Senate Bill text for SB0221

SENATE BILL 221

49th legislature - STATE OF NEW MEXICO - second session, 2010

INTRODUCED BY

John Arthur Smith

AN ACT

RELATING TO AGRICULTURE; TRANSFERRING THE FUNCTIONS, RECORDS, PERSONNEL, APPROPRIATIONS, MONEY, EQUIPMENT, SUPPLIES AND OTHER PROPERTY OF THE ORGANIC COMMODITY COMMISSION TO THE NEW MEXICO DEPARTMENT OF AGRICULTURE AND THE DIRECTOR OF THAT DEPARTMENT; AMENDING AND REPEALING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 76-22-4 NMSA 1978 (being Laws 1990, Chapter 122, Section 4, as amended) is amended to read:

"76-22-4. DEFINITIONS.--As used in the Organic Commodity Act:

A. "advertise" means to present a commercial message in any medium, including but not limited to print, radio, television, sign, display, label, tag or oral statement;

B. "agricultural commodity" means any distinctive type of agricultural, horticultural, floricultural, viticultural, vegetable or animal product of any class in its natural or processed state;

C. "assessment" means funds collected by the [commission] department as provided for in the Organic Commodity Act;

D. "certification" means formal verification by a certifying agent that food articles are organically produced;

E. "certification handbook" means a collection of production and handling standards and rules adopted and promulgated by the [commission] department;

F. "certifying agent" means the [commission] department and any other person designated as a certifying agent by the United States department of agriculture;

[G. "commission" means the organic commodity commission;]

G. "department" means the New Mexico department of agriculture;

H. "director" means the director of the New Mexico department of agriculture;

[H.] I. "food article" means any raw or processed agricultural commodity or product derived from livestock, including any fruits, vegetables, berries, eggs, seeds or dairy or grain products marketed in New Mexico for human or animal consumption;

[I.] J. "handle" means to sell, process, transport or package organically produced food articles;

[J.] K. "handler" means any individual in the business of handling organically produced food articles;

[K.] L. "handling operation" means any operation or portion of an operation that:

(1) receives or otherwise acquires organically produced food articles from the producer of those organically produced food articles;

(2) prepares organically produced food articles for market; or

(3) processes, packages, transports or stores organically produced food articles;

[L.] M. "label" means a commercial message in a printed medium that is affixed by any method to a receptacle, including a container or package;

[M.] N. "materials list" means a list of approved and prohibited substances to be determined by the [commission] department, in compliance with the national materials list, and set forth in the certification handbook;

[N.] O. "ombudsman" means [a member of the commission] an employee of the department who has the function of facilitating communication between certified persons and the [commission] department by addressing certified persons' complaints, participating in the fact-finding process, investigating complaints, arbitrating when possible and advocating for the certified person when necessary; except that the ombudsman shall not represent a certified person before the [commission] department or any other fact-finding body;

[O.] P. "organic certification program" means a program designed to ensure that a product is produced, handled, transported and marketed in compliance with the Organic Commodity Act and the federal Organic Foods Production Act of 1990;

[P.] Q. "organically certified farm" means a farm or portion of a farm that is certified by the [commission] department as utilizing organic productive techniques as set forth by the [commission] department in the certification handbook provided for in the Organic Commodity Act;

[Q.] R. "organically certified handling operation" means any handling operation or portion of any handling operation that is certified by the [commission] department and operated by organically certified handlers;

[R.] S. "organically produced label" means a label established for the purpose of indicating compliance with the certification standards promulgated pursuant to provisions of the Organic Commodity Act;

[S.] T. "organically produced" means food articles produced using organic productive techniques on an organically certified farm and handled by an organically certified handling operation;

[T.] U. "organic productive technique" means a system of farming that substitutes appropriate farm management practices for chemical and technological methods and enhances rather than replaces existing biological systems to ensure minimum adverse effects on human health and the environment;

[U.] V. "person" means any individual, group of individuals, corporation, association, cooperative or other entity;

[V.] W. "processing" means cooking, baking, heating, drying, mixing, churning, separating, extracting, cutting, fermenting, eviscerating, preserving, dehydrating, freezing or otherwise manufacturing food articles and includes packaging, canning, jarring or otherwise enclosing such food articles in a container;

[W.] X. "producer" means a person who engages in the business of growing or producing organically produced agricultural commodities; and

[X.] Y. "steward" means an individual appointed by the [commission] department to oversee the verification component of the certification program."

