. - (a) A conflict of interest transaction is a transaction with the cooperative in which a director, officer or non-director member of a special litigation committee of the cooperative has a direct or indirect interest. A conflict of interest transaction is not voidable by the cooperative solely because of the director's or officer's interest in the transaction if any one (1) of the following is true:
- (1) The material facts of the transaction and the director's or officer's interest were disclosed or known to the board of directors or a committee of the board of directors and the board of directors or committee authorized, approved, or ratified the transaction;
- (2) The material facts of the transaction and director's or officer's interest were disclosed or known to the members entitled to vote and they authorized, approved, or ratified the transaction;
- (3) The transaction was fair to the cooperative;
- (4) The transaction was of a nature in which the conflict of interest is waived by the articles or bylaws. The waiver shall be upheld unless manifestly unreasonable under the circumstances.
- (b) For purposes of this section, a director or officer of the cooperative has an indirect interest in a transaction, if, but not only if:
- (1) Another entity in which the director or officer has material financial indirect interest or in which the director or officer is a general partner is party to the transaction; or
- (2) Another entity of which the director or officer is a governor, director, manager, officer or trustee is a party to the transaction and the transaction is or should be considered by the board of directors of the cooperative.
- (c) For purposes of subdivision (a)(1), a conflict of interest transaction is authorized, approved, or ratified, if it receives the affirmative vote of a majority of the directors on the board of directors, or on the committee, who have no direct or indirect interest in the transaction, but a transaction may not be authorized, approved, or ratified under this section by a single director. If a majority of the directors who have no direct or indirect interest in the transaction vote to authorize, approve, or ratify the transaction, a quorum must be present for the purpose of taking action under this section. The presence of, or a vote cast by, a director with a direct or indirect interest in the transaction does not affect the validity of any action taken under subdivision (a)(1), if the transaction is otherwise authorized, approved, or ratified as provided in subdivision (a)(1).
- (d) For purposes of subdivision (a)(2), a conflict of interest transaction is authorized, approved, or ratified if it receives the vote of a majority of the membership interests entitled to be counted under this subsection (d). Membership interests owned by or voted under the control of a director or officer who has a direct or indirect interest in the transaction, and membership interests owned by or voted under the control of an entity described in subdivision (b)(1), may not be counted in a vote of members to determine whether to authorize, approve or ratify a conflict of interest transaction under subdivision (a)(2). The vote of those membership interests, however, shall be counted in determining whether the transaction is approved under other provisions of this chapter. A majority of the membership interests, whether or not present, that are entitled to be counted in a vote on the transaction under this subsection (d) constitutes a quorum for the purpose of taking action under this section.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-618. Officers. - The cooperative shall have a president and a secretary who shall not be the same person, and such other officers as may be elected or appointed by the board of directors in accordance with § 43-38-619.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-619. Election or appointment of officers. - The board of directors shall elect or appoint, in a manner set forth in the articles or bylaws or in a resolution approved by the affirmative vote of a majority of the directors present, a president, secretary and any other officers or agents the board of directors considers necessary or desirable for the operation and management of the cooperative. These officers and agents have the powers, rights, duties, responsibilities, and terms of office provided for in the articles or bylaws, or as determined by the board of directors.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-620. Residency requirements for officers. - Officers need not be residents of this state or members of the cooperative, unless the articles or bylaws so require. The articles or bylaws may prescribe other qualifications for officers.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-621. Standards for officers. - (a) An officer with discretionary authority shall discharge all duties under that authority:
- (1) In good faith;
- (2) With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and
- (3) In a manner the officer reasonably believes to be in the best interest of the cooperative.
- (b) In discharging these duties, an officer is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by:
- (1) One (1) or more officers or employees of the cooperative, or a subsidiary of the cooperative, whom the officer reasonably believes to be reliable and competent in the matter presented; or
- (2) Legal counsel, public accountants, or other persons as to matters the officer reasonably believes are within the person's professional or expert competence.
- (c) An officer is not acting in good faith if the officer has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (b) unwarranted.
- (d) An officer is not liable for any action taken as an officer or any failure to take any action, if the officer performed the duties of office in compliance with this section.
History (1)
- Acts 2004, ch. 534, § 25.
§ 43-38-622. Resignation or removal of officers. - (a) An officer may resign at any time by delivering notice to the cooperative. A resignation is effective when the notice is delivered, unless the notice specifies a later effective date. If a resignation is made effective at a later date and the cooperative accepts the future effective date, the cooperative's board of directors may fill the pending vacancy before the effective date. The cooperative's board of directors may fill the pending vacancy before the effective date, if the board of directors provides that the successor does not take office until the effective date.
- (b) A board of directors may remove any officer at any time with or without cause, and any officer or assistant officer, if appointed by another officer, may likewise be removed by that officer.
History (1)
- Acts 2004, ch. 534, § 25.
Part 7 Derivative Proceedings § 43-38-701. Derivative actions. - A member may not commence a proceeding in the name of a domestic cooperative, unless the member was a member of the cooperative when the transaction complained of occurred, or unless the member becomes a member through transfer by operation of law from one who was a member at that time.
History (1)
- Acts 2004, ch. 534, § 26.
§ 43-38-702. Complaint. - A complaint in a proceeding brought in the name of a cooperative must allege with particularity the demand made, if any, to obtain action by the board of directors or officers, and either that the demand was refused or ignored, or why the member did not make a demand.
History (1)
- Acts 2004, ch. 534, § 26.
§ 43-38-703. Court approval needed to discontinue or settle a proceeding. - A proceeding commenced under this part may not be discontinued or settled without the court's approval. If the court determines that a proposed discontinuance or settlement will substantially affect the interest of the cooperative or a class of members and holders of financial rights, the court shall direct that notice be given the members and holders of financial rights affected. If notice is so directed to be given, the court may determine which one (1) or more parties to the suit shall bear the expense of giving the notice, in the proportions the court finds to be reasonable in the circumstances, and the amount of the expense shall be awarded as special costs of the suit and recoverable in the same manner as other taxable costs.
History (1)
- Acts 2004, ch. 534, § 26.
§ 43-38-704. Expenses. - (a) On termination of the proceeding the court may require the plaintiff to pay the defendant's reasonable expenses, including counsel fees, incurred in defending the proceeding, if it finds that the proceeding was commenced without reasonable cause.
- (b) If a derivative action is successful in whole or in part, or if anything is received by the plaintiff as a result of a judgment, compromise or settlement of any such action, the court may award the plaintiff reasonable expenses, including reasonable counsel fees. If anything is so received by the plaintiff, the court shall make the award of the plaintiff's expenses payable out of those proceeds and direct the plaintiff to remit to the cooperative the remainder thereof, and if those proceeds are insufficient to reimburse the plaintiff's reasonable expenses, the court may direct that the award of the plaintiff's expenses or portion thereof be paid by the cooperative.
History (1)
- Acts 2004, ch. 534, § 26.
§ 43-38-705. Equitable relief. - If a cooperative or an officer or director of the cooperative violates a provision of this chapter, a court in this state may, in an action brought by a member of the cooperative, grant any equitable relief it considers just and reasonable in the circumstances and award expenses, including counsel fees and disbursements, to the member.
History (1)
- Acts 2004, ch. 534, § 26.