Section 2. Section 76-22-5 NMSA 1978 (being Laws 1990, Chapter 122, Section 5, as amended) is amended to read:

"76-22-5. ORGANIC MARKET DEVELOPMENT FUND CREATED.--There is created in the state treasury the "organic market development fund". No money appropriated to this fund or accruing to it through cooperative research agreements, gifts, grants, bequests, including bequests from a private, public, nonprofit or any other source, advertising, fees from conferences or workshops, civil penalties, sales of promotional items or educational materials, speaker fees, agricultural input approval fees, handbooks, grant administrative costs or any other sources shall be transferred to another fund or encumbered or disbursed in any manner except for activities conducted pursuant to the Organic Commodity Act. The fund shall not revert at the end of any fiscal year. All interest earned on the fund shall remain in the fund. Disbursements from the fund shall be made only upon warrant drawn by the secretary of finance and administration pursuant to vouchers signed by the [chairman of the commission or his] director or the director's designee for the purpose of paying the cost of the [commission's] department's activities conducted pursuant to the Organic Commodity Act."

Section 3. Section 76-22-7 NMSA 1978 (being Laws 1990, Chapter 122, Section 7, as amended) is amended to read:

"76-22-7. ORGANIC COMMODITY [COMMISSION]--DEPARTMENT POWERS AND DUTIES.--The [commission] department:

A. shall adopt and promulgate certification standards for the production and handling of organically produced food articles in the state. The certification standards shall include agricultural commodities used but not consumed as foods by humans and animals. The standards shall be compiled in a certification handbook to be included in the annual report to the legislature;

B. shall conduct studies to increase commercial value of and discover new markets for organically produced food articles;

C. shall disseminate reliable information relative to market conditions, current prices and sources of supply and demand for organically produced food articles;

D. may sue and be sued as a [commission] department, without individual liability for acts of the [commission] department within the scope of the powers conferred by the Organic Commodity Act;

E. may enter into contracts;

F. may appoint subordinate officers and employees of the [commission] department, prescribe their duties and fix their compensation;

G. shall cooperate with local, state or national organizations or government agencies engaged in activities similar to that of the [commission] department;

H. shall adopt, rescind, modify or amend regulations, orders and resolutions for the exercise of its powers and duties after providing public notice and the opportunity for public comment on the action;

I. shall adopt the federal materials list upon its promulgation and shall prepare a registration program for all purveyors of these materials and an assessment schedule for the purveyors of the class of materials appearing on that list; and

J. is designated as the "state organic program" pursuant to the United States department of agriculture's national organic program and, in that capacity, may:

(1) regulate all aspects of the organic agriculture marketplace in New Mexico;

(2) take all actions necessary to ensure that all agricultural products in New Mexico that are labeled or represented as "certified organic", "organic" or "made with organic ingredients" have been produced under a valid certification issued by a certifying agent; and

(3) assume investigative and enforcement responsibilities relating to such labeled agricultural products, including products certified by a certifying agent other than the [commission] department and labeled products not certified."

Section 4. Section 76-22-8 NMSA 1978 (being Laws 1990, Chapter 122, Section 8, as amended) is amended to read:

"76-22-8. REPORT OF THE [COMMISSION] DEPARTMENT.--The [commission] department shall review the statutes under which it operates, the state certification program and the contents of the materials list for any conflict with federal statutory enactments or actions of the United States secretary of agriculture at least every two years."

Section 5. Section 76-22-11 NMSA 1978 (being Laws 1990, Chapter 122, Section 11) is amended to read:

"76-22-11. [COMMISSION] DEPARTMENT--LIMITATION ON LIABILITY.--The [members of the commission and] employees of the [commission] department shall not be held individually responsible in any way to any producer, processor, distributor or any other person for errors in judgment, mistakes or other acts, either of commission or omission, as principal, agent, person or employee, except for their individual acts of gross negligence or criminality. No [member or] employee shall be held individually responsible for any act or omission of any other [member or] employee. The liability of the [members of the commission] department's employees shall be several and not joint, and no [member] employee shall be liable for the default of any other [member] employee."

Section 6. Section 76-22-12 NMSA 1978 (being Laws 1990, Chapter 122, Section 12, as amended) is amended to read:

"76-22-12. STANDARDS.--To fulfill the purposes of the Organic Commodity Act, the [commission] department may prescribe and adopt standards relating to the production, handling, processing and distribution of organically produced food articles. [Under this section] The [commission] department is empowered to adopt and promulgate certification standards for the production, handling, processing and distribution of organically produced food articles and agricultural commodities, including setting reasonable application fees and requirements. Where a production or handling practice is not prohibited or otherwise restricted, the practice shall be permitted unless the [commission] department determines that the practice [would be] is inconsistent with the purposes of the Organic Commodity Act."

Section 7. Section 76-22-13 NMSA 1978 (being Laws 1990, Chapter 122, Section 13, as amended) is amended to read:

"76-22-13. ORGANIC CERTIFICATION PROGRAM--GENERALLY.--

A. The [commission] department shall certify any farm or handling operation in New Mexico that meets the requirements of the Organic Commodity Act and standards set forth in the certification handbook.

B. In order for the certification program to be consistent with the provisions of the Organic Commodity Act, the certification program may:

(1) provide that each food article bearing an organically produced label [must] shall be produced on an organically certified farm and handled through an organically certified handling operation in accordance with the Organic Commodity Act;

(2) require the establishment of an organic farm plan;

(3) provide for procedures that allow producers and handlers to appeal an adverse determination [under] pursuant to provisions of the Organic Commodity Act;

(4) provide for an annual, on-site inspection of each farm and handling operation that has been certified [under] pursuant to provisions of this section;

(5) make and publish rules and standards for soil inspection and tissue sampling designed to detect prohibited pesticide or fertilizer residues; and

(6) provide for periodic residue testing of food articles and agricultural commodities that have been produced on organically certified farms and handled by organically certified handling operations to determine whether those products contain any unacceptable residue or otherwise indicate whether the provisions of the organic certification program or the Organic Commodity Act have been violated."

Section 8. Section 76-22-14 NMSA 1978 (being Laws 1990, Chapter 122, Section 14, as amended) is amended to read:

"76-22-14. CERTIFICATION.--Each producer and handler covered by the organic certification program shall certify to the [commission] department, on an annual basis, that [he] the producer or handler has not produced, processed or marketed any food article or agricultural commodity bearing an organically produced label not in compliance with the Organic Commodity Act and the standards set forth in the certification handbook."

Section 9. Section 76-22-14.1 NMSA 1978 (being Laws 2001, Chapter 157, Section 5, as amended) is amended to read:

"76-22-14.1. CERTIFYING AGENTS--REPORTS TO [COMMISSION] DEPARTMENT.--A certifying agent, other than the [commission] department, that certifies any food article in New Mexico as being organically produced shall:

A. simultaneous with its issuance, report to the [commission] department any information regarding denials of certification, notifications of noncompliance, notifications of noncompliance correction, notifications of proposed suspension or revocation and notifications of suspension or revocation sent to any person in New Mexico;

B. on January 2 of each year, submit to the [commission] department a list, including the name, address and telephone number of each operation granted certification in New Mexico during the preceding year; and

C. pay an annual fee to the [commission] department that shall reasonably reflect the cost of enforcing the Organic Commodity Act with respect to that certifying agent."

Section 10. Section 76-22-16 NMSA 1978 (being Laws 1990, Chapter 122, Section 16, as amended) is amended to read:

"76-22-16. LEVY OF ASSESSMENT--ORGANICALLY PRODUCED FOOD ARTICLES--SALES.--

A. The [commission] department may impose and collect assessments as follows:

(1) producers and handlers shall be assessed at an annual rate not to exceed one-half percent of the total gross sales of the organically produced food articles;

(2) certified handling operations may be assessed at an annual rate of one-fourth percent of the total price of the services; and

(3) purveyors of materials as set forth in the federal materials list shall be registered with the [commission] department and assessed at an annual rate not to exceed one-half percent of the total gross sales of the class of materials appearing on that list.

B. The [commission] department, following notice and comment, may adjust the assessment rate up or down by no more than one hundred percent."

Section 11. Section 76-22-17 NMSA 1978 (being Laws 1990, Chapter 122, Section 17) is amended to read:

"76-22-17. SUPPLEMENTAL ASSESSMENT.--

A. The [commission] department may authorize a supplemental assessment to the assessments provided for in the Organic Commodity Act, which shall be collected or paid in the same manner as the assessments.