Part 8 Dissenter's Rights § 43-38-801. Part definitions. - As used in this part, unless the context otherwise requires:
- (1) “Cooperative” means a cooperative whose members have obtained rights to dissent under § 43-38-802(a), and includes any successor by merger;
- (2) “Dissenter” means a member who is entitled to dissent from cooperative action under § 43-38-802(a) and who exercises that right when and in the manner required under this part;
- (3) “Fair value” means the value of the dissenter's membership interest of a cooperative immediately before the effective date of the cooperative action referred to in § 43-38-802(a), excluding any appreciation or depreciation in anticipation of the cooperative action;
- (4) “Interest” means interest from the effective date of the action referred to in § 43-38-802(a) that gave rise to the member's right to dissent until the date of payment, at the average auction rate paid on United States treasury bills with a maturity of six (6) months, or the closest maturity to that date, as of the auction date for such treasury bills closest to the effective date; and
- (5) “Member” includes a former member when dissenter's rights exist because:
- (A) The membership of the former member has terminated causing dissolution; and
- (B) The dissolved cooperative has then entered into a merger under § 43-38-122 or § 43-38-123.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-802. Actions entitling member to dissent. - (a) A member of a cooperative is entitled to dissent from and obtain payment of the fair value, as determined under § 43-38-807, of the member's membership interests in the event of any of the following cooperative actions:
- (1) Consummation of a plan or merger to which the cooperative is a party;
- (2) Consummation of a sale, lease, transfer, or other disposition of all or substantially all of the property and assets of the cooperative not made in the usual or regular course of the cooperative's business, but not including a disposition in dissolution described in § 43-38-1009(b), or a disposition pursuant to an order of a court, or a disposition for cash on terms requiring that all or substantially all of the net proceeds of disposition be distributed to the members in accordance with their respective membership interests within one (1) year after the date of disposition;
- (3) Except as provided in the articles or bylaws in effect when the person becomes a member or placed in the agreement without the opposing vote of the member, an amendment of the articles or bylaws that materially and adversely affects the rights or preferences of the membership interests of the dissenting member because it:
- (A) Alters or abolishes a preferential right of the membership interests;
- (B) Alters or abolishes a preemptive right of the owner of the membership interests to make a contribution;
- (C) Excludes or limits the right of a member to vote on a matter, or to cumulate votes, except as the right may be excluded or limited through the acceptance of contributions or the marking of contribution agreements pertaining to membership interests with similar or different voting rights; or
- (D) Establishes or changes the conditions for or consequences of expulsion;
- (4) An amendment to the articles or bylaws that materially and adversely affects the rights or preferences of the membership interests of the dissenting member because it:
- (A) Changes a member's right to resign or retire; or
- (B) Alters or abolishes a right in respect of the remedies of the membership interests, including a provision respecting a sinking fund for the redemption or repurchase of membership interests; and
- (5) Any other cooperative action taken pursuant to a member vote to the extent the articles, the bylaws, or a resolution approved by the members provides that dissenting members are entitled to dissent and obtain payment for their membership interests.
- (b) A member entitled to dissent and obtain payment for the member's membership interest under this part may not challenge the cooperative action creating the member's entitlement unless the action is unlawful or fraudulent with respect to the member or the cooperative.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-803. Submitting action creating dissenter's right to vote. - (a) If proposed cooperative action creating dissenter's rights under § 43-38-802 is submitted to a vote at a members' meeting, the meeting notice must state that members are or may be entitled to assert dissenter's rights under this part and be accompanied by a copy of this part.
- (b) If cooperative action creating dissenter's rights under § 43-38-802 is taken without a vote of the members, the cooperative shall notify in writing all members entitled to assert dissenter's rights that the action was taken and send them the dissenter's notice described in § 43-38-805.
- (c) A cooperative's failure to give notice pursuant to this section will not invalidate the cooperative action.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-804. Procedure for asserting dissenter's rights. - (a) If proposed cooperative action creating dissenter's rights under § 43-38-802 is submitted to vote at a members' meeting, a member who wishes to assert dissenter's rights:
- (1) Must deliver to the cooperative, before the vote is taken, written notice of the member's intent to demand payment for the member's membership interest if the proposed action is effectuated; and
- (2) Must not vote the member's membership interest in favor of the proposed action. No written notice of intent to demand payment is required of any member to whom the cooperative failed to provide the notice required by § 43-38-803.
- (b) A member who does not satisfy the requirements of subsection (a) is not entitled to payment for the member's membership interest under this part.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-805. Written notice to members. - (a) If proposed cooperative action creating dissenter's rights under § 43-38-802 is authorized at a members' meeting, the cooperative shall deliver a written dissenter's notice to all members who satisfied the requirements of § 43-38-804.
- (b) The dissenter's notice must be sent no later than ten (10) days after the cooperative action was authorized by the members or effectuated, whichever is the first to occur, and must:
- (1) State where the payment demand must be sent;
- (2) Supply a form for demanding payment that includes the date of the first announcement to news media or to members of the principal terms of the proposed cooperative action and requires that the person asserting dissenter's rights certify whether or not the member acquired membership interest before that date;
- (3) Set a date by which the cooperative must receive the payment demand, which date may not be fewer than one (1) nor more than two (2) months after the date required in subsection (a) is delivered; and
- (4) Be accompanied by a copy of this part, if the cooperative has not previously sent a copy of this part to the member pursuant to § 43-38-803.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-806. Duty to demand payment. - (a) A member sent a dissenter's notice described in § 43-38-805 must demand payment and certify whether the member acquired the membership interest before the date required to be set forth in the dissenter's notice pursuant to § 43-38-805(b)(2).
- (b) The member who demands payment under subsection (a) retains all other rights of a member until these rights are cancelled or modified by the effectuation of the proposed cooperative action.
- (c) A member who does not demand payment by the date set in the dissenter's notice is not entitled to payment for the member's membership interest under this part.
- (d) A demand for payment filed by a member may not be withdrawn unless the cooperative with which it was filed, or the surviving cooperative consents to the withdrawal.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-807. Payment of fair value of dissenter's membership interest. - (a) Except as provided in § 43-38-809, as soon as the proposed cooperative action is effectuated, or upon receipt of a payment demand, whichever is later, the cooperative shall pay each dissenter who complied with § 43-38-806 the amount the cooperative estimates to be the fair value of the dissenter's membership interest, plus accrued interest.
- (b) The payment must be accompanied by:
- (1) The cooperative's balance sheet as of the end of a fiscal year ending not more than sixteen (16) months before the date of payment, an income statement for that year, and the latest available interim financial statements, if any;
- (2) A statement of the cooperative estate of the fair value of the membership interests;
- (3) An explanation of how the value of the membership interest was calculated;
- (4) A statement of the dissenter's right to demand payment under § 43-38-810; and
- (5) A copy of this part, if the cooperative has not previously sent a copy of this part to the member pursuant to § 43-38-803 or § 43-38-805.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-808. Failure to take action. - If the cooperative does not effectuate the proposed action that gave rise to the dissenter's rights within two (2) months after the date set for demanding payment, the cooperative must send a new dissenter's notice under § 43-38-804 and repeat the payment demand procedure if it effectuates the proposed action.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-809. After-acquired shares. - (a) A cooperative may elect to withhold payment required by § 43-38-807 from a dissenter unless the dissenter was a member before the date set forth in the dissenters' notice as of the date of the first announcement to news media or to members of the principal terms of the proposed cooperative action.
- (b) To the extent the cooperative elects not to withhold payment under subsection (a), after effectuating the proposed cooperative action, it shall estimate the fair value of the membership interest, plus accrued interest, and shall pay this amount to each dissenter who agrees to accept it in full satisfaction of the dissenter's demand. The cooperative shall send with its offer a statement of its estimate of the fair value of the membership interest, an explanation of how the interest was calculated, and a statement of the dissenter's right to demand payment under § 43-38-810.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-810. Procedure if dissenter dissatisfied with payment or offer. - (a) A dissenter may notify the cooperative in writing of the dissenter's own estimate of the fair value of the dissenter's membership interest and amount of interest due, and demand payment of the dissenter's estimate, less any payment under § 43-38-807, or reject the cooperative offer under § 43-38-809 and demand payment of the fair value of membership interest and interest due, if:
- (1) The dissenter believes that the amount paid under § 43-38-807 or offered under § 43-38-809 is less than the fair value of the dissenter's membership interest or that the interest due is incorrectly calculated; or
- (2) The cooperative fails to make payment under § 43-38-807 within two (2) months after the date set for demanding payment.
- (b) A dissenter waives the right to demand payment under this section unless the dissenter notifies the cooperative of the dissenter's demand in writing under subsection (a) within one (1) month after the cooperative made or offered payment for the dissenter's membership interest.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-811. Judicial appraisal of shares. - (a) If a demand for payment under § 43-38-810 remains unsettled, the cooperative shall commence a proceeding within two (2) months after receiving the payment demand and petition the court to determine the fair value of the membership interest and accrued interest. If the cooperative does not commence the proceeding within the two-month period, it shall pay each dissenter whose demand remains unsettled the amount demanded.
- (b) The cooperative shall commence the proceeding in a court of record having equity jurisdiction in the county where the cooperative's principal executive office, or, if none in this statement, its registered office, is located.
- (c) The cooperative shall make all dissenters, whether or not residents of this state, whose demands remain unsettled, parties to the proceeding as an action against their membership interests, and all parties must be served with a copy of the petition. Nonresidents may be served by registered or certified mail or by publication as provided by law.
- (d) The jurisdiction of the court in which the proceeding is commenced under subsection (b) is plenary and exclusive. The court may appoint one (1) or more persons as appraisers to receive evidence and recommend decision on the question of fair value. The appraisers have the powers described in the order appointing them, or in any amendment to it. The dissenters are entitled to the same discovery rights as parties in other civil proceedings.