B. If a supplemental assessment is authorized, it shall not exceed one-fourth of one percent of the total gross sales of the organically produced food articles."

Section 12. Section 76-22-18 NMSA 1978 (being Laws 1993, Chapter 330, Section 12) is amended to read:

"76-22-18. COLLECTION OF ASSESSMENT.--

A. The [commission] department shall set forth in the certification handbook a schedule for payment of all assessments due the [commission] department.

B. The [commission] department may adopt rules providing for an exemption from all or part of assessments due the [commission under] department pursuant to the provisions of the Organic Commodity Act.

C. Failure to pay a due assessment shall result in revocation of certification or assessment of other penalties prescribed by law, upon notice from the [commission] department."

Section 13. Section 76-22-19 NMSA 1978 (being Laws 1990, Chapter 122, Section 19) is amended to read:

"76-22-19. DISPOSITION OF ASSESSMENTS.--The [commission] department shall remit assessments and fees received from producers and handlers of organically produced food articles to the state treasurer for credit to the organic market development fund."

Section 14. Section 76-22-20 NMSA 1978 (being Laws 1990, Chapter 122, Section 20) is amended to read:

"76-22-20. RECORD OF PERSONS REQUIRED TO PAY ASSESSMENT.--Each person required to pay an assessment under the Organic Commodity Act shall keep records sufficient to enable the [commission] department to determine by inspection and audit the accuracy of assessments paid or due to the [commission] department and of reports made or due to the [commission] department. The [commission] department or any person authorized by the [commission] department may inspect and audit the records. The records shall be maintained in compliance with the standards adopted and promulgated under the Organic Commodity Act and set forth in the certification handbook."

Section 15. Section 76-22-21 NMSA 1978 (being Laws 1990, Chapter 122, Section 21) is amended to read:

"76-22-21. PROPRIETARY INFORMATION.--Any information obtained by the [commission] department that is deemed by the [chairman] director to be proprietary, technical or business information shall be held in confidence. Proprietary, technical or business information shall not be deemed a public record as set forth in [Subsection C of] Section 14-3-2 NMSA 1978 or be open to inspection as set forth under Section 14-2-1 NMSA 1978. The [commission] department shall take such steps as are necessary to safeguard the confidentiality of the information."

Section 16. Section 76-22-22 NMSA 1978 (being Laws 1990, Chapter 122, Section 22, as amended) is amended to read:

"76-22-22. STATE ORGANIC CHEMIST--DUTIES.--The [commission] department may designate a "state organic chemist". The state organic chemist shall hold a doctoral degree in chemistry or a related field and shall be knowledgeable and experienced in the techniques used for testing soil and plant and animal tissue for pesticide and fertilizer residues. The chemist may be an employee of a private laboratory or an employee of an agency of the state. The chemist shall perform duties as prescribed by the [commission] department."

Section 17. Section 76-22-23 NMSA 1978 (being Laws 1990, Chapter 122, Section 23, as amended) is amended to read:

"76-22-23. STEWARDS--POWERS AND DUTIES--REVIEW.--The powers and duties of the stewards appointed by the [commission] department shall conform to the minimum standards contained in the federal Organic Foods Production Act of 1990 and shall be set forth in the state certification program."

Section 18. Section 76-22-24 NMSA 1978 (being Laws 1990, Chapter 122, Section 24, as amended) is amended to read:

"76-22-24. STEWARDS--AUTHORITY TO INSPECT.--Stewards appointed by the [commission under the Organic Commodity Act] department may inspect any production, handling, processing or distribution place or vehicle that is certified by the [commission] department or is being considered for certification or any other place or vehicle believed to be in violation of the federal or state provisions that the [commission] department implements. [Any] The inspection shall be conducted during normal business hours."

Section 19. Section 76-22-25 NMSA 1978 (being Laws 1990, Chapter 122, Section 25) is amended to read:

"76-22-25. STEWARDS--INSPECTION.--

A. Stewards appointed by the [commission] department under the Organic Commodity Act shall make at least one announced visit to each certified organic producer and handler per year for the purpose of verifying compliance with the standards of certification set by the [commission] department. Stewards appointed by the [commission] department may make unannounced visits if a need exists.