- (e) Each dissenter made a party to the proceeding is entitled to judgment:
- (1) For the amount, if any, by which the court finds the fair value of the dissenter's membership interest plus accrued interest exceeds the amount paid by the cooperative; or
- (2) For the fair value, plus accrued interest, or the dissenter's after-acquired membership interests for which the cooperative elected to withhold payment under § 43-38-809.
- (f) The cooperative is entitled to judgment against each specific dissenter for the amount, if any, by which the court finds the fair value of the dissenter's membership interest, plus accrued interest, is less than the amount paid by the cooperative to each dissenter.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-812. Costs and fees of judicial appraisal. - (a) The court in an appraisal proceeding commenced under § 43-38-811 shall determine all costs of the proceeding including the reasonable compensation and expenses of appraisers appointed by the court. The court shall assess the costs against the cooperative, except that the court may assess costs against all or some of the dissenters, in amounts the court finds equitable, to the extent the court finds the dissenters acted arbitrarily, vexatiously, or not in good faith in demanding payment under § 43-38-810.
- (b) The court may also assess the fees and expenses of counsel and experts for the respective parties in amounts the court finds equitable:
- (1) Against the cooperative and in favor of any or all dissenters if the court finds the cooperative did not substantially comply with the requirements of §§ 43-38-802 — 43-38-810.
- (2) Against either the cooperative or a dissenter, in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this part.
- (c) If the court finds that the services of counsel for any dissenter were of substantial benefit to other dissenters similarly situated, and that the fees for those services should not be assessed against the cooperative, the court may award to counsel reasonable fees to be paid out of the amounts awarded to the dissenters who were benefited.
History (1)
- Acts 2004, ch. 534, § 27.
§ 43-38-813. Procedures as to assignees of financial rights. - When an assignment of some or all of the financial rights of a membership is in effect and a copy delivered to the cooperative prior to the time described in § 43-38-807, then as to that membership interest §§ 43-38-801 — 43-38-812 must be followed, subject to the following:
- (1) All rights to be exercised and actions to be taken by a member under §§ 43-38-802 — 43-38-812 shall be taken by the member and not by any assignee of the member's financial rights. As between the cooperative and the assignees, the actions taken or omitted by the member bind the assignees;
- (2) Instead of remitting a payment under § 43-38-807, the cooperative shall forward to the dissenter member:
- (A) The materials described in § 43-38-807(b);
- (B) An offer to pay the amount listed in the materials, with that amount to be allocated among and paid to the member and the assignees of financial rights according to the terms of the assignments reflected in the required records; and
- (C) A statement of that allocation;
- (3) If the dissenter member accepts the amount of the offer made under subdivision (2) but disputes the allocation, the dissenter shall promptly so notify the cooperative and promptly after notification bring an action to determine the proper allocation. The suit must be filed in the county in which the registered office of the cooperative is located. The suit must name as parties the member, the cooperative and all assignees of the members financial rights. Upon being served with the action, the cooperative shall promptly pay into the court the amount offered under subdivision (2) and shall then be dismissed from the action;
- (4) If the dissenter considers the amount offered under subdivision (2) inadequate, the dissenter may decline the offer and demand payment under § 43-38-810. If the dissenter makes demand, §§ 43-38-811 and 43-38-812 apply, with the court having jurisdiction also to determine the correctness of the allocation; and
- (5) If the member fails to take action under either subdivision (3) or (4), then:
- (A) As to the cooperative, both the member and the assignees of the member's financial rights are limited to the amount and allocation offered under subdivision (2); and
- (B) The cooperative discharges its obligation of payment by making payment according to the amount and allocation offered under subdivision (2).
History (1)
- Acts 2004, ch. 534, § 27.
Part 9 Contribution and Distribution § 43-38-901. Allocation of profits and losses. - (a) The bylaws shall prescribe the allocation of profits and losses between patron membership interests collectively and other membership interests. If the bylaws do not otherwise provide, the profits and losses between patron membership interests collectively and other membership interests shall be allocated on the basis of the value of contributions to capital made by the patron membership interests collectively and other membership interests and accepted by the cooperative. The allocation of profits to the patron membership interests collectively shall not be less than fifteen percent (15%) of the total profits in any fiscal year.
- (b) The bylaws shall prescribe the distribution of cash or other assets of the cooperative among the membership interests of the cooperative. If not otherwise provided in the bylaws, distribution shall be made to the patron membership interests collectively and other members on the basis of the value of contributions to capital made and accepted by the cooperative by the patron membership interests collectively and other membership interests. The distributions to patron membership interests collectively shall not be less than fifteen percent (15%) of the total distributions in any fiscal year.
History (1)
- Acts 2004, ch. 534, § 28.
§ 43-38-902. Creation and maintance of a capital reserve — Distribution of net income. - (a) A cooperative may set aside a portion of net income allocated to the patron membership interests as the board determines advisable to create or maintain a capital reserve.
- (b) In addition to a capital reserve, the board may, for patron membership interests:
- (1) Set aside an amount not to exceed five percent (5%) of the annual net income of the cooperative for promoting and encouraging cooperative organization; and
- (2) Establish and accumulate reserves for new buildings, machinery and equipment, depreciation, losses, and other proper purposes.
- (c) Net income allocated to patron members in excess of dividends on equity and additions to reserves shall be distributed to patron members on the basis of patronage. A cooperative may establish allocation units, whether the units are functional, divisional, departmental, geographic, or otherwise, and pooling arrangements, and may account for and distribute net income to patrons on the basis of allocation units and pooling arrangements. A cooperative may offset the net loss of an allocation unit or pooling arrangement against the net income of other allocation units or pooling arrangements.
- (d) Distribution of net income shall be made at least annually. The board shall present to the members at their annual meeting a report covering the operations of the cooperative during the preceding fiscal year.
- (e) A cooperative may distribute net income to patron members in cash, capital credits, allocated patronage equities, revolving fund certificates, or its own or other securities.
- (f) The cooperative may provide in the bylaws that nonmember patrons are allowed to participate in the distribution of net income payable to patron members on equal terms with patron members.
- (g) If a nonmember patron with patronage credits is not qualified or eligible for membership, a refund due may be credited to the patron's individual account. The board may issue a certificate of interest to reflect the credited amount. After the patron is issued a certificate of interest, the patron may participate in the distribution of income on the same basis as a patron member.
History (1)
- Acts 2004, ch. 534, § 28.
§ 43-38-903. Limitations on distribution. - (a) No distribution may be made by a cooperative if, after giving effect to the distribution:
- (1) The cooperative would not be able to pay its debts as they became due in the normal course of business; or
- (2) The cooperative's total assets would be less than the sum of its total liabilities, plus, unless the articles or bylaws permit otherwise, the amount that would be needed if the cooperative were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of members whose preferential rights are superior to the rights of members receiving the distribution and excluding liabilities for which the recourse of creditors is limited to specified property of the cooperative, except that the fair value of property that is subject to a liability for which the recourse is limited shall be included in the assets of the cooperative only to the extent that the fair value of the property exceeds that liability.
- (b) The cooperative may base a determination that a distribution is not prohibited under subsection (a) either on:
- (1) Financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances; or
- (2) A fair valuation or other method that is reasonable in the circumstances.
- (c) The effect of a distribution under subsection (a) is measured as:
- (1) The date the distribution is authorized if the payment occurs within four (4) months after the date of authorization; or
- (2) The date the payment is made if it occurs more than four (4) months after the date of authorization.
- (d) If indebtedness is issued as a distribution, each payment of principal or interest on the indebtedness is treated as a distribution, the effect of which is measured on the date the payment is actually made.
- (e) A cooperative's indebtedness to a member incurred by reason of a distribution made in accordance with this section is at parity with the cooperative's indebtedness to its general unsecured creditors, except to the extent subordinated by agreement and except to the extent provided otherwise by § 43-38-1009(c).
History (1)
- Acts 2004, ch. 534, § 28.
§ 43-38-904. Liability for unlawful distribution. - (a) Unless the member or director complies with the applicable standards of conduct set forth in § 43-38-616, a member or director who votes for or assents to a distribution made in violation of § 43-38-903 or the articles or bylaws is personally liable to the cooperative for the amount of the distribution that exceeds what could have been distributed without violating § 43-38-903 or the articles or bylaws.
- (b) A director or member held liable for an unlawful distribution under subsection (a) is entitled to contribution:
- (1) From every other director and member who voted for or assented to the distribution; and
- (2) From each member for the amount the member accepted, knowing the distribution was made in violation of § 43-38-903 or the articles or bylaws.
- (c) Subject to subsection (d), this section shall not affect any obligation or liability of a director or member under the articles or bylaws or other applicable law for the amount of a distribution.
- (d) Unless otherwise agreed, a member who receives a distribution from a cooperative or an officer or director who votes for or assents to the distribution shall have no liability under this section or other applicable law for the amount of the distribution after the expiration of three (3) years from the date of the distribution.
History (1)
- Acts 2004, ch. 534, § 29.
Part 10 Dissolution and Termination § 43-38-1001. Dissolution by organizers or initial directors. - (a) A majority of the organizers or initial directors of a cooperative that has not issued membership interest or has not commenced business may dissolve the cooperative by delivering to the secretary of state for filing articles of dissolution and termination that set forth:
- (1) The name of the cooperative;
- (2) The date of its incorporation;
- (3) Either that:
- (A) None of the cooperative membership interest have been issued; or
- (B) The cooperative has not commenced business;
- (4) That no debt of the cooperative remains unpaid;
- (5) That the net assets of the cooperative remaining after winding up have been distributed to the members, if membership interests were issued; and
- (6) That a majority of the organizers or initial directors authorized the dissolution and the date dissolution was thus authorized.
- (b) If the secretary of state finds that the articles of dissolution and termination of its cooperative existence comply with the requirements of subsection (a), the secretary of state shall file the articles of dissolution, except that the termination of its existence shall not take away or impair any remedy to or against the cooperative, its directors, officers or members, for any right of claim existing or any liability incurred, prior to the termination. Any such action or proceeding by or against the cooperative may be prosecuted or defended by the cooperative in its name. The members, directors, and officers have the power to take such action as may be appropriate to protect the remedy, right or claim.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1002. Voluntary dissolution. - (a) A cooperative may be voluntarily dissolved by the written consent of its members in accordance with § 43-38-1008.
- (b) A cooperative's board of directors may propose dissolution for submission to the members.
- (c) For a proposal to dissolve to be adopted:
- (1) The board of directors shall recommend dissolution to the members unless the board of directors determines that because of a conflict of interest or other special circumstances, it should make no recommendation and communicates the basis for its determination to the members; and
- (2) The members entitled to vote shall approve the proposal to dissolve as provided in subsection (f).
- (d) The board of directors may condition its submission of the proposal for dissolution on any basis.
- (e) The cooperative shall notify each member, whether or not entitled to vote, of the proposed members' meeting in accordance with § 43-38-512. The notice must also state that the purpose, or one (1) of the purposes, of the meeting is to consider dissolving the cooperative and that dissolution must be followed by the winding up and termination of the cooperative.
- (f) Unless the articles or the board of directors, acting pursuant to subsection (d), require a greater vote or a vote by voting groups, if the proposed dissolution is approved at a meeting by a majority vote, the cooperative must be dissolved and notice of dissolution shall be filed with the office of the secretary of state pursuant to § 43-38-1008.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1003. Grounds for administrative dissolution. - The secretary of state may commence a proceeding under § 43-38-1004 to dissolve administratively the cooperative if:
- (1) The cooperative does not deliver its properly completed annual report to the secretary of state within two (2) months after it is due;
- (2) The cooperative is without a registered agent or registered office in this state for two (2) months or more;
- (3) The name of a cooperative contained in a document filed pursuant to this chapter fails to comply with § 43-38-105;
- (4) The cooperative does not notify the secretary of state within two (2) months that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued;
- (5) The cooperative delivers to the secretary of state's office a check, bank draft, money order or other such instrument for payment of any fee and it is dishonored upon presentation for payment; or
- (6) A director, officer, member or other representative of a cooperative signs a document the person knew was false in any material respect with the intent that the document be delivered to the secretary of state for filing.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1004. Procedure for and effect of administrative dissolution. - (a) If the secretary of state determines that one (1) or more grounds exist under § 43-38-1003 for dissolving a cooperative, the secretary of state shall serve the cooperative with written communication of the secretary of state's determination in accordance with §§ 43-38-110 and 43-38-111, except that the determination may be sent by first class mail.
- (b) If the cooperative does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the secretary of state that each ground determined by the secretary of state does not exist within two (2) months after service of the communication in accordance with §§ 43-38-110 and 43-38-111, the secretary of state shall administratively dissolve the cooperative by signing a certificate of dissolution that recites the ground or grounds for dissolution and its effective date. The secretary of state shall file the original of the certificate and serve a copy on the cooperative in accordance with §§ 43-38-110 and 43-38-111, except that the certificate may be sent by first class mail.
- (c) A cooperative administratively dissolved continues its existence but may not carry on any business, except that necessary to wind up and liquidate its business and affairs under § 43-38-1009 and notify claimants under § 43-38-1010.
- (d) The administrative dissolution of a cooperative does not terminate the authority of its registered agent.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1005. Reinstatement following administrative dissolution. - (a) A cooperative administratively dissolved under § 43-38-1004 may apply to the secretary of state for reinstatement following administrative dissolution. The application must:
- (1) Recite the name of the cooperative at the date of its administrative dissolution;
- (2) State that the ground or grounds for dissolution either did not exist or have been eliminated; and
- (3) State a cooperative name that satisfies the requirements of § 43-38-105.
- (b)
- (1) If the secretary of state determines that the application contains the information required by subsection (a) and that the information is correct, the secretary of state shall cancel the certificate of dissolution and prepare a certificate of reinstatement that recites the secretary of state's determination and the effective date of reinstatement, file the original of the certificate, and serve a copy on the cooperative in accordance with § 43-38-110.
- (2) If the cooperative name in subdivision (a)(3) is different than the cooperative name in subdivision (a)(1), the application of reinstatement shall constitute an amendment to the articles insofar as it pertains to the cooperative's name.
- (c) When the reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the cooperative shall resume carrying on its business as if the administrative dissolution had never occurred.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1006. Appeal from denial of reinstatement. - (a) If the secretary of state denies a cooperative's application for reinstatement following administrative dissolution, the secretary of state shall serve the cooperative under §§ 43-38-110 and 43-38-111 with a written notice that explains the reason or reasons for denial.
- (b) The cooperative may appeal the denial of reinstatement to the chancery court of Davidson County within thirty (30) days after service of the notice of denial. The cooperative may appeal by petitioning the court to set aside the dissolution and attaching to the petition copies of the secretary of state's certificate of dissolution, the cooperative's application for reinstatement, and the secretary of state's notice of denial.
- (c) The court may summarily order the secretary of state to reinstate the dissolved cooperative or may take other action the court considers appropriate.
- (d) The court's final decision may be appealed as in other civil proceedings.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1007. Articles of termination following administrative dissolution. - (a) When a cooperative that has been administratively dissolved wishes to terminate its existence, it may do so without first being reinstated, by delivering to the secretary of state for filing articles of termination following administrative dissolution setting forth:
- (1) The name of the cooperative;
- (2) The date that termination of cooperative existence was authorized;
- (3) That the resolution authorizing termination was duly adopted by the members;
- (4) A copy of the resolution or the written consent authorizing the termination; and
- (5) A statement that all the assets of the cooperative have been distributed to its creditors and members.
- (b) If the secretary of state finds that the articles of termination following administrative dissolution comply with the requirements of subsection (a), the secretary of state shall file the articles of termination following administrative dissolution. Upon this filing, the existence of the cooperative shall cease, except that the termination of cooperative existence shall not take away or impair any remedy to or against the cooperative or its members, directors or officers for any right or claim existing or any liability incurred, prior to the termination. Any such action or proceeding by or against the cooperative may be prosecuted or defended by the cooperative in its cooperative name. The members, directors or officers shall have the power to take such cooperative or other action as may be appropriate to protect the remedy, right or claim.
- (c) Sections 43-38-1003 — 43-38-1007 shall apply to the administrative dissolution of any domestic cooperative.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1008. Filing notice of dissolution and effect. - (a) If dissolution of the cooperative is approved pursuant to § 43-38-1002(a), the cooperative shall file with the secretary of state a notice of dissolution that contains:
- (1) The name of the cooperative; and
- (2) If the dissolution is approved pursuant to § 43-38-1002(f), the date of the meeting at which the resolution was approved, and a statement that the requisite vote of the members was received, or that members validly took action without a meeting.
- (b) When the notice of dissolution has been filed with the secretary of state, the cooperative shall cease to carry on its business, except to the extent necessary for the winding up of the business of the cooperative. The members shall retain the right to revoke the dissolution in accordance with § 43-38-1013 and the right to remove or appoint directors or officers. The cooperative existence continues to the extent necessary to wind up the affairs of the cooperative until the dissolution is revoked or articles of termination are filed with the secretary of state.
- (c) As part of winding up, the cooperative may participate in a merger with another cooperative or one (1) or more domestic business entities under §§ 43-38-122 and 43-38-123, but the dissolved cooperative shall not be the surviving business entity.