B. The inspection may entail a survey of required records, an examination of crops and fields and any other information deemed necessary to demonstrate compliance with the requirements of the Organic Commodity Act and the standards set forth in the certification handbook.

C. It shall be the responsibility of the producer or handler to arrange for and bear the costs of additional verification that is deemed necessary by stewards."

Section 20. Section 76-22-26 NMSA 1978 (being Laws 1990, Chapter 122, Section 26, as amended) is amended to read:

"76-22-26. LABELING.--

A. The [commission] department shall establish a label to be affixed to agricultural products that have been produced on organically certified farms and have been handled by organically certified handlers.

B. The label shall state that a food article has been organically produced and shall bear the seal of the [commission] department.

C. Except as otherwise provided in the Organic Commodity Act, the terms "organic", "organically produced", "certified organic", "certified organically grown", "natural", "naturally grown", "pesticide-residue free" or derivatives of these terms shall not be used by any person for advertising, labeling or otherwise affixing the terms to a food article or its container, unless the food article has been produced and marketed in compliance with the provisions of the Organic Commodity Act and certified by a certifying agent.

D. The [commission] department shall have the exclusive authority under the state certification program to approve the affixing of labels to food articles."

Section 21. Section 76-22-27 NMSA 1978 (being Laws 1990, Chapter 122, Section 27, as amended) is amended to read:

"76-22-27. VIOLATIONS AND ENFORCING AUTHORITY--CIVIL PENALTY.--

A. In addition to a civil penalty that may be enforced pursuant to Subsection D of this section, any producer or handler of organically produced food articles who issues a false certification, attempts to have an organically produced label affixed to a food article that the producer or handler knows, or should have known, to have been produced in a manner that is not in compliance with the Organic Commodity Act or otherwise violates the purposes of the certification program, as determined by the [commission] department, shall be subject to the following procedures and penalties:

(1) the [commission] department shall cause notice of the violations to be given to the producer or handler having responsibility for the violation in the form of a complaint; any person so notified shall be given an opportunity to be heard under the rules prescribed by the [commission] department. If the [commission] department finds no violation has occurred, it shall dismiss the complaint and notify the parties to the complaint;

(2) if at the conclusion of the hearing the [commission] department finds that a violation has occurred, either in the presence or absence of the person notified, it shall enter findings to that effect and notify the parties to the complaint. If such a finding is made, the person shall not be eligible to receive certification for a period of five years with respect to any farm or handling operation in which the producer has an interest; and

(3) notwithstanding Paragraph (2) of this subsection, the [commission] department may reduce or eliminate the period of ineligibility if the [commission] department determines that modification or waiver would be in the best interest of the certification program.

B. No person shall be subject to the penalties and procedures described in Subsection A of this section for having violated the provisions of the Organic Commodity Act or the standards contained in the certification handbook if [he] the person possesses a guaranty that states that the food article is labeled in compliance with the Organic Commodity Act and the standards contained in the certification handbook.

C. The [commission] department may apply for, and the court may grant, a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of the Organic Commodity Act or any certification standard adopted and promulgated under that act, notwithstanding the existence of other remedies at law. The injunction shall be issued without bond.

D. Any person who, except in accordance with the provisions of the Organic Commodity Act and rules adopted pursuant to that act, knowingly represents, labels or sells a product as "certified organic", "organic", "made with organic ingredients" or similar language intended to convey the impression that the product is organically produced is subject to a civil penalty of not more than five thousand dollars ($5,000) for each violation. Any penalties collected pursuant to this subsection shall be deposited in the organic market development fund."

Section 22. TEMPORARY PROVISION--TRANSFER OF PERSONNEL, PROPERTY, CONTRACTS, RECORDS AND APPROPRIATIONS.--On July 1, 2010:

A. all records, personnel, appropriations, money, equipment, supplies and other property of the organic commodity commission shall be transferred to the New Mexico department of agriculture;

B. all contracts pursuant to the organic commodity commission shall be binding and effective on the New Mexico department of agriculture; and

C. all references in law to the organic commodity commission shall be deemed to be references to the New Mexico department of agriculture.

Section 23. REPEAL.--Sections 76-22-6 and 76-22-9 NMSA 1978 (being Laws 1990, Chapter 122, Sections 6 and 9, as amended) are repealed.

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