- (d) The filing with the secretary of state of a notice of dissolution does not affect any remedy in favor of the cooperative or any remedy against it or its members, directors, or officers in those capacities, except as provided in § 43-38-1010.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1009. Collection and payment of debts — Transfer of assets — Distribution to members. - (a) After the notice of intent to dissolve has been filed with the secretary of state, the board, or the officers acting under the direction of the board, shall proceed as soon as possible to:
- (1) Collect or make provision for the collection of all debts due or owing to the cooperative, including unpaid subscriptions for shares; and
- (2) Pay or make provision for the payment of all debts, obligations and liabilities of the cooperative according to their priorities.
- (b) After the notice of intent to dissolve has been filed with the secretary of state, the board may sell, lease, transfer or otherwise dispose of all or substantially all of the property and assets of the dissolving cooperative without a vote of the members.
- (c) Tangible and intangible property, including money, remaining after the discharge of the debts, obligations and liabilities of the cooperative may be distributed to the members and former members as provided in the bylaws. If previously authorized by the members, the tangible and intangible property of the cooperative may be liquidated and disposed of at the discretion of the board.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1010. Known and unknown claims against cooperative. - (a) When a notice of dissolution has been filed with the secretary of state, and the business of the cooperative is not to be wound up and terminated by merging the dissolved cooperative into a successor organization under § 43-38-122, then the cooperative may give notice of the filing to each creditor of and claimant against the cooperative, known or unknown, present or future, and contingent or noncontingent, in accordance with subsections (b) and (c).
- (b)
- (1) A cooperative may dispose of the known claims against it by following the procedure described in this subsection (b).
- (2) The dissolved cooperative shall notify its known claimants in writing of the dissolution at any time after the effective date of the dissolution. The written notice must:
- (A) Describe information that must be included in a claim;
- (B) State whether the claim is admitted, or not admitted, and if admitted:
- (i) The amount that is admitted, which may be as of a given date; and
- (ii) Any interest obligation if fixed by an instrument of indebtedness;
- (C) Provide a mailing address where a claim may be sent;
- (D) State the deadline, which may not be fewer than four (4) months from the effective date of the written notice, by which the dissolved cooperative must receive the claim; and
- (E) State that, except to the extent that any claim is admitted, the claim will be barred if written notice of the claim is not received by the deadline.
- (3) A claim against the dissolved cooperative is barred to the extent that the dissolved cooperative delivered written notice to the claimant:
- (A) In accordance with subdivision (b)(2) and the claimant did not deliver a written notice of the claim to the dissolved cooperative by the deadline; or
- (B) That the claimant's claim is rejected, in whole or in part, and the claimant did not commence a proceeding to enforce the claim within three (3) months from the effective date of the rejection notice.
- (4) For purposes of this section, “claim” does not include a contingent liability or a claim based on an event occurring after the effective date of dissolution.
- (5) For purposes of this section, written notice is effective at the earliest of the following:
- (A) When received;
- (B) Five (5) days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed;
- (C) On the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt signed by or on behalf of the addressee; or
- (D) Twenty (20) days after deposit in the United States mail, as evidenced by the postmark if mailed correctly addressed, and with other than first class, registered or certified postage affixed.
- (c)
- (1) A dissolved cooperative may also publish notice of its dissolution and request that persons with claims against the cooperative present them in accordance with the notice.
- (2) The notice must:
- (A) Be published one (1) time in a newspaper of general circulation in the county where the dissolved cooperative's principal executive office is or was last located;
- (B) Describe the information that must be included in a claim and provide a mailing address where the claim may be sent; and
- (C) State that a claim against the cooperative will be barred unless a proceeding to endorse the claim is commenced within two (2) years after the publication of the notice.
- (3) If the cooperative publishes a newspaper notice in accordance with subsection (b), the claim of each of the following claimants is barred unless the claimant commences a proceeding to endorse the claim against the dissolved cooperative within two (2) years after the publication date of the newspaper notice:
- (A) A claimant who did not receive written notice under subsection (b);
- (B) A claimant whose claim was timely sent to the dissolved cooperative but not acted on; or
- (C) A claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.
- (4) A claim may be enforced under this subsection (c):
- (A) Against the dissolved cooperative, to the extent of its undistributed assets; or
- (B) If the assets have been distributed in liquidation, against a member of the dissolved cooperative to the extent of the member's pro rata share of the claim or the cooperative assets distributed to the member in liquidation, whichever is less, but a member's total liability for all claims under this subsection (c) may not exceed the total amount of assets distributed to the member.
- (d) If the dissolved cooperative does not comply with subsections (b) and (c), claimants against the cooperative may enforce their claims:
- (1) Against the dissolved cooperative to the extent of its undistributed assets; or
- (2) If the assets have been distributed in liquidation, against a member of the dissolved cooperative to the extent of the member's pro rata share of the claim or the cooperative assets distributed to the member in liquidation, whichever is less, but a member's total liability for all claims under this section may not exceed the total amount of assets distributed to the member; provided however, that a claim may not be enforced against a member of a dissolved cooperative who received a distribution in liquidation after three (3) years from the date of the filing of articles of termination.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1011. Claims against dissolving cooperative. - The claim of a creditor or claimant against a dissolving cooperative is barred if the claim has not been enforced by initiating legal, administrative or arbitration proceedings concerning the claim by two (2) years after the date the notice of intent to dissolve is filed with the secretary of state.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1012. Filing of articles of termination upon dissolution and completion of winding up of cooperative. - (a) The articles of termination shall be filed with the secretary of state upon the dissolution and the completion of winding up the cooperative.
- (b) Articles of termination shall set forth:
- (1) The name of the cooperative;
- (2) The date of filing of its articles of organization;
- (3) The reason for the filing of the articles of termination;
- (4) Whether known and potential creditors and claimants have been notified of the dissolution under § 43-38-1010; and
- (5) Any other information that the person filing the articles of termination determines necessary or desirable to include.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1013. Revocation of dissolution proceedings. - (a) Dissolution proceedings may be revoked before the articles of dissolution are filed with the secretary of state.
- (b) The chair may call a members' meeting to consider the advisability of revoking the dissolution proceedings. The question of the proposed revocation shall be submitted to the members at the members' meeting called to consider the revocation. The dissolution proceedings are revoked if the proposed revocation is approved at the members' meeting by a majority of the members of the cooperative, or for a cooperative with articles or bylaws requiring a greater number of members, the number of members required by the articles or bylaws.
- (c) After the revocation of dissolution is authorized, the cooperative may revoke the dissolution by delivering to the secretary of state for filing articles of revocation of dissolution that set forth:
- (1) The name of the cooperative;
- (2) The effective date of the dissolution that was revoked;
- (3) The date that the revocation of dissolution was authorized;
- (4) If the cooperative board of directors, or incorporators, revoked the dissolution, a statement to that effect;
- (5) If the cooperative's board of directors revoked a dissolution authorized by the members, a statement that revocation was permitted by action by the board of directors alone pursuant to that authorization; and
- (6) If member action was required to revoke the dissolution, a statement that the resolution was duly adopted by the members and a copy of the resolution or the written consent authorizing the revocation of dissolution.
- (d) If a revocation of dissolution is effective, it relates back to and takes effect upon the effective date of the dissolution and the cooperative shall resume carrying on its business as if dissolution had never occurred.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1014. Termination of existence. - The existence of the cooperative is terminated upon the filing of articles of termination with the secretary of state.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1015. Dissolution under the supervision of the court. - After a notice of intent to dissolve has been filed with the secretary of state and before a certificate of dissolution has been issued, the cooperative or, for good cause shown, a member or creditor, may apply to a court within the county where the registered address is located to have the dissolution conducted or continued under the supervision of the court as provided in § 43-38-1018.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1016. Judicial intervention. - A court may grant any equitable relief it considers just and reasonable in the circumstances or may dissolve a cooperative or direct that the dissolved entity is merged into another or new cooperative or other entity on the terms and conditions the court deems equitable.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1017. Judicial dissolution. - (a) On application by the attorney general and reporter, or by or for a member, the court may decree dissolution of a cooperative whenever it is not reasonably practicable to carry on the business in conformity with the articles and the operating agreement.
- (b) The dissolution is effective upon the decree of dissolution becoming final and not eligible for appeal. The decree shall be filed with the office of the secretary of state.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1018. Procedure for judicial dissolution. - (a) In dissolution proceedings, before a hearing is completed, the court may:
- (1) Issue injunctions;
- (2) Appoint receivers with all powers and duties that the court directs;
- (3) Take actions required to preserve the cooperative's assets wherever located; and
- (4) Carry on the business of the cooperative.
- (b) After a hearing is completed, on notice the court directs to be given to parties to the proceedings and to other parties in interest designated by the court, the court may appoint a receiver to collect the cooperative's assets, including amounts owing to the cooperative by subscribers on account of an unpaid portion of the consideration for the issuance of shares. A receiver has authority, subject to the order of the court, to continue the business of the cooperative and to sell, lease, transfer, or otherwise dispose of the property and assets of the cooperative either at public or private sale.
- (c) The assets of the cooperative or the proceeds resulting from a sale, lease, transfer, or other disposition shall be applied in the following order of priority:
- (1) The costs and expenses of the proceedings, including attorneys' fees and disbursements;
- (2) Debts, taxes and assessments due the United States, this state and other states in that order;
- (3) Claims duly proved and allowed to employees under the workers' compensation act, except that claims under this clause may not be allowed if the cooperative has carried workers' compensation insurance, as provided by law, at the time the injury was sustained;
- (4) Claims, including the value of all compensation paid in a medium other than money, proved and allowed to employees for services performed within three (3) months preceding the appointment of the receiver, if any; and
- (5) Other claims proved and allowed.
- (d) After payment of the expenses of receivership and claims of creditors are proved, the remaining assets, if any, may be distributed to the members or distributed pursuant to an approved liquidation plan.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1019. Receivership. - (a) A receiver shall be a natural person or a domestic corporation in this state. A receiver shall give a bond as directed by the court with the sureties required by the court.
- (b) A receiver may sue and defend in all courts as receiver of the cooperative. The court appointing the receiver has exclusive jurisdiction of the cooperative and its property.
- (c) The receiver and the court appointed receiver shall have the same powers and duties as a court appointed receiver would have pursuant to § 48-24-303.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1020. Filing of claims. - (a) In proceedings to dissolve a cooperative, the court may require all creditors and claimants of the cooperative to file their claims under oath with the court administrator or with the receiver in a form prescribed by the court.
- (b) If the court requires the filing of claims, the court shall:
- (1) Set a date, by order, at least one hundred twenty (120) days after the date the order is filed, as the last day for the filing of claims; and
- (2) Prescribe the notice of the fixed date that shall be given to creditors and claimants.
- (c) Before the fixed date, the court may extend the time for filing claims. Creditors and claimants failing to file claims on or before the fixed date may be barred, by order of court, from claiming an interest in or receiving payment out of the property or assets of the cooperative.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1021. Discontinuation of dissolution for lack of cause. - The involuntary or supervised voluntary dissolution of a cooperative may be discontinued at any time during the dissolution proceedings, if it is established that cause for dissolution does not exist. The court shall dismiss the proceedings and direct the receiver, if any, to redeliver to the cooperative its remaining property and assets.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1022. Court order dissolving cooperative. - (a) In an involuntary or supervised voluntary dissolution, after the costs and expenses of the proceedings and all debts, obligations and liabilities of the cooperative have been paid or discharged and the remaining property and assets have been distributed to its members, or if its property and assets are not sufficient to satisfy and discharge the costs, expenses, debts, obligations and liabilities, when all the property and assets have been applied so far as they will go to their payment according to their priorities, the court shall enter an order dissolving the cooperative.
- (b) When the order dissolving the cooperative or association has been entered, the cooperative or association is dissolved.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1023. Certified copy of dissolution. - After the court enters an order dissolving a cooperative, the court administrator shall cause a certified copy of the dissolution order to be filed with the secretary of state. The secretary of state may not charge a fee for filing the dissolution order.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1024. Liquidation. - (a) A cooperative shall be dissolved as provided in the articles in a manner consistent with other business entities organized in this state, or if not provided, may be dissolved in the same manner as a limited liability company organized in this state; or the members may authorize a liquidation by adopting a resolution at a members' meeting. The liquidation may occur with or without a vote of dissolution. The notice of the members' meeting shall include a statement that the disposition of all or substantially all of the assets of the cooperative will be considered at the meeting. If a quorum is present in person, by mail ballot, or alternative method approved by the board at the members' meeting, the resolution approving of the liquidation is adopted if:
- (1) Approved by two thirds (⅔) of the votes cast; or
- (2) For a cooperative with articles or bylaws requiring more than two thirds (⅔) for approval and other conditions for approval, the resolution is approved by the proportion of the votes cast or a number of total members as required by the articles or bylaws and the conditions for approval in the articles or bylaws have been satisfied.
- (b) The board of directors by resolution may liquidate a cooperative, if the board obtains an opinion of a certified public accountant that the cooperative is unlikely to continue as a business based on its current finances.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1025. Right to sue or defend after dissolution. - After a cooperative has been dissolved, any of its former officers, directors or members may assert or defend, in the name of the cooperative, a claim by or against the cooperative.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1026. Equitable relief — Dissolution and liquidation. - (a) A court may grant equitable relief that it deems just and reasonable in the circumstances or may dissolve a cooperative and liquidate its assets and business:
- (1) In a supervised voluntary dissolution that is applied for by the cooperative;
- (2) In an action by a member when it is established that:
- (A) The directors or the persons having the authority otherwise vested in the board are deadlocked in the management of the cooperative's affairs and the members are unable to break the deadlock;
- (B) The directors or those in control of the cooperative have acted fraudulently, illegally or in a manner unfairly prejudicial toward one (1) or more members in their capacities as members, directors or officers;
- (C) The members of the cooperative are so divided in voting power that, for a period that includes the time when two (2) consecutive regular members' meetings were held, they have failed to elect successors to directors whose terms have expired or would have expired upon the election and qualification of their successors;
- (D) The cooperative assets are being misapplied or wasted; or
- (E) The period of duration as provided in the articles has expired and has not been extended as provided in this chapter;
- (3) In an action by a creditor when:
- (A) The claim of the creditor against the cooperative has been reduced to judgment and an execution on the judgment has been returned unsatisfied; or
- (B) The cooperative has admitted in writing that the claim of the creditor against the cooperative is due and owing and it is established that the cooperative is unable to pay its debts in the ordinary course of business; or
- (4) In an action by the attorney general and reporter to dissolve the cooperative in accordance with this subsection (a), when it is established that a decree of dissolution is appropriate.
- (b) In determining whether to order equitable relief or dissolution, the court shall take into consideration the financial condition of the cooperative, but may not refuse to order equitable relief or dissolution solely on the ground that the cooperative has accumulated operating net income or current operating net income.
- (c) In deciding whether to order dissolution of the cooperative, the court shall consider whether lesser relief suggested by one (1) or more parties, such as a form of equitable relief or a partial liquidation, would be adequate to permanently relieve the circumstances established under subdivision (a)(2)(B) or (a)(2)(C). Lesser relief may be ordered if it would be appropriate under the facts and circumstances of the case.
- (d) If the court finds that a party to a proceeding brought under this section has acted arbitrarily, vexatiously, or otherwise not in good faith, the court may in its discretion award reasonable expenses, including attorneys' fees and disbursements, to any of the other parties.
- (e) Proceedings under this section shall be brought in a court within the county where the registered address of the cooperative is located.
- (f) It is not necessary to make members parties to the action or proceeding unless relief is sought against them personally.
History (1)
- Acts 2004, ch. 534, § 32.
§ 43-38-1027. Claims procedure. - (a) A person who is or who becomes a creditor or claimant before, during, or following the conclusion of dissolution proceedings, who does not file a claim or pursue a remedy in a legal, administrative or arbitration proceeding during the pendency of the dissolution proceeding, or has not initiated a legal, administrative, or arbitration proceeding before the commencement of the dissolution proceedings, and all those claiming through or under the creditor or claimant, are forever barred from suing on that claim or otherwise realizing upon or enforcing it, except as provided in this section.
- (b) Within one (1) year after articles of dissolution have been filed with the secretary of state pursuant to this chapter or a dissolution order has been entered, a creditor or claimant who shows good cause for not having previously filed the claim may apply to a court in this state to allow a claim:
- (1) Against the cooperative to the extent of undistributed assets; or
- (2) If the undistributed assets are not sufficient to satisfy the claim, the claim may be allowed against a member to the extent of distributions in dissolution received by the member.
- (c) Debts, obligations and liabilities incurred during dissolution proceedings shall be paid or provided for by the cooperative before the distribution of assets to a member. A person to whom this kind of debt, obligation, or liability is owed but is not paid may pursue any remedy against the officers, directors or members of the cooperative before the expiration of the applicable statute of limitations. This subsection (c) does not apply to dissolution under the supervision or order of a court.
History (1)
- Acts 2004, ch. 534, § 32.
Part 11 Document Requirements § 43-38-1101. Filing requirements. - (a) The form and filing of a document must satisfy the requirements of this section, and of all other applicable sections or rules that add to these requirements, to be entitled to filing by the secretary of state.
- (b) This chapter must require or permit filing the document in the office of the secretary of state.
- (c) The document must contain the information required by this chapter and any applicable rules. It may contain other information as well.
- (d) The document must be capable of being printed in ink in a clear and legible fashion on one (1) side of letter size paper.
- (e) The document must be in the English language. A cooperative's or other business entity's name need not be in English, if written in English letters, or Arabic or Roman numerals.
- (f) The document must be executed:
- (1) By the president of the board of directors of a cooperative, or by another of its authorized officers, if a cooperative action is taken;
- (2) If directors of a cooperative have not been selected or the cooperative has not been formed, by an organizer; or
- (3) If the business entity is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary.
- (g) The person executing the document must sign it and state beneath or opposite the signature the person's name and the capacity in which the person signs. The document may, but need not, contain:
- (1) An attestation by the secretary or an assistant secretary;
- (2) An acknowledgment, verification, or proof; or
- (3) The date the document is signed, except that the date is required for the annual report for the secretary of state.
- (h) If the secretary of state, pursuant to statutory authority, has prescribed a mandatory form for the document, then the document must be in or on the prescribed form.
- (i) The document must be delivered to the office of the secretary of state for filing and must be accompanied by the current filing fee, and any tax, license fee, interest, or penalty required by this chapter. If the secretary of state has prescribed a mandatory method of filing, then the document must be filed in the prescribed manner.
- (j) The document must contain a statement that makes it clear that the document is being filed pursuant to the Tennessee Processing Cooperative Law.
- (k) The secretary of state may promulgate appropriate rules establishing acceptable methods for execution of any document to be filed with the secretary of state.
- (l) Notwithstanding any other law to the contrary, whenever this title requires that an application or other document submitted to the secretary of state for filing be accompanied by a certificate from the commissioner of revenue reciting that the business has properly filed all reports and paid all required taxes and penalties, the certificate requirement is met, and a paper certificate need not accompany the application or other document, if the commissioner provides to the secretary of state electronic verification of the required information. Upon request of the person seeking certificate information, the commissioner shall provide to the secretary of state verification in lieu of a paper certificate.
- (m) Any Tennessee cooperative that has not timely filed with the department of revenue such information as required by the commissioner of revenue under prior law is subject to administrative dissolution in accordance with the procedures specified in § 43-38-1004. Upon certification by the commissioner that it has complied with the information reporting requirements that were required under prior law, a cooperative that has been administratively dissolved or that has had its certificate of authority revoked for failure to timely file this information may be reinstated.
History (2)
- Acts 2004, ch. 534, § 33
- 2020, ch. 719, § 1.
§ 43-38-1102. Forms and filing methods. - The secretary of state may prescribe and furnish forms and filing methods for all filings required by this title. If the secretary of state so requires, then use of these forms and filing methods is mandatory.
History (2)
- Acts 2004, ch. 534, § 33
- 2020, ch. 719, § 2.
§ 43-38-1103. Filing, service and copying fees. - (a) The office of the secretary of state shall collect the following fees when the documents described in this chapter are delivered for filing; and for purposes of this chapter, no document is considered delivered to the office of the secretary of state for filing unless accompanied by the fee:
- DocumentFee
- (1) Articles including designation of initial registered office and agent as provided in subsection (d)
- (2) Certificate of formation$20.00
- (3) Application for reserved cooperative name20.00
- (4) Application for use of indistinguishable name20.00
- (5) Notice of transfer of cancellation of reserved name20.00
- (6) Application for and renewal of registered name20.00
- (7) Application for or change, cancellation, or renewal of assumed name20.00
- (8) Cooperative's statement of change of registered agent, registered office, or both20.00
- (9) Agent's statement of change of registered office5.00 (per cooperative, but not less than 20.00)
- (10) Agent's statement of resignation20.00
- (11) Articles of amendment20.00
- (12) Amended and restated articles20.00
- (13) Restatement of articles20.00
- (14) Articles of correction20.00
- (15) Certificate of merger100.00
- (16) Articles of termination by organizers20.00
- (17) Notice of dissolution20.00
- (18) Articles of revocation or dissolution20.00
- (19) Articles of termination20.00
- (20) Certificate of administrative dissolutionNo fee
- (21) Application for reinstatement following administrativedissolution70.00
- (22) Articles of termination following administrative dissolution100.00
- (23) Certificate of reinstatementNo fee
- (24) Decree of judicial dissolutionNo fee
- (25) Annual reportas provided in subsection (d)
- (26) Any other document required or permitted to be filed by this chapter20.00
- (b) The secretary of state shall collect a fee of twenty dollars ($20.00) each time process is served on the secretary of state under this chapter. The party to a proceeding causing service of process is entitled to recover this fee as costs, if it prevails in the proceeding.
- (c) The secretary of state shall collect a fee of twenty dollars ($20.00) for copying all filed documents relating to a cooperative. All such copies will be certified or validated by the secretary of state.
- (d) The secretary of state shall collect from each cooperative, if applicable, an annual fee equal to fifty dollars ($50.00) per each cooperative member in existence on the date of the initial filing, and each year thereafter, based on the number of cooperative members in existence on the date of the filing for the annual report, with a minimum fee of three hundred dollars ($300) and a maximum fee of three thousand dollars ($3,000).
- (e) In addition to the other filing requirements of this chapter, a copy of all documents specified in subdivisions (a)(1) and (a)(11)-(a)(20) shall also be filed in the office of the register of deeds in the county where a cooperative has its principal office, if the principal office is in Tennessee, and in the case of a merger, in the county in which the new or surviving cooperative shall have its principal office, if the principal office is in Tennessee. The register of deeds may charge five dollars ($5.00), plus fifty cents (50¢) per page in excess of five (5) pages for this filing.
History (1)
- Acts 2004, ch. 534, § 33.
§ 43-38-1104. Corrections. - (a) A cooperative may correct a document filed with the office of the secretary of state, if the document:
- (1) Contains an incorrect statement; or
- (2) Was defectively executed, attested, sealed, certified, or acknowledged.
- (b) A document is corrected:
- (1) By preparing articles of correction that:
- (A) Describe the document, including its filing date, or attach a copy of it to the articles;
- (B) Specify the incorrect statement and the reason it is incorrect or the manner in which the execution was defective; and
- (C) Correct the incorrect statement of defective execution; and
- (2) By delivering the articles of correction to the office of the secretary of state for filing.
- (c) Articles of correction are effective on the effective time and date of the document they correct, except as to persons relying on the uncorrected document and adversely affected by the correction. As to those persons, articles of correction are effective when filed.
History (1)
- Acts 2004, ch. 534, § 33.
§ 43-38-1105. Filing duty of secretary of state. - (a) If the form and filing of a document delivered to the office of the secretary of state for filing satisfies the requirements of this section, and of all other applicable sections or rules that add to these requirements, then the secretary of state must file it.
- (b) The secretary of state files a document by stamping or otherwise endorsing “Filed”, together with the secretary of state's name and official title and the date and time of receipt, on the document. After filing a document, except for filings pursuant to §§ 43-38-109 and 43-38-120, the secretary of state shall deliver the document, with the filing fee receipt attached, or acknowledgment of receipt if no fee is required, to the cooperative or its representative in due course. A cooperative or its representative may present to the office of the secretary of state an exact or conformed copy of the document presented for filing, together with the document; and, in that event, the secretary of state shall stamp or otherwise endorse the exact or conformed copy “Filed”, together with the secretary of state's name and official title and the date and time of receipt, and immediately return the exact or conformed copy to the party filing the original of the document.
- (c) If the secretary of state refuses to file a document, then the secretary of state shall return it to the cooperative or its representative immediately after the document was received for filing, together with a brief, written explanation of the reason for the refusal.
- (d) The secretary of state's duty to file documents under this section is ministerial. The secretary of state's filing or refusing to file a document does not:
- (1) Affect the validity or invalidity of the document in whole or in part;
- (2) Relate to the correctness or incorrectness of information contained in the document;
- (3) Create a presumption that the document is valid or invalid or that information contained in the document is correct or incorrect; or
- (4) Establish that a document purporting to be an exact or conformed copy is in fact an exact or conformed copy.
- (e) Any cooperative document that meets the requirements of this chapter and all applicable rules for filing and recording must be received, filed, and recorded by the appropriate office, upon payment of the appropriate fees and taxes, if any, notwithstanding any contrary requirements found in any other laws of this state.
History (2)
- Acts 2004, ch. 534, § 33
- 2020, ch. 719, § 3.
§ 43-38-1106. Appeal of refusal to file document. - (a) If the secretary of state refuses to file a document delivered to the office of the secretary of state for filing, the cooperative may appeal the refusal to the chancery court of Davidson County. The appeal is commenced by petitioning the court to compel filing the document and by attaching to the petition the document and the secretary of state's explanation of the refusal to file.
- (b) The court may summarily order the secretary of state to file the document or take other action the court considers appropriate.
- (c) The court's final decision may be appealed as in other civil proceedings.
- (d) Any judicial review of the secretary of state's refusal to file a document shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
History (1)
- Acts 2004, ch. 534, § 33.
§ 43-38-1107. Copy as evidence. - A certificate attached or certification affixed to a copy of a document filed by the secretary of state, bearing the secretary of state's signature, which may be in facsimile, and the seal of this state, is conclusive evidence that the original document is on file with the secretary of state.
History (1)
- Acts 2004, ch. 534, § 33.
§ 43-38-1108. Penalty for signing false document. - (a) A person commits a Class B misdemeanor, punishable by a fine not to exceed five hundred dollars ($500), if the person signs a document, knowing it to be false in any material respect with intent that the document be delivered to the office of the secretary of state or other required office for filing.
- (b) The offense created by this section is in addition to any other offense created by law for the same conduct.
History (1)
- Acts 2004, ch. 534, § 33.
§ 43-38-1109. Effective time and date of document. - (a) Except as provided in subsection (b), and in §§ 43-38-202 and 43-38-1104(c), a document accepted for filing is effective:
- (1) At the time of filing on the date it is filed by the secretary of state, as evidenced by the office of the secretary of state's date and time endorsement on the original document; and
- (2) At the time specified in the document as its effective time on the date it is filed.
- (b) A document may specify a delayed effective time and date, and if it does so, the document becomes effective at the time and date specified. If a delayed effective date but not time is specified, the document is effective at the close of business on that date. A delayed effective date for a document may not be later than the ninetieth day after the date it is filed with the office of the secretary of state.
- (c) The office of the secretary of state shall not file any articles unless that document designates the registered agent and registered office of such cooperative in accordance with § 43-38-107. The office of the secretary of state shall not file any other document presented by the cooperative for filing under this chapter, if at the time of filing, the cooperative does not have a registered agent and registered office designated at that time, unless at the time the document is received for filing, the office of the secretary of state also receives for filing a statement designating a registered agent or registered office or both.
History (1)
- Acts 2004, ch. 534, § 33.
Chapter 39 Agritourism § 43-39-101. Chapter definitions. - For purposes of this chapter, unless the context otherwise requires:
- (1) “Agritourism activity” means any activity carried out on a farm or ranch, eligible for greenbelt classification under title 67, chapter 5, part 10, that allows members of the general public, for recreational, entertainment or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, harvest-your-own activities or natural activities and attractions. An activity is an “agritourism activity” whether or not a participant provides compensation in money or other valuable compensation to participate in the activity. “Agritourism activity” includes an activity involving any animal exhibition at an agricultural fair, regardless of the location of the fair;
- (2) “Agritourism professional” means any person who is engaged in the business of providing one (1) or more agritourism activities, whether or not for compensation;
- (3)
- (A) “Inherent risks of agritourism activity” means those dangers, conditions or hazards that are an integral part of an agritourism activity, including, but not limited to:
- (i) Surface and subsurface conditions;
- (ii) Natural conditions of land, vegetation and waters;
- (iii) The behavior of wild or domestic animals; and
- (iv) Ordinary dangers of structures or equipment ordinarily used in farming and ranching operations.
- (B) “Inherent risks of agritourism activity” also include the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, including failing to follow instructions given by an agritourism professional or failing to exercise reasonable caution while engaging in an agritourism activity;
- (4) “Participant” means any person, other than the agritourism professional, who engages in an agritourism activity; and
- (5) “Person” means an individual, fiduciary, firm, association, partnership, limited liability company, corporation, unit of government or any other group acting as a unit.
§ 43-39-102. Immunity from liability for injury or death. - (a) Except as provided in subsection (b):
- (1) No agritourism professional is liable for injury to or death of a participant, or damage to a participant's property, resulting solely from the inherent risks of agritourism activities, as long as the warning contained in § 43-39-103(b) is posted as required; and
- (2) A participant or participant's representative shall not maintain an action against or recover from an agritourism professional for injury, loss, damage, including, but not limited to property damage, or death of the participant resulting exclusively from any of the inherent risks of agritourism activities.
- (b) Nothing in subsection (a) prevents or limits the liability of an agritourism professional if the agritourism professional or any of its agents does any one (1) or more of the following:
- (1) Commits an act or omission that constitutes reckless disregard for the safety of the participant or the participant's property, and that act or omission proximately causes injury, damage, or death to the participant, or damage to the participant's property;
- (2) Has actual knowledge or reasonably should have known of a dangerous condition on the land, facilities, or equipment used in the activity or the dangerous propensity of a particular animal used in the activity and does not make the danger known to the participant, and the danger proximately causes injury, damage, or death to the participant, or damage to the participant's property;
- (3) Fails to train, or improperly or inadequately trains, employees who are actively involved in agritourism activities, and an act or omission of the employee proximately causes injury, damage, or death to the participant, or damage to the participant's property;
- (4) Intentionally injures the participant, or damages the participant's property; or
- (5) Commits any other act, error, or omission that constitutes willful or wanton misconduct, gross negligence, or criminal conduct.
- (c) Nothing in subsection (a):
- (1) Prevents or limits the liability of an agritourism professional under the product liability provisions in title 29, chapter 28; or
- (2) Shall be construed so as to negate that assumption of the risk is an affirmative defense.
- (d) Any limitation on legal liability afforded by this section to an agritourism professional is in addition to any other limitations of legal liability otherwise provided by law.
History (2)
- Acts 2009, ch. 498, § 3
- 2020, ch. 683, § 1.
§ 43-39-103. Warning notice. - (a)
- (1) Every agritourism professional shall post and maintain a sign that contains the warning notice specified in subsection (b). The sign shall be placed in a clearly visible location at the entrance to the agritourism location and at the site of the agritourism activity. The warning notice shall consist of a sign in black letters, with each letter to be a minimum of one inch (1″) in height.
- (2) Every written contract entered into by an agritourism professional for the providing of professional services, instruction or the rental of equipment to a participant for purposes of engaging in or participating in an agritourism activity, whether or not the contract involves agritourism activities on or off the site of the agritourism activity, shall contain in clearly readable print the warning notice specified in subsection (b).
- (b) The signs and contracts described in subsection (a) shall contain the following language or substantially similar language:
-
- (c) Failure to comply with this section shall prevent an agritourism professional from invoking the privileges of immunity provided by this chapter.
History (2)
- Acts 2009, ch. 498, § 4
- 2020, ch. 683, § 2.
Chapter 40 Forest Product Fairness Act § 43-40-102. Purpose. - The general assembly recognizes the enormous contribution that the Tennessee forest products industry makes to the state. The continued health of the industry is vital to Tennessee's economic well-being. A fair and equitable process for awarding state incentives to the forest products industry is necessary to maintain economic viability. The purpose of this chapter is to provide for a procedure that will ensure an open process for the awarding of incentives, that encourages the use of forest products but does not give an unfair advantage to one (1) segment of the forest products industry over another, and that does not put existing businesses at a competitive disadvantage.
§ 43-40-103. Chapter definitions. - As used in this chapter, unless the context otherwise requires:
- (1) “Commissioner” means the commissioner of agriculture;
- (2) “Forest products” include the following:
- (A) Products that are derived from woody biomass;
- (B) Forest wood waste, including residual tops and limbs of trees, unused cull trees, pre-commercial thinnings, and wood or debris from noncommercial tree species, slash or brush; and
- (C) Any wood chips or fibers or other organic substances and any inorganic substances recovered from forest wood waste or produced as byproducts of processing wood; and
- (3) “Incentives” means any tax exemption, tax credit, tax exclusion, tax deduction, rebate, investment, contract, or grant made available by the state to directly support the purchase of forest products. “Incentives” shall not mean any such benefit available under statutorily provided programs.
§ 43-40-104. Incentives. - Incentives to directly support the purchase of forest products shall be approved by the commissioner through a fair and equitable process prior to being awarded. The process shall be open to individuals and both new and existing partnerships, corporations, associations, or other legal entities.
§ 43-40-105. Rules and regulations. - The commissioner of agriculture is authorized to promulgate rules and regulations to effectuate the purposes of this chapter, after consulting with the commissioner of economic and community development. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
2024 Tennessee Code Unannotated